Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

A. Assuming arguendo that the initial entry was illegal, the fruits of the initial search cannot provide a basis for the subsequent search warrant. The validity of the warrant depends upon whether the supporting affidavit contains sufficient independently obtained information to establish probable cause. United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986). The affidavit states that there was a heavy smell of ether--a chemical known to be used in methamphetamine manufacture--emanating from the house and that Linder, a known methamphetamine manufacturer, was seized shortly after leaving the house. Linder, too, reeked of ether. ER 29. This evidence, untainted by the prior entry, establishes probable cause to believe that a methamphetamine plant was operating on the premises. This provides a sufficient basis for the search warrant.

B. Nor was Oberholtzer's confession tainted. We determine whether a confession is unconstitutionally tainted by considering (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest to the confession; (3) the presence of intervening circumstances; and particularly (4) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Oberholtzer had been given a Miranda warning. The official misconduct here, if any, was neither purposeful nor flagrant. Two and one half hours passed between Oberholtzer's arrest and his confession, and Oberholtzer does not allege that the police were in any way coercive or abusive. See Rawlings v. Kentucky, 448 U.S. 98, 108 (1980) (holding shortness of 45-minute interval between arrest and confession outweighed by congenial atmosphere maintained by police and suspects). Furthermore, the spontaneous nature of the confession indicates that Oberholtzer acted "of free will unaffected by the initial illegality." See Brown, 422 U.S. at 603.

AFFIRMED.