Can a search warrant be used to establish probable cause for a subsequent search?

MultiRegion, United States of America

The following excerpt is from U.S. v. Davenport, 127 F.3d 1107 (9th Cir. 1997):

The appellants also argue that without the "fruits" of the illegal entries on August 31 and the morning of September 1, there was no probable cause for the search warrant. "It is now fundamental that evidence which is obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a subsequent search." United States v. Wanless, 882 F.2d 1459, 1465 (9th Cir.1989). However,

[t]he mere inclusion of tainted evidence in an affidavit does not, by itself, taint the warrant or the evidence seized pursuant to the warrant. United States v. Driver, 776 F.2d 807 (9th Cir.1985). A reviewing court should excise the tainted evidence and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue a warrant. Id.

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