them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. * * *'
The government argues that this is the case here and therefore no announcement was required. There are several rather obvious flaws in the government's position.
In the first place, there is no showing of any facts known to the officers that would justify them in being virtually certain that those inside the room even knew of their presence for the agents addressed a closed solid door. It seems almost unnecessary to spell out the sequential corollary: if the agents had nothing that would justify a virtual certainty of knowledge of their presence (and so, of their identity), it is logically impossible for such a certainty of knowledge of purpose to exist.
Secondly, even if we assume that those inside knew of the presence of the F.B.I. this knowledge of identity does not carry with it knowledge of purpose. They may have been there for a variety of reasons and it is the design of the rule that the officers indicate for which one of many possible reasons they demand admittance. Again, in Miller the defendant looked out, saw and actually knew the officers involved but the statement of purpose was not excused. Were the rule otherwise the requirement of announcement of purpose would be a complete superfluity, for it would follow that whenever a law officer knocked and identified himself that very identification would demonstrate within itself the reason for his presence. This is neither the fact nor the law.
Finally, the only justification for breaking doors is the refusal of the occupant to open on demand. In 1 Hale, Pleas of the Crown, 583 (1736), it is said:
'A man, that arrests upon suspicion of felony, may break open doors, if the party refuse upon demand to open them . . .'
Thus, underlying the asserted relief from the necessity of announcing purpose is the assumption that there has been an announcement of identity together with virtual certainty of knowledge by the defendants of the officers' purpose and that thereafter admittance is refused. Unfortunately for the government's case, even if we assume a knowledge of purpose there was not even an opportunity for much less actual refusal of admittance. The F.B.I.'s breaking open the door immediately after the announcement of identity effectively precluded either. We need not determine the precise interval that must elapse between announcement and breaking which would justify the conclusion that opportunity had been offered and rejected, for this varies with the circumstances: United States v. Gorman, 208 F.Supp. 747, (E.D.Mich., S.D.1962). Suffice it to say that where, as here, there was no opportunity, it cannot be said that admittance was refused.
The government's final excuse for the failure of the agents to announce purpose is that the officers in good faith believed that they would be placed in peril were the announcement made. We may consider this argument from two standpoints: (1) the evidence on which the asserted belief was based; and (2) the evidence of the agents' own action.
As to the former, the evidence was totally unconvincing. The agents had information, never confirmed, that there might be a single armed guard in the premises as against at least 50 F.B.I. agents, all armed, some with shotguns. There was also offered vague generalities about the criminal records of some of the persons on the premises. Only two of these were identified. One of them, not a defendant, had been convicted of crap-shooting. The F.B.I. agent conceded this was not a crime of violence. The other was defendant Barrow, who, in 1933, had been held in $ 1500 bail on 'suspicion of murder', disposition unknown. This evidence is not calculated to raise a reasonable belief of peril.
Secondly, there was in fact an announcement of identity. Obviously, if the agents had a bona fide belief that announcement would result in peril, that peril would come from the fact and not the nature of an announcement. The fact that some announcement was made dispels any doubt that the agents had no bona fide apprehension of peril if an announcement were made.
From what we have said, it follows that the entry to execute the arrest warrants was illegal. The property, therefore, cannot be said to have been seized lawfully in connection with a lawful arrest.
Following the entry Agent Westphal entered the premises, looked around the room and into a small backroom and then returned to a car outside where the United States Commissioner was waiting with a previously prepared search warrant and affidavit. Westphal signed and executed the affidavit which was based on his personal observations and the search warrant was issued. Westphal then returned to the premises, the word was passed among the agents that there was a warrant outstanding and they proceeded to make a thorough search of the property. In the meantime, the agents had the property and all the some one hundred occupants under control.
The illegality of a seizure is not cured by the subsequent issuance of a search warrant supported by an affidavit based upon information obtained through an original illegal entry.
'* * * A federal agent cannot participate in an unlawful search, and then on the basis of what he observed in the course of that search, and on that basis alone, go to a United States Commissioner and swear out a search warrant. Such a search warrant, and the evidence procured in the course of a search thereunder, would be merely the illegal product of a previous unlawful search by the federal authorities. * * *' McGinnis v. United States, 227 F.2d 598, 603 (C.A.1, 1955).
The original entry here was illegal. The information acquired through that entry was illegally acquired. The search warrant, therefore, adds nothing of legality to the original illegal seizure. The motion to suppress will be granted.