¶1concurring:
¶2Judge Gilbert and I subscribe fully to the opinion written for the unanimous panel by Judge Melvin, as well as in the result. 1 wish, however, to comment further upon the effect of the illegal 2:35 A. M. search upon appellant’s constitutional rights. Judge Gilbert joins me in this comment.
¶3It should be clear that we are not holding that the appellant had Fourth Amendment standing to object to the second entry and ultimate seizure at 8:30 A.M. as such. He clearly did not. His standing rather was to object to the indirect use as well as the direct use of information gathered during the earlier 2:35 A.M. intrusion, as to which he did most definitely have Fourth Amendment standing. That earlier unconstitutional intrusion was the poisonous tree — primary illegality. I wish to emphasize precisely which of several parallel but functionally distinct uses of the information unconstitutionally obtained at 2:35 A.M. — precisely which exploitation of that primary illegality — is the one that counts in this case. Poisonous trees may bear *278immaterial fruits as well as material ones and may bear both simultaneously.
¶4It was not the use of the unconstitutionally obtained evidence to spell out probable cause for the search warrant that matters here. Since the appellant has no Fourth Amendment protection in the inner room searched at 8:30 A.M., no search warrant, as far as his rights were concerned, was necessary. The very existence of a warrant being immaterial, the constitutional validity of its probable cause is thereby equally immaterial. It simply does not matter whether probable cause is tainted or untainted for a warrant which is itself redundant.
¶5The exploitation of the primary illegality that does matter was the use of the unconstitutionally obtained information to know when and where to go and where to look at 8:30 A.M., irrespective of any Fourth Amendment consideration at that later time. On the record before us, but for the use of the illegally obtained knowledge, the contraband would never have been found. There was no arguable attenuation of the taint. The precise use of a poisoned fruit which cannot be permitted, therefore, was not the obtaining of an unneeded warrant, an immaterial exploitation at most, but the very act of going to an unforseeable hiding place in the sure knowledge that contraband would there be found, a most material and directly incriminating exploitation. It was not the ostensible justification for the going to the landlord’s basement room but the very act of going to that room that mattered.