¶1dissenting:
¶2Whatever may be the immediate impact of the majority’s decision, its opinion will be read to mean that either of these bald statements, referring to an unnamed informer in an application for a search warrant, is alone sufficient to satisfy the “credibility-reliability” test enunciated in Aguilar v. Texas, 378 U. S. 108, 114, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964): “a reliably established informant, who is responsible for eleven narcotics arrests”; or an informant “who has provided reliable information ... for the past six months.” With this holding I cannot agree. For reasons that follow, therefore, I respectfully dissent.
¶3Although the majority suggests that the view it adopts here enjoys widespread support, that claim does not withstand analysis if we examine many of the cases upon which it relies.
¶4United States v. Harris, 403 U. S. 573, 91 S. Ct. 2075, 29 L.Ed.2d 723 (1971), the most recent case decided by the Supreme Court on this question, is not supportive. First, whether the majority opinion there establishes a binding precedent is seriously open to question. Divided into three parts, it was adopted as the judgment of the Court by only a bare majority of five members. A total of four Justices joined in Parts I and III, and only three joined in Part II. Because a total of five joined in the judgment, the decision of the court below was overturned; but a total of four members joined in the dissenting opinion authored by Justice Harlan. Thus, no one of the three parts was adopted by a majority of the Court. See People v. Anderson, 389 Mich. 155, 205 N. W.2d 461, 467 (1973) and cases therein cited.
¶5It was in Part II — joined in by oply three members of the Court — that Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), was criticized for rejecting as “bald and unilluminating” the assertion that the suspect was known to the affiant as a gambler. Thus, notwithstanding the statement in Harris, the holding in Spinelliwas properly applied by the Court of Special Appeals, in this case, to the final sentence in the affidavit.
¶6*619Secondly, it should be emphasized that "in none of the cases cited by the majority, including Harrisitself, is it suggested that Aguilarand Spinellihave been somehow overruled; or that there has been any retreat by the Supreme Court from the principles articulated in those two cases. To the contrary, both continue to be cited extensively with approval while held to be distinguishable from the facts in Harris,
¶7Thirdly, quite apart from the fact that this case is distinguishable from Harris, the latter can be reconciled with Aguilarand Spinelli. As Judge Thompson noted for the Court of Special Appeals, there was no “reliable information to corroborate the informants,” just as there was not in Aguilar. In Harris, however, a law enforcement officer other than the affiant had previously “located a sizeable stash, of illicit whiskey in an abandoned house under Harris’ control during this period of time.” Thus, it is perhaps arguable that the informer’s tip was “corroborated by independent sources” in. accordance with Spinelli. There, the Court considered whether, in light of the affidavit’s failure there to meet the “two-pronged test” of-Aguilar, it was sufficiently corroborated, nevertheless, by independent investigative efforts of the FBI. In concluding that it was not, the Court referred to Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327 (1959), as providing “a suitable benchmark” for making that determination.
¶8United States v. Rich, 407 F. 2d 934 (5th Cir. 1969), cited by the majority, is an excellent case in point for demonstrating how independent investigation may enable an affidavit — in part based on information obtained from an unidentified informer — to satisfy the test prescribed in Spinelli. Suffice it to say that Rich, being clearly distinguishable, provides no support for the majority opinion.
¶9Similarly, United States v. Crawford, 462 F. 2d 597 (9th Cir. 1972), cited by the majority for support, fails to do just that, and is distinguishable. For example, the suspects [of narcotics violations] were alleged to be “presently lodged” in the residence of one of the confidential informants.
¶10*620In United States v. Hood, 422 F. 2d 737 (7th Cir. 1970), it was alleged by the affiant that “one of the informants had, ‘on various occasions in the past furnished information leading to the recovery of similar type of stolen property.’ ” This underscores the very point at issue here. The Court of Special Appeals, correctly, in my view, has consistently stressed the distinction between informers whose information has led merely to arrests — as in this case — or convictions. The rationale for this distinction is too clear to require extended comment. One bespeaks “credibility-reliability” of an informer, the other does not. I do not, however, suggest that information leading to a conviction is a sine qua non for crediting an informer. The point to be emphasized is that where, as in Hood, supra,information previously furnished by an informer leads to the recovery of stolen property, it suggests “probability” in much the same manner as a conviction does.
¶11The facts in United States v. Sultan, 463 F. 2d 1066 (2d Cir. 1972), are also distinguishable from those here, and call into question whether Aguilarwas even applicable there. Clearly, it affords no support for the majority here. There, the informer, a cousin of the suspect, told a federal agent where merchandise was being illegally concealed from the Trustee in Bankruptcy. As Judge Moylan said, while concurring in Dawson v. State, 14 Md. App. 18, 34, 284 A. 2d 861 (1971): “That a very different rationale exists for establishing the credibility of named citizen-informers than for establishing that of the more suspect and anonymous police-informer is widely acknowledged in recent case law.” There can be little doubt from reading the affidavit here that the informers were of the “more suspect and anonymous” type, rather than “citizen-informers.”
¶12State v. Cannon, 292 A. 2d 219 (R.I. 1972) does not, as contended, support the majority. While it speaks of an informer whose information previously led to arrests, the affidavit details those arrests.by listing the names of those arrested, as well as the date, place, and the charges lodged against them. The case aptly demonstrates how detail may be employed to satisfy the “credibility-reliability prong.”
¶13*621In United States v. Gazard Colon, 419 F. 2d 120 (2d Cir. 1969), which involved a warrantless arrest, narcotics agents, under circumstances reminiscent of the facts in McCray v. Illinois, 386 U. S. 300, 87 S. Ct. 1056, 18 L.Ed.2d 62 (1967), made independent observations after receiving information from an informer, but prior to arresting the suspect. Those independent observations of the narcotics agents amply reinforced the informer’s information so as to provide probable cause for the arrest.
¶14Finally, Huff v. Commonwealth, 213 Va. 710, 194 S.E.2d 690 (1973), presents a situation in which the observations by police — all detailed in the affidavit — supply the independent corroborating evidence found to be lacking in the FBI surveillances chronicled in the Spinelliaffidavit.
¶15In sum, each of the cases mentioned above — all relied upon by the majority — can be squared with the decision below and my reading of Aguilar, Spinelli and Harris.
¶16Upon what, then, does the majority rest its holding that the affidavit here satisfies the “credibility-reliability prong?” First, it relies upon the initial sentence, “Peter Fletcher, a known and convicted Heroin user was seen at this apartment.” Although the Court of Special Appeals was unwilling to assume — correctly, I think — “that the observer was one of the affiants [since, for example,] the affiants could well have received this information from others,” the majority is quite willing to infer from the same statement that it “can only mean seen by one of the affiants.” (emphasis added).
¶17But even apart from that unwarranted assumption, the majority errs in even considering that sentence while applying the “credibility-reliability” test of Aguilarto the informers. It is the second prong of Aguilar, whether there are “underlying circumstances from which the officer concluded that the informant ... was ‘credible’ or his information ‘reliable’ ” that confronts us here. And I fail to see how the presence of a known drug user, even if observed byAhe affiant, elevates the credibility of the informer to the level prescribed by Aguilar.
¶18*622Secondly, apparently sensing that the reference to the first informer as having been “responsible for eleven narcotics arrests” is insufficient, the majority infuses it with credibility derived from the remainder of the affidavit “as a whole.” In doing so, it paints with too broad a brush.
¶19The affidavit says, concerning ‘ the second informer, merely that he “has provided reliable information to this Dept, for the past six months.” This, even more profoundly than the description of the first informer, exemplifies the kind of conclusory statement which the Supreme Court refused to sanction in Aguilarand Spinelli. To credit this conclusion does violence to the central theme expressed in Aguilarthat “the court must still insist that the magistrate perform his ‘neutral and detached function and not merely serve as a rubber stamp for the police.’ ” 378 U. S. at 111.
¶20Thirdly, the majority proceeds upon the erroneous premise that the information provided by the informers can be considered in testing their veracity. Nothing in Aguilar, Spinelli or Harrissupports that proposition. As Justice Harlan, dissenting in Harris, so aptly stated:
“It is not possible to argue that since certain information, if true, would be trustworthy, therefore, it must be true. The possibility remains that the information might have been fabricated. This is why our cases require that there be a reasonable basis for crediting the accuracy of the observation related in the tip. In short, the requirement that the magistrate - independently assess the probable credibility of the informant does not vanish where the source of the tip indicates that, if true, it is trustworthy.” 403 U. S. at 592.
¶21Judge Will, dissenting in part from the decision in United States v. Hood, supra,put it more succinctly in referring to the same type of “bootstrap” reasoning adopted by the majority there when he stated:
¶22“But nothing plus nothing plus nothing is still nothing.” 422 F. 2d at 744. While we are not called upon to so decide, the *623information attributed to the informers in the affidavit here goes no further than to possibly meet the first part of the “two-pronged test.”
¶23All that remains in the affidavit is the statement that the “Kraft subject ... is known by Dept. Clarke to be an admitted user of Heroin.” Reliance for crediting that statement is founded on Harris, and it is indeed misplaced. To be sure, Chief Justice Burger, for the Court, in Part II of his opinion refers to a similar statement there as one upon which an “officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip.” 403 U. S. at 583. That statement, taken at face value, might well cast doubt upon what the Court had previously said in Spinelli, were it not that only three members of the Court, as we noted earlier, joined in Part II.
¶24In Spinelli, Mr. Justice Harlan stated for the Court what I still regard as the controlling principle:
“[T]he allegation that Spinelli was ‘known’ to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision. Nathanson v. United States, 290 U. S. 41, 46, 54 S. Ct. 11, 12, 78 L. Ed. 159 (1933).” 393 U. S. at 414.
¶25The statement here, regarding the Kraft subject being “an admitted user of Heroin” is further attenuated by the concession of the majority that it is ambiguous in being subject to the interpretation that she admitted her drug use to some unnamed person other than the affiant.
¶26The affidavit here clearly violates the fundamental precept enunciated in Aguilarby failing to reflect “some of the underlying circumstances from which the officer concluded that the [informants were] ‘credible’ or [their] information ‘reliable.’ ” 378 U. S. at 114. As such, it permitted the necessary inferences to be drawn by the police rather than by a “neutral and detached magistrate.” I think the Court of Special Appeals correctly decided this case and, for *624the reasons outlined above, I would affirm its judgment. I am authorized to state that Chief Judge Murphy and Judge McWilliams concur in this opinion.