c29:Nos. 71-1155, 71-1156

MILLER, Circuit Judge
(concurring).
Our panel is in unanimous agreement that the warrantless searches made by the police lieutenant were illegal and that information obtained as a result may not be relied upon to support a finding of probable cause. Nevertheless, Judge McCree concludes that the evidence obtained after the issuance of the search warrant was validly admitted into evidence by applying the rule stated in a number of cases that when the affidavit in support of a search warrant contains information which in part is unlawfully obtained, the validity of the warrant and search depends upon whether the untainted information, considered by itself, establishes probable cause for the issuance of the warrant. In support of this principle he cites Howell v. Cupp, 427 F.2d 36 (9th Cir. 1970); James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150 (1969); United States v. Sterling, 369 F.2d 799, 802 (3rd Cir. 1966); and Clay v. United States, 246 F.2d 298, 304 (5th Cir.), cert. denied 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed. 2d 69 (1957). To this list may be added Chin Kay v. United States, 311 F.2d 317, 321 (9th Cir. 1962). In order to apply the principle stated in these cases it is necessary to find here that the information supplied by the motel employee Par-ham would be sufficient to justify a magistrate in issuing a search warrant on the basis of that information alone apart from the additional information obtained by the officer as a result of his two illegal searches of the motel room. In this connection Judge McCree cites Tenn. Code Ann. Sec. 39-908 which is reproduced below.
While this statute as construed in Shafer v. State, 214 Tenn. 416, 381 S.W. 2d 254 (1964), may possibly support the conclusion that the Parham information constituted probable cause that Tennessee law was being violated, the conclusion is not free from doubt. I cannot find with any degree of confidence or certainty that a magistrate applying Tennessee law would have authorized the issuance of a search warrant based alone upon the information supplied by Parham. Par-ham’s memorandum mentioned four bags, three containing bags (supposedly containers) of whiskey, a sack of money, tools and guns, and a large suitcase with a cutting torch inside. The tools were not referred to as “burglarious” tools, nor were they otherwise described by Parham. No information was given about a burglary having occurred in the vicinity or elsewhere. Although one would have to admit that the information was sufficient to arouse the officer’s suspicion, to me it would be sheer speculation to say that a Tennessee magistrate would have acted upon that information alone to issue a warrant.
This being true, I would apply the principle enunciated by the United States District Court for the Southern District of New York in United States v. Epstein, 240 F.Supp. 80 (D.C.S.D.N.Y. 1965), quoted with approval by the Third Circuit in its opinion in United States v. Sterling, supra. “This is not to say that law enforcement officials may with impunity include impermissible matter in applications for search warrants in the hope that a Commissioner might thereby be persuaded to find probable cause where otherwise none exists or the issue is in doubt; in such a case inclusion of illegally obtained information would require quashal of the warrant.”
As I assess the facts in the present case, that is exactly what happened. The information legally obtained by Parham in his search of the motel room and furnished to the officer was sketchy and incomplete although suggestive of the possibility of criminal activity. The officer to whom the information was given was not sufficiently satisfied with it to apply to a magistrate for a warrant. Instead he almost immediately conducted two illegal searches as a result of which he not only confirmed the information which had been given to him by Parham but in addition obtained information with respect to the postal money orders and the identification card which enabled him to ascertain with certainty that a crime or crimes had been committed. The identification card furnished the lead from which the officers were able to discover that a post office burglary had been committed in Leland, Mississippi, in which a number of postal money orders had been taken. All of the facts and information obtained both as a result of the legal and illegal entrances and searches were comingled and set forth in the affidavit presented to the magistrate with no indication being given as to how the separate items of information had been obtained. Indeed, a person reading the warrant would assume that all of the facts were supplied by an informant deemed by the officers to be reliable. There was certainly no way that the magistrate could have known that the principal facts stated in the warrant (facts indisputably evidencing criminal activity) were illegally obtained. This is not a case where the tainted information which is included in an affidavit along with untainted information is trivial or insignificant or merely cumulative. It is a case where the tainted information is of such major importance that its absence creates grave doubt that the warrant would have issued without it. If we are to uphold the fundamental purposes of the Fourth Amendment and the exclusionary rule by which it is implemented, it is my belief that the practice indulged in by the officers in this case must be condemned and the tainted evidence upon which appellants were convicted suppressed.
I am in full agreement with Judge Edwards’ concern, as reflected by his opinion, that the integrity of the Fourth Amendment be preserved against corrosion. Also, I must agree with him that it is unfortunate that the illegal police intrusions in this case must result in the setting aside of judgments of conviction of persons who were doubtless guilty of the serious offense with which they were charged. However, as the courts have many times reiterated, the exclusionary device is the only means by which the Fourth Amendment’s guarantee of personal freedom may be effectively enforced. That this many times results in the guilty going free is not considered too high a price to pay.
. Carrying burglarious instruments — Penalty. — Any person who carries concealed about the person any false or skeleton keys, jimmies, or any article of the kind intended for effecting secret entrance into houses, for the purpose of committing theft, or other violations of the law, is guilty of a felony, and, upon conviction, shall be sentenced to confinement in the penitentiary for a period of not less than one (1) year nor more than ten (10) years.
. It is noteworthy that in James v. United States, supra, a case more factually similar to the present case than the others cited by Judge McCree, the lawful information which was upheld on the “plain view doctrine” was clearly sufficient in anti of itself to support the issuance of the warrant. The holding in James may be explained on the basis that the additional information obtained as a result of an illegal entrance into the garage was merely “cumulative.” Moreover, it is noteworthy that the district court sustained the pretrial motion to suppress with respect to the information obtained as a result of the officer’s subsequent illegal entry. In consequence, in that caso the appellant’s conviction for grand larceny and the unauthorized use of a motor vehicle was based upon the valid information obtained by the officer from his observations outside the garage.

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