Appellant Marchand has filed a petition for rehearing, accompanied by a suggestion for rehearing en banc. This is limited to the portion of this court's opinion (Part IV, p. 991) affirming the district court's refusal to suppress the note seized on Marchand's arrest in Florida. We deny the petition.
The basis for our upholding the denial of the suppression motion was that the officers in Florida had probable cause to arrest Marchand which derived from a clearly untainted source, primarily the photograph of Marchand previously sent them from Vermont, quite apart from the additional cause furnished by the unlawful extraction of a driver's license from Marchand's wallet.*fn1 Not seriously disputing that untainted probable cause existed, Marchand argues that the Government had the burden of showing that the arrest would have been made if the illegally obtained evidence had not existed and that it did not meet this.
The argument would transpose to the situation here presented a principle with respect to burden of proof laid down in the usual "fruit of the poisonous tree" case, e.g., Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); United States v. Cole, 463 F.2d 163, 171-74 (2 Cir.), cert. denied, 409 U.S. 942, 34 L. Ed. 2d 193, 93 S. Ct. 238 (1972); United States v. Falley, 489 F.2d 33, 40-41 (2 Cir. 1973), and United States v. Ceccolini, 542 F.2d 136, 140-41 (2 Cir. 1976), cert. granted, 431 U.S. 903, 97 S. Ct. 1693, 52 L. Ed. 2d 386, 45 U.S.L.W. 3715, (1977), where the prosecution, having first obtained tainted evidence, must demonstrate that evidence thereafter developed did not stem from the evidence illegally obtained. Here the sequence was the opposite. When lawfully obtained evidence is sufficient to justify an arrest and an incidental seizure, a defendant suffers no violation of constitutional rights merely because an officer might not have made the arrest but for the additional proof furnished by evidence which he later obtained illegally. The Fourth Amendment protects against an arrest without probable cause derived from evidence legally obtained; it does not confer a further protection against the possibility that a particular officer might not have done what he lawfully could. Cf. United States v. Capra, 501 F.2d 267, 280 n.12 (2 Cir. 1974), cert. denied, 420 U.S. 990, 43 L. Ed. 2d 670, 95 S. Ct. 1424 (1975). The Government thus had no such burden as defendant would place upon it. In the search warrant cases cited in our opinion, the courts did not require the Government to show that the warrant would in fact have issued, or even would have been sought, on the basis of the legally obtained evidence alone; it was enough, in Judge Leventhal's words, "if the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information . . .," James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1152 (1969) (emphasis supplied). See also United States v. Koonce, 485 F.2d 374, 379 (8 Cir. 1973) (if the affidavit of one officer, by itself, " would be enough to support a magistrate's finding of probable cause," the illegal search by another officer need not be considered (emphasis supplied)). We see no basis for the challenge by appellant's counsel to the analogy of these cases. The flaw is rather in invoking as an analogy cases where, but for the illegality, the untainted evidence justifying an arrest might not have been obtained at all.*fn2