concurring, and dissenting in part, with whom Mr. Justice Belaval concurs.
I agree with the underlying reason of the opinion of the majority for reversing the judgment in this case. It is evident that it was in the light of all the facts attributed to the affiant in the search warrant — and not merely in the light of the facts set forth in his affidavit — that the judge determined the existence of probable cause. He so states expressly in the warrant in which, after referring to facts not appearing in the affidavit, he says: . . and having this Court found probable cause that Juan Vega at' the place and in the aforesaid manner, is employing the material and tools above mentioned, etc.” (Italics ours.) Therefore, the judge based his determination of probable cause on an alleged affidavit which the officer never made, in which, in passing, he mentioned the bolita slips as part of the description of all the operations of a clandestine banca, of which no mention is made in the affidavit actually made by the *711police officer. The fundamental guaranty against unreasonable searches and seizures is defeated by a judicial determination of probable cause based on imaginary facts.
Yet, I cannot agree with that part of the majority opinion where the Court concludes that the affidavit which the police officer actually made, if it had not contained the fatal variance pointed out above, was sufficient to issue the warrant. To determine whether the affidavit establishes a probable cause justifying the issuance of a search warrant pursuant to § 10 of the Bill of Rights of our Constitution 1 and § 503 of the Code of Criminal Procedure,2 we must examine the warrant in the light of the single fact on which the Fiscal of this Court relies to uphold its validity: that the police officer testified that he saw the defendant . . in the porch of his house while he received from a dark, tall, thin man, about 35 years old, a packet of bolita slips in different colors. . . .” This statement by the police officer — that the slips of the packet which he saw in defendant’s hands were bolita slips — without any further description from which the judge could determine, by himself, that they were actually bolita slips, constitutes, in my opinion, a mere conclusion which is insufficient to support the warrant.
The determination of probable cause is a function of the judicial authority which can not be exercised unless the judge, from the facts set forth in the affidavit is “therefore satisfied” that there are grounds for making the application. Section 506, Code of Criminal Procedure. Affiant’s labelling of such slips had to be based on facts, that is, on a description *712of those slips from which the judge might reasonably conclude that they were bolita slips as distinguished from any other kind of slips or tickets not used in that game.
An affidavit may be rendered insufficient, notwithstanding the fact that an affiant sets forth therein his “personal appreciations and observations of facts which a police officer perceived through his own senses”, which in proper cases may be insufficient, People v. Albizu, 77 P.R.R. 843, 851, if the facts observed and set forth do not establish, by themselves, sufficient cause for the search. There is considerable difference between the appreciations and observations concerning facts which in themselves establish probable cause and the appreciation and observation of facts which do not. This is not a case of an object or artifact — still, roulette, machine gun — whose conformation or physical structure, by itself, may produce in the observer an unmistakable perception of that object or artifact, which, upon being conveyed to the judicial authority through an affidavit, may only require a mere descriptive phrase, besides its name, to lead the judge to the conviction required by law for a valid determination of probable cause. This is a case of “a packet of bolita slips of different colors” that the affiant says to have seen being delivered to the defendant by a dark man whom he unnecessarily describes with the precision with which he should have described the slips and not their bearer.
The essential thing, in my opinion, is not whether the police officer had a sensation through the visual perception which he correctly interpreted: the essential thing is whether the individual guaranty against unreasonable searches has been fulfilled by the inferences that the agent deducted from his observation without having stated the basic fact on which he based those inferences. If the affiant saw “a packet of bolita slips, in different colors,” there cannot be any rational justification for his failure to state in his affidavit the facts on which he based his conclusion that the “packet” in question *713contained bolita slips. If the agent perceived facts from which he might reasonably infer that the “packet” contained bolita slips, a minimum sense of respect for the constitutional guaranty made it imperative for him to convey to the judge, in his affidavit — in order that the latter could make his own -determination, as required by law, — the facts which he observed and on which he based his inference, that is, the description of the printed papers which he labeled bolita slips, and not that he communicate to the judge his mere inference.
The fact that this Court has taken judicial notice —People v. Mantilla, 71 P.R.R. 35— of the manner in which bolita is played, does not supply the deficiency of the affidavit. But if we were to resort to that knowledge in order to measure the sufficiency of the affidavit in issue, we would find that in the case of printed slips, they contain three printed digits, the winning number generally corresponding to the last three digits of the first prize of the official, lottery of Puerto Rico. Did these slips contain three printed digits? Four? Five? Where in the affidavit is there any indication that might convince the judge who issued the warrant, in performing his exclusive function — not to be delegated to a public peace officer — of determining probable cause, that they were slips of the prohibited bolita game? Why not of the official lottery of Puerto Rico? Why not of any other kind of clandestine lottery, of the kind prohibited by law, not necessarily bolita?
Neither the constitutional guaranty against unreasonable searches nor the equal demand of judicial determination of probable cause to order a search can be met by that unsubstantial description which submits the exercise of the unfettered judicial function to the conclusive criterion of a police officer, and places in his hands, supported only by his own inference, the protection of the citizen from the arbitrary invasion of his home.
“No warrant for arrest or search and seizure shall issue except by judicial authority and only upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the . . . things to be seized.”
This section reads as follows:
“A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.” (Italics ours.)