State v. Montigue ( 1980 )

LENT, J.,

concurring in part; dissenting in part.

I concur in the majority’s holding that the mere naming of an informant does not suffice to furnish a basis for the magistrate to conclude that the informant is veracious. I concur, also, in the reasoning for that conclusion found in the separate, concurring opinion of Linde, J. I dissent, however, from the holdings of those opinions that the affidavit in this case affords enough additional information for the magistrate to infer the informant is truthful.¹ Moreover, I believe something more should be said as to the basic approach in analyzing the sufficiency of an affidavit to establish probable cause.

The General Proposition That Mere Naming Is Insufficient.

It is conceded that there is no statute which is dispositive of the matter now before us and that we must turn to Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution to resolve the issues before us. We should be mindful of certain considerations with respect to those constitutional provisions. Over half a century ago this court expressed a basic principle to be kept in mind insofar as Article I, section 9, of the Oregon Constitution is concerned. In State v. McDaniel, 115 Or 187, 194, 231 Pac 965, 237 Pac 373 (1925) we said that this constitutional provision is to be strictly construed in favor of the individual who invokes its protection. The Supreme Court of the United States similarly views the function of the Fourth Amendment. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388, 392, 91 S Ct 1999, 29 L Ed2d 619 (1971) that court noted that the Fourth Amendment "guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures * * * ” (emphasis added).

The reason for enforcement of each of the relevant constitutional provisions is to protect citizens, the law abiding as well as the criminal, against unreasonable searches and seizures, and absent uncompromising examination of the reliability of alleged informants by both magistrates and reviewing courts protection for all persons against unreasonable searches will simply disappear.

Both the state and federal constitutions require probable cause to be shown for the issuance of a warrant. When the information presented by affidavit to the magistrate to establish probable cause is that of the affiant himself the oath of the affiant is considered prima facie sufficient for the magistrate to accept the veracity of the supplier of the information. On the other hand where the information is not presented upon the personal knowledge of the affiant but rather upon the unsworn statement of another (the informant) to the affiant, the constitutions require that the affidavit must contain sufficient data from which the magistrate will be independently convinced of the trustworthiness of the information given by the informant.

From Aguilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed2d 723 (1964) and Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed2d 637 (1969) Judge Moylan has developed an outline oft cited and utilized in determining whether an affidavit of this kind is sufficient to meet the constitutional tests of a showing of probable cause. See, Moylan, "Hearsay and Probable Cause: An Aguilar and Spinelli Primer,” 25 Mercer Law Review 741, 755:

"The Trustworthiness of Hearsay

"I. The Basis of Knowledge Prong

"II. The Veracity Prong

"A. The Credibility Spur

"B. The Reliability Spur” (original italics)

Judge Moylan’s outline may be a valuable tool and serve well as a point of departure for analysis in a given case, but it contains a trap in its very configuration because it leads us to focus first upon the knowledge prong and then upon the veracity prong. I believe that an affidavit of the kind here involved is properly tested by turning first to whether there is sufficient data sworn to by the affiant to afford the magistrate a basis for concluding that the informant is veracious.

The Court of Appeals asserted in this case (38 Or App at 365) that "an informant’s reliability² is sufficiently established where, as here, he is named and his information comes from personal observation.” The proposition will not stand because it assumes as true something which is not necessarily true. It assumes that the informant is an eyewitness. Whence the data that the informant was an eyewitness? Why, from the information which the informant gave to the affiant. The assumption is totally unwarranted unless the magistrate has some data from the affiant to afford a reasonable basis for the magistrate to conclude the informant is veracious. Only then can the magistrate reasonably infer that the informant’s claim of being an eyewitness is true. In other words, how can the magistrate start by assuming the claim of being an eyewitness is true and from that assumption conclude that the information is trustworthy? He can’t, of course, unless the affidavit affords data to show the magistrate that the informant is a "truth speaker” (Judge Moylan’s apt term) and, therefore, that the magistrate should believe the informant’s most fundamental assertion, i.e., that he is an eyewitness.

It is urged upon us that naming the informant is sufficient to establish a basis for the magistrate to conclude that the informant is probably to be believed in what he has asserted to the affiant. Some of the cases cited to us as standing for such a rule seem to proceed upon a line of reasoning that Aguilar and Spinelli, supra, dealt with unnamed informants and that the language of those cases was addressed to the particular problems associated with professional informers or stool pigeons, most likely themselves to be members of the criminal milieu. If the informant is not of that class and merely an eyewitness, therefore, say those courts, there is no basis for furnishing a "track record” of the informant, and it need not be done. I agree that furnishing a "track record” for the once-in-a-lifetime witness to crime who reports his observations to a police officer affiant is impossible. I do not agree that the affidavit provides probable cause simply because the informant is named therein and asserts that he is an eyewitness to certain events which describe the commission of a crime.

Probably the case which has gone furthest in requiring no more than name and claim of being an eyewitness is United States v. Burke, 517 F2d 377 (2d Cir 1975). There the sworn statements of police officers were that an informant identified by name and address had informed the affiants that the informant had seen the defendant in possession of a sawed-off shotgun at a certain time at certain premises. Upon noting that this was not an unnnamed informant case, the court summarily concluded that the rules of Aguilar and Spinelli were inapplicable because they could not be applied to the hearsay statements of eyewitnesses (including victims) theretofore unknown to the police. The court expressed concern over the paucity of data concerning the informant and suggested other data which could have been easily furnished.³ Nevertheless the court seemingly required nothing more than the bare identification of the informant and his unsworn assertion that he was an eyewitness.

In Burke the court primarily relied upon United States v. Bell, 457 F2d 1231 (5th Cir 1972); McCreary v. Sigler, 406 F2d 1264 (8th Cir 1969); United States v. Unger, 469 F2d 1283 (7th Cir 1973); and United States v. McCoy, 478 F2d 176 (10th Cir 1973). A brief review of those cases would indicate that they are not all helpful to the Burke court position.

In United States v. Bell, supra, the crime was bank robbery. The affiant identified by name and address or bank occupation informants who, respectively, saw one or more defendants in the bank during the commission of the robbery, standing by a getaway car, running from the bank to a getaway car and proceeding away from the scene in a getaway car. The court said (457 F2d at 1238):

"* * * n is now a Well settled and familiar concept, as enunciated by Aguilar and Spinelli, that supporting affidavits in an application for a search warrant must attest to the credibility of an informant and the reliability of his information. See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075,29 L.Ed.2d 723 (1971). We have discovered no case that extends this requirement to the identified bystander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unknown informant’s tip that may not reflect anything more than idle rumor or irresponsible conjecture. Thus, without the establishment of the probability of reliability, a 'neutral and detached magistrate’ could not adequately assess the probative value of the tip in exercising his judgment as to the existence of probable cause. Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance could also affect their credibility. None of these considerations is present in the eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition [emphasis here added] are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A 'neutral and detached magistrate’ could adequately assess the probative value of an eyewitness’s information because, if it is reasonable and accepted as true, [emphasis here added] the magistrate must believe that it is based upon first hand knowledge. Thus we conclude that Aguilar and Spinelli requirements are limited to the informant situation only.”

It is clear from the emphasized matter that the court had assumed the truth of the claim by these informants that they were eyewitnesses. From that point the court departs to the next point on the circle, i.e., that the magistrate can adequately assess the eyewitness’s information and, if he believes it, he must then (returning to initial point on the circle) believe that it was based upon first hand knowledge, in other words, that the informants were eyewitnesses. I submit that this circuity of reasoning simply says that if one, not under oath, claims to be an eyewitness and his story is reasonable and accepted by the magistrate, the magistrate is entitled to treat his information as eyewitness information. Laying Aguilar and Spinelli aside entirely I submit that kind of reasoning will not support finding constitutional probable cause.⁴

In McCreary v. Sigler, supra, the informant was unnamed and had told the affiant that the informant was an eyewitness to the crime of breaking and stealing from a coin box in a public telephone booth. The informant told the affiant the identity of three persons involved, that one of them had talked to the informant at the scene and that the informant saw McCreary and one of the girls in the booth and at that time heard coins rattling in the box. Based upon this information officers had "tailed” McCreary and the girls and thereby developed further evidence of McCreary’s guilt. The court found credibility had been sufficiently shown (406 F2d at 1269):

"This total information provides a sufficient nexus and speaks of probable cause 'now.’”

In answer to the claim that the informant was not "identified in any way” the court answered in part (406 F2d 1268):

"Yet mere identification by name does not establish reliability of the person. Even if the informant’s occupation were given, this would not by itself lend 'credibility’ to what he says.”

McCreary actually tends to support the proposition that something more than identity by name, address, and occupation is required to satisfy constitutional requirements.

In United States v. Mahler, 442 F2d 1172 (9th Cir 1971) the crime was interstate travel to commit extortion. The victim had been the defendant’s paramour and defendant had taken pictures of her and the two of them that "could be more than a little damaging to her.” He attempted to use the pictures to extort property from her. Part of an affidavit to search defendant’s property was on the basis of the unsworn statements of the victim to the affiant or a brother officer. These statements were corroborated in part by another woman, who was also "fully identified.” The affidavit contained data supporting the victim’s statements in many pertinent details. The court did state that when the informant is the victim it need not be shown by other facts that she is reliable. There is nothing in the case which would indicate that mere naming of an informant would show credibility, however, and it is obvious that the court has found "credibility” from the inherent nature of the tale and corroboration. The court cites McCreary as authority.

In United States v. Unger, supra, relied upon by the Burke court, the informant was not named. The affiant dubbed the informant a "citizen,” which I take to be in the nature of a conclusory disavowal by the police officer affiant that the informant was of the criminal milieu. The affidavit swore that the citizen had informed the officer of the facts which explained a perfectly legitimate reason for the informant to be where he was in a position to observe the contraband. It was sworn that the informant claimed to be working at his occupation in the basement of an apartment building where he saw a locker containing weapons of a kind which the informant recognized because of his military experience, that he had then called the police to report this experience, had pointed out the building to the police and had drawn a detailed diagram to assist the police in finding the contraband. There is nothing in this case to suggest that merely naming an informant who claims to be an eyewitness is enough to justify a neutral and detached magistrate in believing the information.

In a later case, the Unger court held insufficient an affidavit to establish the informant’s veracity even though he was named and "came forward” to the police with his information and it appeared that he must have been an eyewitness, although that was not asserted. United States ex rel Saiken v. Bensinger, 489 F2d 865 (7th Cir 1973).

As above noted the Burke court also relied upon United States v. McCoy, 478 F2d 176 (10th Cir 1973). This was an airplane hijacking case. A named informant was a passenger, interviewed by an FBI agent who conducted a throw-down, snapshot lineup, at which the passenger identified defendant as the hijacker. Another named informant was a stewardess who claimed she had received a note from the hijacker. The note was turned over to an FBI agent and examined in the FBI laboratory where it was found by expert opinion to be the product of the defendant. Another named informant was a state police officer, who was a fellow Air National Guardsman with the defendant and supplied the information that defendant was an accomplished sky diver and had discussed with the informant "a plane sky-jacking” and that on the night of the crime defendant was not at home. The court found the affidavit sufficient without any discussion of whether merely naming these informants would have been sufficient to establish a basis for a finding of veracity.

In summary, the Burke court and the Bell court seemed to have adopted a rule that naming the informant who claims to be an eyewitness sufficiently establishes the informant’s veracity for probable cause purposes, but it is submitted the logic of the position is not sound and that in Bell the affidavit contained far more than just names of the informants. The other cases relied upon in Burke seem of little comfort to the Burke court either because the affidavit disclosed much more than mere name concerning the informant and his opportunity for eyewitness observation or because the court seems to have paid no attention to anything other than the basis of the informant’s knowledge as distinguished from whether he was telling the truth as to the initial step, i.e., that he was an eyewitness.

Another United States Court of Appeals case, Cundiff v. United States, 501 F2d 188 (8th Cir 1974), relies upon McCreary, supra, and holds sufficient an affidavit which identified a chain of informants claiming to be eyewitnesses in a bank robbery case. One was the teller from whom the money was taken, who described the robber and his clothing as being a rust colored jumpsuit. The next was a lady outside the bank who saw a man in such a jumpsuit leave the area of the bank and go behind a building, from behind which a green car left the area. The next were two boys who saw a man in such a jumpsuit come behind the building and get into a green Mercury auto with a damaged fender. The next was a man who while standing in his front yard had seen such a car within a block of the bank and the driver looking toward the bank. Within 20 minutes investigating officers found such a car parked at a nearby motel and thereby apprehended defendant who was a guest at the motel. The court said (501 F2d at 190): .

"We are sure that the personal and recent knowledge of identified eyewitnesses establishes sufficient probable cause in the instant case.”

Do not these data, by implication, cry out the veracity of the informants?

The majority cites the Burke, Cundiff and Bell cases as standing for a rule that

"an affidavit naming a 'citizen informant’ as the source of the information set forth in the affidavit sufficiently satisfies the 'veracity’ requirement of Aguilar-Spinelli, without setting forth further facts showing that such an informant was 'credible’ or that his information was 'reliable.’”

Burke may fairly be said to stand for such a rule because that is what the court held on the facts before it. In Bell and Cundiff there was much more in the affidavit than the mere identity of the "citizen-informants.” None of those opinions seem to realize that calling one a "citizen-informant” is just as conclusory as calling him "reliable informant.” How can the magistrate know any more concerning the veracity of the informant simply because the affiant asserts the informant to be a "citizen-informant” than the magistrate knows when the affiant asserts the informant is "reliable”? He can’t, of course. It follows, therefore, that the affidavit must contain data concerning the informant which either directly tends to establish his veracity or permits logical inferences to establish that the informant is probably telling the truth. In some of the state court cases cited by the majority for the above mentioned rule such data clearly appears.

In State v. Drake, 224 NW2d 476 (Iowa 1974) the crime was receiving and concealing stolen goods. The informant was an unnamed person claiming to be an eyewitness. It appeared that the informant saw the stolen goods (racks of clothing) on the defendant’s property when the informant was taken to the property as a possible purchaser thereof by a real estate salesperson. The informant was identified by occupation and employer. I submit there was enough here to establish a legitimate reason for the claimed eyewitness to be where he claimed to be thereby tending to dispel any inference that he was anything other than a concerned citizen without motive to falsify.

State v. Lindquist, 295 Minn 398, 205 NW2d 333 (1973) involved a warrantless arrest. The sufficiency of probable cause for police action was the issue, however, and the informant gave the police her name, address and telephone number and claimed to be an eyewitness to defendant’s possession of marijuana. She told the police her motive for coming forward was fear that someone such as defendant would supply drugs to her child. She furnished much detail concerning the elements of the crime. Again a case is presented of one who furnishes a motive for coming forward which prima facie appears to afford a basis for concluding the informant to be a concerned citizen with no motive to falsify.

State v. Paszek, 50 Wis2d 619,184 NW2d 836 (1971) is cited by the majority as standing for the rule while Professor LaFave (1 LaFave, Search & Seizure, § 3.4, p. 591 (1978)) seems to indicate that the case does not stand for the rule. In any event the case involved a warrantless arrest and search incidental thereto. The issue was whether there was probable cause for the police actions. The informant had called the police by telephone and during the course of the conversation identified herself by name, occupation and place of business. She furnished detailed information concerning defendant’s attempt on that morning to sell her marijuana at the place where she worked. She told police defendant would return to attempt a sale later that day. She described defendant in some detail. The police came to where she worked. Defendant returned as predicted and she identified defendant to the police. I submit the information furnished to justify police action was sufficient to establish to a magistrate’s satisfaction that this informant was an average citizen motivated by nothing other than to cause the arrest of one engaged in criminal activity. The "veracity” of this informer shines through.

People v. Glaubman, 175 Colo 41, 485 P2d 711 (1971) states that the "citizen-informer” who acts openly should be encouraged. In this case the affidavit named the informant and identified her by occupation, employer and place of employment. The affidavit contained detailed information disclosing circumstances of the legitimate reason for the informant’s presence at the place from which her observations were made. The opinion says that probable cause (and therefore veracity) can be shown by identifying the informant by name and address. I submit there was far more before the magistrate to afford him basis for an inference that he there dealt with an average citizen with no motive to falsify but instead the desire to act only as a good citizen.

Professor LaFave in the work cited above at page 591 lists cases which stand for the proposition that veracity may be assumed where the data shows that the informant is an "average citizen” reporting his personal observations. Professor LaFave, however, rightly observes that veracity may appear by the very nature of the circumstances under which the incriminating information became known. For this he cites People v. Paris, 48 CalApp3d 766, 122 CalRptr 272 (1975). The case concerned a search upon a warrant. The informant was named and identified by occupation (a telephone installer and reserve police officer). The affidavit disclosed that the informant told the affiant that the informant was in the course of his occupation as telephone installer which caused him to go into a room where he observed what he thought to be marijuana based upon his training as a reserve police officer. Again we have a case where the data carries the indicia of the veracity of the informant. The magistrate may easily infer that the informant is an average citizen whose motive is to assist in the apprehension of a criminal. There is nothing to arouse any suspicion that the informant is himself involved in crime in general or this one in particular.

Professor LaFave lists several cases. I have read each of them and in each there are circumstances revealed concerning the informant which supply a basis for deeming him to be veracious. This is true although the court may say that naming the "citizen-informant” suffices. That sort of statement obviously begs the question for the court has found the informant to be a "citizen-informant” by reason of data which affords a basis for a reasonable inference that the informant is a "truth speaker.”

The same idea is summed up in People v. Schulle, 51 CalApp3d 809,124 CalRptr 585 (1975) where the court says (51 CalApp3d at 814):

"* * * A 'citizen-informant’ is a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. * * * It is reasonable for police officers to act upon the reports of such an observer of criminal activity. * * *”

The court goes on to point out the other side of the coin is found in the case of the stool pigeon or person who is "criminally involved or disposed.” Such persons, says the court, are generally motivated by something other than good citizenship.

From all of this I conclude that in assessing the trustworthiness of unsworn information furnished by one who claims to be an eyewitness to criminal activity the first inquiry must be whether there is sufficient data to afford a basis to find that the informant is veracious. Obviously this will not appear from merely naming the informant. A man’s name alone tells the magistrate nothing concerning his veracity. The magistrate may, however, be persuaded that the informant is veracious where the data furnished to the magistrate either directly establishes that condition in some manner or, at least, indirectly establishes it by furnishing details which permit the reasonable inference that the informant acts with no other motive than that of the good citizen who is bent on assisting in law enforcement. There should be nothing left unexplained which would tend to arouse the magistrate’s suspicion that the informant acts from other motives.

The Special Proposition That This Affidavit Is Insufficient.

The majority and concurring opinions find the affidavit in the case at bar to be sufficient to establish a basis for the magistrate to conclude that the informant is veracious. I totally disagree; moreover, I find the affidavit by neglecting to afford data to support a legitimate reason for the informant to be in a position to make his observation makes his veracity suspect on the very face of the affidavit.

The majority takes the position that there is another "factor” which entitles the named informant to the presumption of veracity.

This "factor” is made up of elements discussed following the setting forth, in haec verba, of the affidavit.

1) Initiation of a false report.

2) Exposure to liability for damages for malicious prosecution.

3) Exposure to the penalties of perjury.

4) Initiation of "contact” with the police by the informant and exposition of his eyewitness information.

I shall discuss these elements of the other "factor” seriatim.

1) Initiation of a false report to a law enforcement agency is a crime. ORS 162.375. It is a crime whether the initiator is named or unnamed in an affidavit by the initiatee. Named or unnamed in the affidavit, the informant’s identity was known to the police, and if (a) his report was false and (b) the state should choose to prosecute, he would be just as subject to prosecution and conviction in one case as in the other.

2) If all other elements of the tort can be established, one who sets the criminal prosecution in motion is liable to the party wronged whether or not the tortfeasor is named to the magistrate. Naming him merely makes his identity more readily discoverable to his victim. Failure to name him is, I submit, not an insuperable bar to discovery of his identity by the hypothetical plaintiff in whose favor the criminal proceeding has terminated.

3) Accepting the premise, arguendo, that a named informant is more likely to be called (but by whom?) as a witness in later stages of the criminal prosecution, I answer that he cannot be successfully prosecuted for perjury unless he is shown beyond a reasonable doubt to have been false in his testimony when called as a witness. Lying to the affiant police officer subjects him only to prosecution under ORS 162.375, as discussed under the first element, supra. It is reasonable to assume that the magistrate, if he thought of it at all, would suppose that the informant would not be called by the criminal defendant as a witness unless the informant is prepared to recant. This should speak little to the magistrate of veracity. The state would call him, if otherwise advisable, only if he is expected to stay by his story. Only if (a) that story after given in testimony can be shown to be false and (b) the state should choose to prosecute is the informant exposed to the penalties of perjury. This is a slender reed upon which the magistrate should depend for accepting the veraciousness of the informant.

4) That the informant was present at the scene of the crime with the permission of the defendant and was offered by the defendant an opportunity to participate in criminal activity and that the informant, in those circumstances, "contacted” the police about the incident seems not nearly so apt to attest to his veracity as would the circumstances of such "contact” by a completely disinterested bystander witness to crime. It would seem that in the circumstances described in the affidavit the magistrate would want to know something more about the presence "with permission” of the informant at the crime scene.

Still under this element, I find the affidavit’s description of the crime scene and of the informant’s knowledge of the nature of the contraband impressive in satisfying the knowledge prong, but I fail to understand how it supports the magistrate in finding the informant to be a "truth speaker.” The further fact that he made his police report within approximately 24 hours certainly goes to the issue of whether it is probable that contraband is still on the premises, but how that should be of aid to the magistrate in drawing the conclusion that the informant probably speaks with straight tongue completely escapes me.

Still under the same element, I would note that if the affiant police officer were able to swear to some other facts which independently of the informant’s advice tended to corroborate that advice in salient part, we might have an affidavit in which veracity of the informant is established under the second spur of the veracity prong, that is to say, reliability. There is nothing of that kind in this affidavit.

The purpose of this exercise has thus far been to attempt to show that while giving lip service to requiring something more than mere naming of the informant, the majority has actually required nothing more. The "factors” are nothing more than reasons for the argument that naming alone is enough.

For myself I would hold that in order to give the magistrate a basis for finding the named informant to be veracious something more is required. If the affiant has knowledge which tends to show that his named informant is a true "citizen-informer” such as an apparently nonparticipating, bystander eyewitness or a true victim of the crime, such details should be made available in the affidavit upon which judicial determination of probable cause is to be made. Cf.t State v. Dunavant, 250 Or 570, 444 P2d 1 (1968); State v. Hughes, 20 Or App 493, 532 P2d 818 (1975). It seems only reasonable to require that if there are factors other than the informant introducing himself by name to the police officer which have led the police officer to believe that the informant is a "truth speaker,” the police officer affiant should make those known to the magistrate. I venture to say that a magistrate would feel put upon should he find that an affiant had asked him to rely upon less than the affiant knew in assessing the informant’s veracity. There must be more for the magistrate than a named informant’s plausible lie.

It must readily occur to anyone that in the situation with which this case is concerned there was an easy way to avoid this controversy over the informant’s veracity. Since the police officer affiant swore that the informant came forward openly with his report of criminal activity what better way to put his information before the magistrate existed than to have the informer make his own affidavit. The thought occurred to this writer prior to my reading the case of United States v. Burke, supra. In that case, as I have noted, the court went further than any other in upholding an affidavit which identified the informant by name and address only.⁵ Even that court, however, (517 F2d at 381) pointed out how easy it would have been to get an affidavit from the informant himself and thus obviate the entire inquiry as to his veracity. Where the police are dealing with a true "citizen-informant” in circumstances which make it relatively easy to obtain the informant’s own affidavit, it would seem to be a highly salutary procedure.

I conclude that the majority is correct in acknowledging that the applicable constitutional provisions require more than mere naming of the informant to satisfy the veracity prong of the requirement that probable cause be established in the affidavit. I must dissent from the majority’s decision that the affidavit in this case actually does more than to name the informant insofar as affording to the magistrate a basis upon which to find the informant to be a veracious individual either generally or in this instance.

1 On the contrary, as I shall discuss later in the body of this separate opinion, I find information which, I believe, should tend to arouse the magistrate’s suspicion that he needs to know something more of this informant to dispel a rather logical inference that this informant is of the "criminal milieu.”

2 This use of the word "reliability” is subject to the kind of criticism made by Judge Moylan in his article cited in the text of this opinion. See pages 755-756. The Court of Appeals has apparently used the word "to connote the overall subject of the outline itself and every one of its constituent parts.”

3 The court even noted the possibility that the informant could have been lying to the affiants but brushed this off as being just part of the working of the system.

4 I have no particular problem in agreeing that the affidavit in United States v. Bell, 457 F2d 1231 (5th Cir 1972) is sufficient because of the inferences which may be drawn from circumstances disclosed in the affidavit other than name and address or occupation of the informants, respectively.

5 The court was seemingly completely unconcerned that the affidavit did not show any legitimate errand which took the informant to the vantage point for his observations.