UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-20329

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

TUNJI ADEWAL HASSAN, also known as

Tunji A. Hassan; BABATUNDE M. ODUNTAN;

and AYODEJI OLUSOLA BABATOLA,

also known as Ayodeji O. Babatola,

Defendants-Appellees.

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Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

May 9, 1996

Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:

The Government brings this interlocutory appeal from a

district court order suppressing evidence in the crimi nal

p rosecution of Tunji Hassan, Babatunde Oduntan, and Ayodeji

Babatola (collectively, "Defendants") for possession of heroin with

the inten t to distribute and conspiring to commit that offense.

See 21 U.S.C. §§ 841(a)(1), 846. We reverse and remand to the

district court for proceedings not inconsistent with this opinion.2 BACKGROUND

On April 3, 1994, United States Customs agents arrested Cheryl

Washington at Houston Intercontinental Airport after discovering

that she was carrying approximately five pounds of heroin.

Washington identified Hakeem Lawal as the individual who recruited

her to smuggle the heroin. After agents arrested Lawal on August

10, 1994, he agreed to cooperate with the investigation and

implicated the Defendants in the heroin scheme. He also agreed to

take agents Chuck Mazzilli, Mark Klemm, and Shawn McElroy to the

Defendants' apartment.

Lawal, the agents, and several Houston police officers arrived

at the apartment complex at approximately 11 p.m. Lawal called the

apartment and spoke briefly with Oduntan so that the agents could

ascertain whether anyone was there. The agents and Lawal then

climbed the stairs t o the Defendants' apartment. Agent Klemm

peeked through the edge of the miniblinds, which were down, to

determine whether any of the occupants were armed. He observed

Hassan and Oduntan at the dining room table pouring a white

substance that appeared to be heroin through a strainer. The table

was covered with sheet pans filled with the substance. Agent

Mazzilli then made a similar observation through the miniblinds.

At that point, Klemm yelled to the police officers waiting

downstairs to com e up to the apartment. Mazzilli knocked on the

door; as the Defendants approached it, he yelled, "police." Agent

Klemm then saw the Defendants move back toward the table. Mazzilli

kicked open the door and the agents entered the apartment and1 The Government does not challenge on appeal the district

court's ruling on exigent circumstances.

3 arrested the Defendants. The apartment was not searched until a

warrant was obtained the next day.

The Defendants subseq uently moved to suppress all evidence

seized pursuant to the warrantless entry. The district court

suppressed the evidence after concluding that exigent circumstances

did not exist to justify the agents ' warrantless entry. 1 The

Government filed a motion for reconsideration, arguing for the

first time that the independent source doctrine justified the

admission of the evidence. The district court concluded that the

doctrine was inapplicable and refused the Government's request for

another hearing to develop evidence on independent source. The

Government timely appealed.

DISCUSSION

The Government contends that the district court erred in

concluding that the independent source doctrine was inapplicable to

the instant cause. The Supreme Court has held that where evidence

initially unlawfully seized is subsequently obtained pursuant to a

s earch warrant based on independent information, the independent

source doctrine applies not only to evidence seen for the first

time during the warrant-authorized search, but als o to evidence

seen in plain view at the time of the illegal warrantless search.

See Murray v. United States

, 487 U.S. 533, 541-42, 108 S. Ct. 2529,2 The Court recognized that the rationale for the

independent source doctrine involved a balancing of interests:

[T]he interest of society in deterring unlawf ul police

conduct and the public interest in having juries receive

all probative evidence of a crime are properly balanced

by putting the police in the same, not a worse

, position

that they would have been in if no police error or

misconduct had occurred. . . . When the challenged

evidence has an independent source, exclusion of such

evide nce would put the police in a worse position than

they would have been in absent any error or violation.

Murray

, 487 U.S. at 537, 108 S. Ct. at 2533 (quoting Nix v.

Williams

, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed.2d 377

(1984)).

4 2535-36, 101 L. Ed.2d 472 (1988). 2

The Government thus contends that the fact that the heroin

was observed and smelled during the illegal warrantless entry does

not render it inadmissible if it was also obtained pursuant to an

independently-acquired search warrant. S ee id

., 108 S. Ct. at

2535-36; United States v. Restrepo

, 966 F.2d 964, 969 (5th Cir.

1992), cert. deni ed , 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed.2d

124 (1993) (noting that evidence discovered during a violation of

the Fourth Amendment is admissible if it is also discovered through

an independent source).

The Defendants initially assert that the Government waived its

independent source argument by not raising it in the district court

unt il the motion for reconsideration. S ee Steagald v. United

States

, 451 U .S. 204, 209, 101 S. Ct. 1642, 1646, 68 L. Ed.2d 38

(1981) (concluding that the government may waive error by failing

to raise issues in a timely fashion during litigation); Giordenello

v. United States

, 357 U.S. 4 80, 488, 78 S. Ct. 1245, 1251, 2 L.3 McRae is the only case the Defendants cite involving a

motion to reconsider before the district court. The case, however,

concerned the issue of whether the Government can move to reopen

the suppression ruling during the trial when the district court has

previously ruled against the Government in a pretrial hearing (at

the time, the Government could not seek an interlocutory appeal of

an adverse suppression ruling). M cRae

, 420 F.2d at 1285. Thus,

McRae was in an entirely different procedural posture than the

instant cause in which the Government moved for reconsideration

pretrial. Moreover, we have limited McRae to situations in which

a judge at trial reverses a pretrial suppression ruling entered by

a different judge. See United States v. Scott , 524 F.2d 465, 467

(5th Cir. 1975).

5 Ed.2d 1503 (1958) (holding that the government could not raise new

theory on appeal to Supreme Court becaus e it failed to give the

lower courts an opportunity to rule on the theory); United States

v. Musa , 45 F.3d 922, 925 (5th Cir. 1995) (noting that issues not

raised will not be considered on appeal); McRae v. United States

,

420 F.2d 1283, 1285-89 (D.C. Cir. 1969) (concluding t hat the

government is not entitled to reconsideration by judge during trial

after it has lost on a pretrial suppression motion). 3

We decline to conclude that the Government waived the

independent source argument by not raising it until the motion for

reconsideration. The cases the Defendants rely on involved issues

that were argued for the first t ime on appeal. The Government,

however, presented the independent source issue at a time when the

district court possessed the ability to rule on it. Clearly, the

Government did not waive its argument on appeal by waiting until

the motion for reconsideration to advance it.

The Government's failure to raise the issue during the first

suppression hearing may be considered, however, in determining

whether the district court abused its d iscretion in refusing to6

reopen the hearing to allow the Government to present evidence on

independent source. S ee United States v. Walker

, 772 F.2d 1172,

1177 (5th Cir. 1985); see also United States v. Hobbs

, 31 F.3d 918,

923 (9th Cir. 1994). The district court denied the motion because

"[t]here was ample time to prepare for the previous hearing and the

Court spent considerable time reviewing the facts of this case. No

new information has been presented that would justify oral

argument."

We agree with the Defendants that the district court did not

abuse its discretion in denying the Government's request to present

additional evidence on the independent source doctrine. This

conclusion, however, does not end our inquiry because the district

court did more than simply refuse to reopen the evidence; it

actually rule d on the merits of the Government's argument by

concluding that the independent source doctrine w as inapplicable

because the agents lacked sufficient facts to obtain a warrant in

the absence of the illegal entry.

Because the district court considered and ruled on this issue,

we must review whether it erred in determining the applicability of

the independent source doctrine. As the Third Circuit has

observed:

Generally, the denial of a motion for reconsideration is

reviewed for an abuse of discretion. However, because an

appeal from a denial of a motion to rec onsider

necessarily raises the underlying judgment for review,

the standard of review varies with the nature of the

underlying judgment. Where . . . the underlying judgment

was based in part upon the interpretation and application

of a legal precept, our review is plenary. But to the

extent that the district court's order was based on its

factual conclusions, we review under a "clearly4 We note that the Supreme Court recently granted

certiorari on the related issue of whether appellate courts should

apply a de novo standard of review to the district court's

determination of reasonable suspicion to stop and probable cause to

search in cases involving warrantless searches. S ee United States

v. Ornelas-Ledesma

, 16 F.3d 714, 719 (7th Cir. 1994), cert.

granted

, Ornelas v. United States

, U.S.

, 116 S. Ct. 417, 133 L.

Ed.2d 334 (1995).

7 erroneous" standard.

United States v. Herrold

, 962 F.2d 1131, 1136 (3d Cir.), cert.

denied

, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed.2d 344 (1992)

(citations omitted).

The dis trict court must perform a two-part analysis to

determine whether the independent source doctrine applies: (1)

does the warrant affidavit, when purged of tainted info rmation

gained throug h the initial illegal entry, contain sufficient

remaining facts to consti tute probable cause ("probable cause");

and (2) did the illegal search affect or motivate the officers'

decision to procure the search warrant ("effect of the illegal

entry"). S ee Restrepo

, 966 F.2d at 966. This Court has addressed

the proper standard of review in assessing each prong. The

probable cause prong involves a question of law that we review de

novo

. 4 I d

. at 971; see United States v. Phillips , 727 F.2d 392,

394-95 (5th Cir. 1984) (concluding that a reviewing court may

independently consider the sufficiency of the evidence in examining

the district court's determination of probable cause). In

contrast, the "effect of the ille gal entry" prong involves a

factual determination, Restrepo

, 966 F.2d at 972, that should be

reviewed under the clearly erroneous standard. See United States8

v. Andrews

, 22 F.3d 1328, 1333 (5th Cir.), cert. denied

, U.S.

,

115 S. Ct. 346, 130 L. Ed.2d 302 (1994) (concluding that a district

court's factual findings on a motion to suppress should be reviewed

only for clear error).

In the instant cause, the main dispute between the parties

involves their characterizations of the district court's

determination that "[b]ut for the illegal entry, the officers

probably would not have had sufficient evidence to o btain the

warrant." The Government asserts that this finding concerns the

probable cause prong, while the Defendants argue that it pertains

to the factual issue of the effect of the illegal entry.

Although the language i s somewhat ambiguous, the district

court's order appears to involve a "probable cause" determination

rather than an "effect of the illegal entry" analysis. The

district court focuses on t he fact that sufficient evidence

"probably" would not have existed to allow the officers to obtain

a search warr ant if the illegal entry had not occurred. The

order's languag e does not concern "whether information gained

t hrough the illegal search influenced or motivated the officers'

decision to procure a warrant." R estrepo

, 966 F.2d at 971.

Nothing i n the district court's brief analysis indicates that it

ever considered whether the Customs agents were motivated to seek

the warrant by the sights and smells they observed upon entering

the Defendants' apartment. We conclude that the district court's

ruling involved the probable cause prong of the independent source

doctrine. See id

.5 Relying on the "plain view" rule, the district court

concluded that the officers had a legal right to look through the

edge of the closed miniblinds into the Defendants' apartment. S ee

United States v. Jackson

, 588 F.2d 1046, 1052-53 (5th Cir.), cert.

denied

, 442 U.S. 941, 9 9 S. Ct. 2882, 61 L. Ed.2d 310 (1979)

(holding that officers did not violate the Fourth Amendment by

listening to the accused's conversation through a motel wall); Gil

v. Beto

, 440 F.2d 666, 667 (5th Cir. 1971) (concluding that

officers did not violate Fourth Amendment by looking through motel

room window because the "officers [were] lawfully on the premises

and merely observe[d] what was in plain view"). Because this is

the Governmen t's interlocutory appeal, the Defendants do not

complain of the district court's finding. We assume for purposes

9 Under the probable cause prong, this Co urt reviews the

district court's ruling by excising from the warran t affidavit

those facts that were gleaned from the illegal search and then

examining whether the affidavit's remaining information is

sufficient to constitute probable cause. See id . at 966. If the

warrant affidavit, expunged of the tainted information, still

contains sufficient evidence, then the probable cause p rong is

satisfied. Id . at 971.

When those facts and conclusions that would not have been

available but for the illegal entry into the Defendants' apartment

are exclu ded, the affidavit still contains the following

information: Cheryl Washington's arrest and her identification of

Lawal as the individual who recru ited her to smuggle heroin;

incriminating phone conversations between Lawal and Washington;

Lawal's arrest and offer to cooperate with Customs agents; Lawal's

admission that he rec ruited Washington to smuggle heroin for the

Defendants; Lawal's identification of the Defendants' apartment;

the agents' observation throu gh the miniblinds of the Defendants

cutting heroin at the dining room table; 5 and after on e agentof this opinion that the district c ourt correctly concluded that

the agents had a legal right to look through the Defendants'

miniblinds and that the heroin was in plain view.

6 The Defendants rely on United States v. Dawkins

, 17 F.3d

399 (D.C. Cir. 1994), in arguing that for this second prong, "what

counts is whether the actual illegal entry had any effect in

producing the warrant." Id

. at 408 (quoting Murray

, 487 U.S. at 542

n.3, 108 S. Ct. at 2536 n.3). They assert that the Court in

Dawkins rejected the independent source doctrine because it was not

convinced that the illegal entry did not affect the production of

the warra nt, and that we should likewise reject the Government's

argument on this issue.

Despite the factual similarity between the two cases, the

Defendants' reliance on Dawkins is misplaced. Citing language in

Murray that the i ndependent source doctrine is not applicable if

information obtained during the entry was presented to the

Magistrate and affected his decision to issue the warrant, the

Dawkins Court concluded that evidence obtained during a later

search pursu ant to a warrant had to be suppressed because

"information derived from the illegal search played a large role in

the magistrate's decision." Id

. We have rejected previously, however, the contention that

10 yelled, "police," the Defendants turned back towards the table in

panic.

This in dependently-acquired information provided sufficient

evidence to establish probable cause for the issuance of a search

warrant. S ee id

. at 971. In addition to tips from informants, the

Customs agents actually observed the Defendants cutting and sifting

a large amount of heroin. We conclude as a matter of law that the

expurgated affidavit sufficiently established probable cause.

Therefo re, the district court erred in finding the independent

source doctrine inapplicable based on a lack of probable cause.

The determination of probable cause, however, does not end the

analysis. The district court must also examine whether

"information gained through the i llegal search influenced or

motivated the officers' decision to procure a warrant." Id

. 6Murray requires the reviewing court "to consider the actual effect

of the illegally-acquired information in [the] warrant affidavit on

the decision of this particular magistrate judge to issue the

warrant." Restrepo , 966 F.2d at 969. In concluding that the

effect on "the [magis trate's] decision to issue the warrant" was

encompassed within the probable cause prong, we reaffirmed our preMurray holdings that "inclusion of illegally-acquired information

on a warrant affidavit does not invalidate the warrant if the

affidavit's other averments set forth probable cause." I d

. at 970.

Citing Herrold

, a Third Circuit decision reversing a district

court's ruling that the inclusion of illegally obtained evidence in

the a ffidavit affected the magistrate's decision to issue a

warrant, we determined that an individualized inquiry of the effect

on the magistrate is not required. Id . (citing Herrold , 962 F.2d

at 1141-42, for the proposition that "the fact that an application

for a warrant contains information ob tained through an unlawful

entry does not per force indicate that the improper information

"affected" the justice's decision to issue the warrant and thereby

vitiate the applicability of the independent source doctrine").

Ins tead, we examine whether the tainted information affected the

magistrate's decision by assessing whether the affidavit, purged of

all tainted information, still co ntains sufficient facts to

establish probable cause. I d

. We do not perform a separate

inquiry of the effect on the magistrate, as the D.C. Circuit did in

its analysis. D awkins

, 17 F.3d at 408. Thus, D awkins is

inapposite to the instant cause under the law of this circuit.

11 Although both parties argue that we should decide the issue of

the "effect of the illegal entry," we believe that a remand of this

factual prong to the district court is appropriate. S ee id

. at 972

(remanding on the effect of the illegal entry issue because

motivation involves a question of fact). The district court may

wish to consider such factors as the precise nature of the

information acquired after the illeg al entry, the importance of

this information compared to all the information kno wn to the

agents, and the time at which the officers first evinced an intent

to seek a warrant. S ee id .; United States v. Register

, 931 F .2d

308, 311 (5th Cir. 1991) (noting that the officer began preparing

warrant affidavit before illegal entry occurred). In determining7 It is within the dist rict court's discretion to decide

whether it wishes to reopen the hearing on this issue or to simply

examine the record from the first suppression hearing for evidence

of the ag ents' motivation; except, the district court shall not

grant relief on the Government's motion for reconsideration without

affording the Defendants an opportunity to present evidence on the

second prong as stated in Restrepo

.

12 motivation, the district court may also examine the reasons why the

officers decided to include the illegally-obtained information in

the affidavit.

CONCLUSION

We reverse the district court's conclusion that the

independent source doctrine is inapplicable and remand the case to

the district court for a determination of whether the agents were

influenced or motivated t o procure a warrant by information they

obtained through the illegal entry. 7

REVERSED AND REMANDED.