HIS RESIDENCE TO ARREST HIM HAD NO APPARENT REASON TO BELIEVE THAT HE WAS ENGAGED IN ANY NARCOTICS VIOLATION. `THE INDICTMENT UPON WHICH THE WARRANT FOR HIS ARREST WAS BASED CONCERNED AN ALLEGED CONSPIRACY THAT OCCURRED MORE THAN A YEAR PREVIOUS. IN VIEW OF THIS A SEARCH OF VANELLA'S ENTIRE RESIDENCE HAD NO APPARENT RATIONAL CONNECTION TO THE ALLEGED CONSPIRACY FOR WHICH VANELLA WAS INDICTED AND ARRESTED (FOOTNOTE: SEE TRUPIANO VERSUS UNITED STATES, 334 U.S. 699 [92 L.Ed. 1663, 68 S.Ct. 1229] (1948); UNITED STATES VERSUS LEFKOWITZ, 285 U.S. 452 [76 L.Ed. 877, 52 S.Ct. 420, 82 A.L.R. 775] (1932) GO-BART IMPORTING COMPANY VERSUS UNITED STATES, 282 U.S. 344 [75 L.Ed. 374, 51 S.Ct. 153] (1931).) SUCH A SEARCH THEREFORE CANNOT BE JUSTIFIED AS A SEARCH INCIDENT TO AN ARREST ON THE CHARGE IN THE INDICTMENT. FURTHERMORE, THE DISCOVERY OF MARIJUANA ON THE PERSON OF SULLIVAN CANNOT BE RELIED ON TO JUSTIFY A SEARCH OF THE ENTIRE PREMISES FOR FURTHER EVIDENCE OF A CURRENT VIOLATION OF FEDERAL LAWS RELATING TO MARIJUANA. IN LIGHT OF OUR DETERMINATION THAT THE SEIZURE OF THE EVIDENCE FROM THE PERSON OF SULLIVAN WAS ILLEGAL AND THE EVIDENCE INADMISSIBLE, THE PRODUCT OF ANY FURTHER SEARCH, NECESSARILY BASED UPON THIS EVIDENCE, IS LIKEWISE INADMISSIBLE. THIS INVOLVES NO MORE THAN A FAIR APPLICATION OF THE "FRUIT OF THE POISONOUS TREE" CONCEPT DISCUSSED IN WONG SUN VERSUS UNITED STATES, 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407] (1963).
"`FAILURE TO GRANT THE MOTION TO SUPPRESS AND THE ALLOWANCE OF THE MARIJUANA INTO EVIDENCE CONSTITUTED REVERSIBLE ERROR....
"`JUDGMENT REVERSED.'
"CIRCUIT JUDGE CHAMBERS, DISSENTING, BELIEVED THAT THE COURT WOULD BE JUSTIFIED IN UPHOLDING THE SEARCHES UNDER HARRIS VERSUS UNITED STATES, 331 U.S. 145 [91 L.Ed. 1399, 67 S.Ct. 1098], AND UNITED STATES VERSUS RABINOWITZ, 339 U.S. 56 [94 L.Ed. 653, 70 S.Ct. 430]. HE DID NOT BELIEVE THAT TRUPIANO VERSUS UNITED STATES COMPELLED THE RESULT WHICH THE MAJORITY REACHED. IT WAS HIS BELIEF THAT THE SEARCHES WERE REASONABLE.
".... .... .... .
"THAT THAT CONVICTION WAS FINALLY REVERSED ON THE GROUNDS OF ILLEGAL SEARCH AND SEIZURE DOES NOT, IN THE OPINION OF THE PROBATION OFFICER, MITIGATE THE CIRCUMSTANCES. EXACTLY AS IN THE PRESENT CASE, THE DEFENDANT WAS FOUND IN POSSESSION OF A LARGE QUANTITY OF MARIJUANA. *469 AND THIS OCCURRED ONLY FIVE MONTHS AFTER HIS RELEASE FROM JAIL IN THE PRESENT CASE. IT WAS A FLAGRANT VIOLATION OF THE MOST IMPORTANT CONDITION OF PROBATION, `NOT USE OR POSSESS ANY NARCOTICS'.
"IN THESE CIRCUMSTANCES, IT WOULD NOT BE APPROPRIATE TO RESTORE THE DEFENDANT TO PROBATION."
When questioned about the marijuana found in his house on which the federal case was based, defendant's only statement was that there were other people in the house at the time of his arrest.
The case of Vanella in the federal court ran an unusual course. A panel of the court on April 20, 1965, reversed the judgment upon a search and seizure question as heretofore indicated in the probation officer's report of November 1965. In