(concurring in the result):
I would affirm this case on the basis of the Supreme Court decisions in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The majority opinion’s obsession with the Aguilar-Spinelli test (16 separate citations to either or both cases in the majority’s relatively short opinion), even though jettisoned by the Supreme Court and this Court long ago, is somewhat mystifying. See United States v. Wood, 25 MJ 46 (CMA 1987). Moreover, it appears strange for the majority to place such emphasis on advisory comments by the drafters of the Manual for Courts-Martial, United States, 1984, in the course of constitutional litigation on the issue of probable cause at this Court! See Drafters’ Analysis to Mil.R.Evid. 315(f), Manual, supra, at A22-29. The tail should not wag the dog. The Supreme Court’s holding in Gates should be the focus of our analysis in this case.
Based on the totality of the circumstances (see Illinois v. Gates, supra), I conclude that probable cause existed in this case to search Room 103, Building 7060, at Fort Bliss, Texas. See Ornelas v. U.S., supra (de novo standard of review). Ms. Booker provided a detailed statement against her interest which supported the search of appellant’s room. It was corroborated by (1) the discovery of 45 bags of marijuana at her apartment; (2) verification that appellant was in Room 103 at the YMCA; (3) a positive field test on that marijuana; and (4) appellant’s residence at the YMCA The challenged seizure was reasonable and lawful under the Fourth Amendment. In my view, the law enforcement officials and the military magistrate acted in a reasonable and proper manner under the circumstances of this case.