(concurring). I join in the court’s opinion except so much as discusses the question whether the good faith of the officer bears upon the rule of exclusion which Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), finds applicable to the states. Being unsure of the reach of Mapp, I would express no view until a case before us should require us to do so. I do not believe this case does.
*267The State presses the “good faith” of the officer, which here can relate only to the officer’s belief that what he knew constituted probable cause and that his affidavit revealed it. As to this, the short answer is that we are reviewing the judgment of the magistrate and not the judgment or action of the policeman. Whether in other settings the “good faith” of the officer could be significant need not be decided.
Here, unlike Mapp, a magistrate did intervene between the policeman and the search and thus to that extent the constitutional right was respected. I do not know whether the United States Supreme Court will apply the thesis of Mapp where a magistrate has acted, or if it will, whether it will use the same standard employed when a federal order for a warrant is involved. I think it unnecessary to forecast the answer, because I would hold that where, as here, the affidavit is palpably devoid of any basis for evaluation and decision as to whether probable cause in fact existed, the product of the search should be suppressed to vindicate our State Constitution. In these circumstances, the order of the magistrate is more an acquiescence in the request of the State than the product of independent judicial action.
For affirmance — Chief Justice Weinteaub, and Justices Jacobs, Peancis, Peoctoe, Hall, Schettieo and Hane-man — 7.
For reversal — Hone.