The opinion
JOHN B. Robbins, Judge, concurring in part, dissenting in part. I concur that this case should be reversed and remanded. However, I would reverse and remand to allow the trial court to make findings of fact in regard to the second step under Murray v. United States, 487 U.S. 533 (1988).
I agree with the majority’s rationale concerning the first step of the Murray analysis. The officers had sufficient independent information from other sources, i.e., sources other than the illegally obtained information, that established probable cause for the issuance of the warrant. Those facts are accurately reflected in the majority opinion. However, I believe that based upon the persuasive authority of United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cited in the majority opinion, we should reverse and remand.
The second part of the Murray analysis is whether or not the illegal entry, and any evidence or information obtained as a result of the illegal entry, affected the officers’ decision to seek the warrant. As noted by the majority, the officers did not get a search warrant prior to their first entry into the appellants’ home. Although the officers sought assistance from the Washington County prosecutor in obtaining a warrant, he told them that, in his opinion, they did not have enough information to establish probable cause for one. The officers presented the prosecutor with the same information that the majority opinion states was sufficient to establish probable cause.
I believe that the majority opinion goes too far in applying the second part of the Murray analysis by effectively making our appellate court a fact-finding court. The majority opinion states that “we find that [the officer’s] decision to seek the warrant was prompted by what he saw during his initial, unlawful search.” In both Murray and Restrepo the cases were remanded for the trial courts to consider whether or not the results of the illegal searches prompted or motivated the officers’ decision to seek the warrant. In Restrepo the court stated that the officers’ motivation is a question of fact for the trial court to decide.
In the present case the trial court did not consider whether the results of the illegal first search of appellants’ home prompted or motivated the officers’ decision to seek the warrant. Such a determination is subjective and must be based on factual matters including statements of the officers or other evidence directly probative of motivation. I believe that the majority has done exactly what the Restrepo court warned against by scrutinizing the record for evidence concerning motivation. This is a finding of fact that was not made by the trial court and it is not within our province to make such findings. As noted above, it is clear that the officers were motivated to obtain a warrant prior to the illegal search and only failed to pursue issuance of a warrant because of a prosecutor’s opinion, which in hindsight was incorrect. Consequently, some motivation to obtain a warrant existed both before and after the illegal search.
I would reverse and remand for the trial court to resolve this issue by making such findings of fact as are necessary to determine the officers’ primary motivation for seeking the warrant in question.