dissenting:
I agree that the contents of the search warrant were properly proved by use of the photostatic, copy in this case, but I cannot find the warrant valid under Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969) and Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964). Until those decisions are modified or overruled by the United States Supreme Court they are binding on this Court, and I am unable to join in simply ignoring their teachings.. Our own Supreme Court in State v. Campbell, 282 N.C. 125, 129, 191 S.E. 2d 752, 755 (1972) has succinctly summarized these as follows:
“The affidavit [indicating the basis for the finding of probable cause by the issuing magistrate] may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant’s informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circmnstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable. [Citations omitted.]
*539“Whether the affidavit is sufficient to show probable cause must be determined by the issuing magistrate rather than the affiant. This is constitutionally required by the Fourth Amendment.” (Emphasis added.)
The affidavit of the deputy sheriff on which the warrant was issued in the case now before us stated that the affiant had probable cause to believe that defendant had on his premises and in his vehicle certain property, to wit, non-tax-paid whiskey. It described the premises and vehicle to be searched with sufficient particularity, and then contains the following:
“The facts which establish probable cause for the issuance of a search warrant are as follows: A confidential and reliable informant who has given reliable information says that there is non tax paid whiskey at above location at this time.”
No other facts were stated in the affidavit on which the warrant was issued and there is no suggestion in the record that any evidence other than that contained in the affidavit was furnished to the magistrate to support the finding of probable cause at the time the warrant was issued.
When the affidavit is examined in light of the holdings in Aguilar and Spinelli, I find that even if it be considered minimally sufficient to allow the magistrate to determine that the confidential informant was credible (see State v. Brown, 20 N.C. App. 413, 201 S.E. 2d 527), a point as to which I have considerable question, nevertheless it is totally deficient in that it contains none “of the underlying circumstances from which the affiant’s informer concluded that the articles sought were where the informer claimed they were.” State v. Campbell, supra. The majority opinion appears to lay stress upon the particularity with which the house and vehicle to be searched are described in the affidavit, but a search warrant to be constitutionally valid under the Fourth Amendment must in any event particularly describe the place to be searched, and one may easily be able to give an exact description of the exterior of a house or automobile without having the slightest information as to what is inside. The majority opinion also emphasizes that the affidavit “states that the contraband is at the described location at the time the affidavit was signed,” and draws the conclusion that “[i]t is obvious from the unequivocal information given by the informant that the accusation was not casual rumor.” The *540conclusion drawn may be obvious to the majority. It is not to me. Quite incidentally, the unequivocal information which the majority here finds “sufficiently substantial to justify a finding of probable cause by the magistrate” turned out to be false. No non-tax-paid whiskey, the only contraband mentioned in the affidavit, was found.
If the majority opinion is correct in finding the search warrant in this case constitutionally valid to authorize a search for non-tax-paid whiskey, then the question is presented whether seizure of tax-paid whiskey not mentioned in the warrant and not inherently contraband was also authorized by the warrant. The problem presented is not without difficulty. See: 68 Am. Jur. 2d, Searches and Seizures, § 112, p. 768, 769. The majority opinion solves the problem by ignoring it.
I find error in the trial court’s holding the search warrant valid and in admitting evidence of the tax-paid whiskey obtained by the search, for which I vote to award defendant a new trial.