dissenting.
San Juan, Puerto Rico, October 9, 1964
I, too, love the Bill of Rights, but I believe that in order that the courts may decide correctly the controversies it is necessary that they give special attention to the particular facts of each case. It is not enough to take a rule, whether of the Constitution, of a statute, or of a decision, and establish it as a major premise, placing underneath it and extracted out of context the issue in the case (minor premise), and, as if adding or subtracting, produce a result.
We should not be overimpressed either by the number of citations of cases per se which may be incorporated into an opinion. Cases are but decisions made by other men after examining other facts, in other places, and at other times. They only have a persuasive value for the intellect if their reasoning is applicable to the case under consideration. Excepting, of course, a situation which may arise whenever a case of a higher court necessarily binds a lower court, but this is not the situation in the case at bar.
Anyone who is acquainted with American legal bibliography and with a law library knows how easy it is to fill any number of pages with citations of cases on practically any human activity. It is sufficient to examine a volume of “Corpus Juris Secundum,” of “American Jurisprudence,” of “Century Digest,” the “Decennial Digests,” the “General Digest,” “Words and Phrases,” “A.L.R.,” “A.L.R.2d,” etc., to realize this. The noted professor K. N. Llewellyn wrote, in the English language, that “Cititis” is a disease abroad in the land, and that the cure is to ask: Where did Aristotle get his stuff from?1 I believe that a juridical opinion stands or falls depending on its reasoning and not on the space devoted therein to citations.
*36The search in this case was carried out by virtue of a warrant issued by a magistrate. That warrant was issued on the basis of an affidavit made by a police officer, which affidavit is sufficient because of the points therein covered and by the accuracy of their description. The officer declared that he knew for a fact, because he had seen it, that defendant “receives, checks, and handles material connected with the illegal game of bolita, in his residence, situated at . . .” (the street, number, and town follow). (Italics ours.) It is well to clarify that at the time the officer observed the facts described in his affidavit, he was working as an undercover agent.
In addition to the foregoing, the agent set forth in his affidavit that on August 19, 1963, he saw the defendant checking a paper list containing pencil-written three-digit numbers followed by hyphens and other amounts to the right, in the company of a person known as Francisco who had arrived earlier at defendant’s house in a yellow Plymouth automobile, license plate No. 801-069. The affidavit also contains a detailed description of the house where the facts took place and which was to be searched. The affidavit further recites that the said automobile is registered in the Automobile Division of the Department of Public Works in the name of Francisco Soto Rios, resident at 419 Borinquen Avenue, Barrio Obrero, Santurce, Puerto Rico.
As is known, the test or standard for determining probable cause cannot be expressed in rigid and absolute terms. The question consists in determining whether the facts and the inferences derived therefrom, in the opinion of a prudent and reasonable person, are sufficient to believe that an offense is being or has been committed in connection with which the law authorizes the issuance of a search warrant.2 It is not *37necessary for the magistrate who is going to issue the search warrant to be convinced that the law is being actually violated.3 It is- sufficient for the magistrate to reasonably believe that the law is probably being violated.4 That is why what the magistrate is going to determine is called probable cause; it is not certain cause.5
In the case at bar the search was carried out, the police having seized in defendant’s residence bolita material and $17,333 in cash, all of which defendant admitted. Defendant’s residence is the same as that described in the affidavit on which the search warrant was issued. Thirty-four pencil-written bolita lists were seized there containing three-digit numbers followed by a hyphen and other numbers to the right. We have taken judicial notice of how the bolita game is played in Puerto Rico. People v. Mantilla, 71 P.R.R. 35, 49 (1950).
In addition to other contentions which did not prosper, defendant alleged that the search was illegal because an unreasonably long period of time elapsed between the day the officer observed the handling of bolita material, August 19, 1963, and the date of the affidavit, October 20, 1963, the date when the facts were observed being too remote to enable the magistrate who issued the search warrant on October 20, 1963, to determine whether the evidence sought to be seized would still be in the premises to be searched. This is precisely the core of the problem raised: whether on the basis of that affidavit made quite some time after the observation of the facts, a prudent person could believe, *38in this particular case, that it was probable that the law was being violated in that place.
Sixty-two days actually elapsed between the date the undercover agent observed the facts and the date of the affidavit. Prima facie it seems like a very long period, but the fact is, as I said before, that the courts cannot, or should not, decide the cases prima facie. We cannot make case law out of impressions. It is not enough to read the Bill of Rights, extract the issue out of context, and then reach a conclusion paying no attention to the facts of the case.
As we said in People v. Albizu, 77 P.R.R. 851, 857 (1955), “our statute does not provide for a specific period of time, after the occurrences, within which the affidavit supporting the search warrant should be made.” There we said that the affidavit should be made “within a reasonable time after the affiant becomes acquainted with the facts reported therein, it being part of the judicial function, in determining whether there is probable cause, to judge, in each case, whether the facts set forth are so remote that they do not render probable the existence of cause for the search.” (Italics ours.) It should be noticed that the gist of the problem is whether or not there is probable cause at the time of issuing the search warrant.
The law provides, in turn, that after a search warrant is obtained the same shall be executed “within ten days of its issuance.” Rule 232 of the Rules of Criminal Procedure. The two rules announced, one jurisprudential (of the reason-ability of the period of time) and the other positive (the period of 10 days to execute the warrant), are not whimsical. They have their rationale, as I shall point out hereinafter.6
*39The nature of the offense is perhaps the most important factor in determining whether it is probable that the offense in question is still (after observing the facts and making the affidavit) being committed at the time of issuing the search warrant. There are offenses which can be committed only once, as for example, killing a particular human being. Others, although they may be committed for a short period of time, cannot continue to be committed indefinitely, as for example, beating a human being. Other offenses may continue to be committed for many days, as for example, printing counterfeit internal-revenue stamps, betting on the bolita, or operating a bolita banca, and unlawful conspiracies.
The nature of the offense at the time the magistrate is going to determine whether or not there is probable cause for issuing the search warrant plays a very important role. It is clear that if 60 days ago A was beating B inside a house, after the lapse of such period B could not be rescued from his torture by entering that place. But the same may not be said of the bolita game. On the contrary, it is normal and probable that if betting on the bolita or operating a bolita banca was taking place there, such offense is still being committed as long as nothing is done to prevent it.7 The issuing magistrate in this case was justified in believing that there was probable cause, in believing that it was probable that the law was being violated there. It is ineffable the naiveness revealed by the majority opinion in saying that the operation of bolita observed and described by the officer in his affidavit “is an isolated fact.”
The offense in the case at bar, by its nature, meets the standard of reasonability which we stated in People v. Albizu, supra at 857. The standard therein stated is not blind *40and rigid but realistic, to be applied jurisprudentially to each particular case as warranted by the circumstances thereof.
I believe that the majority is mistaken as to the importance attached to the time factor, in stating in its opinion that “in order to determine probable cause, the time elapsed since the facts were observed until application is made for a search warrant is of utmost importance.” (Italics ours.) Although the time elapsed is a factor to be considered in making such a determination, in my opinion, as I have said, the most important factor is the nature of the offense. To hold otherwise is to subject the substance — if it is probable whether or not that an offense is being committed — to the accessory — the time elapsed. In other v/ords, it is to pick the radish by its leaves.
A second factor or element justifies the period elapsed in this case between the day the facts were observed and the day the affidavit was made and the search warrant obtained. The violations of the Bolita Act as well as of the Narcotics Act are very difficult to discover, and the material objects used in those violations — paper lists, pills, etc.— are easy to conceal. Both types of offense give rise to the commission of others. As we stated in People v. Luciano, 83 P.R.R. 551, 564 (1961), the illegal game of bolita causes serious social evils in Puerto Rico. In that game large sums of money are spent which belong almost entirely to the economically weaker groups; it has facilitated the creation and consolidation of professional criminal organizations which plunge from that activity into others which are more dangerous for society, and which constitute an erosive element even for the police force, cf. People v. Adorno, 81 P.R.R. 504 (1959). Because they are so harmful and so hard to discover, society, through the State, uses undercover agents and informers in an effort to discover those offenses. Roviaro v. United States, 353 U.S. 53, 59 (1957); *41Scher v. United States, 305 U.S. 251, 254 (1938); In re Quarles and Butler, 158 U.S. 532 (1895); Vogel v. Gruaz, 110 U.S. 311, 316 (1884).
It is because of the nature of the offenses which we have mentioned that the police carries out the investigation work (which necessarily it is bound to do before filing information) operating by geographical sections. Since it takes time to cover a particular section, and since once the undercover agent or informer is known (as a result of the judicial proceedings) such undercover agents or informers are no longer useful for those purposes, it is necessary and inevitable that an appreciable period of time elapse between the date the undercover agent observes the facts and the date of the affidavit and search.
Since search warrants, once they are obtained, must be executed within 10 days of issuance, it is natural that an appreciable period of time should elapse between the observation of the criminal acts and the agent’s affidavit (made for the purpose of obtaining the search warrant). Because of that 10-day limit the agents cannot submit the matter to the magistrate and, after obtaining the warrant, they must wait until the investigation is complete in order to carry out the search. In a case such as the one at bar the delay was not vicious, but was necessary and socially useful. Already in People v. Super. Ct.; Figueroa, Int., 81 P.R.R. 445, 460 (1959), we had recognized “the need to postpone the detention or arrest so as not to impair a major investigation on clandestine activities such as the sale of beverages, narcotics and game of ‘bolita,’ or on subversive acts.” We reiterated that in People v. Seda, 82 P.R.R. 695, 701 (1961). As stated by the Supreme Court of- the United States, public policy forbids disclosure of undercover agents’ identity unless essential to the accused’s defense at the trial. Scher v. United States, supra at 254. See, also, Segurola v. United States, 16 F.2d 563, 565 (1926); Shore v. United States, 49 F.2d *42519, 522 (1931); McInes v. United States, 62 F.2d 180 (1932). Cf. Roviaro v. United States, supra.
A case similar to the one at bar, decided by the Supreme Court of Illinois in the manner which I propose, is that of People v. Dolgin, 114 N.E.2d 389 (1953). In that case defendant printed counterfeit internal-revenue stamps. As in this case, the police used an undercover agent to obtain the evidence to prosecute him. Several purchases of stamps were made from defendant. Ninety-four days elapsed between the first purchase of counterfeit stamps and the date the affidavit was made. Forty-nine days elapsed between the date of the last purchase and the affidavit. The search warrant was procured, the search was carried out, and the evidence obtained. Defendant moved for suppression of the evidence alleging, as in the case at bar, that the period of time elapsed between the observation of the criminal acts and the making of the affidavit had been unreasonably long.
In the Dolgin case, supra, the court said at p. 393 that a number of cases were cited in which the lapse of time was held to be unreasonable, but that they did not involve continuing offenses as in the case under its consideration. The court said that no hard-and-fast rule could be established on this point, and that the determination on whether or not the date on which the facts were observed was too remote depends upon the circumstances of the particular case. The only bearing that passage of time of itself has upon the question, said the court, is in connection with the problem of whether or not there is probable cause at the time of issuing the search warrant. That is the position which I propose in this opinion. In Dolgin, supra, the court held that in view of the nature of the offense the period of time elapsed between the observation of the facts and the affidavit was not unreasonable and, on the contrary, that there was probable cause for issuing the warrant. See, also, in the *43same sense, People v. Montgomery, 189 N.E.2d 327, 328 (1963).
The federal case of Schoeneman v. United States, 317 F.2d 173, decided last year, cited in the majority opinion, says at p. 177, as the test for the issuance of a valid search warrant, that “probable cause must be determined as of the time the warrant is issued.” That is all that I propose.
As may be seen, my difficulty with the majority opinion lies in that I do not believe that law is made of a number of rules to be mechanically applied, but I believe that it is necessary to arrive at a decision in each case in accordance with its circumstances and merits. As stated by Mr. Justice Holmes in his celebrated dissent in Lochner v. New York, 198 U.S. 45, general propositions do not decide concrete cases.
Noted jurists have criticized the limited syllogistic theory of application of the law. I think that the attitude and approach revealed by this dissenting opinion are consonant with what in my opinion are the best trends in the application of the law. See Castán, Teoría de la Aplicación e Investigación del Derecho 11-23 (1947, Madrid, Editorial Reus). See, also, on the matter, Castán, La Formulación Judicial del Derecho 1-17 (1954, Madrid, Editorial Reus), and what he says on the matter in I-1 Derecho Civil Español, Común y Foral, Parte General 351 (9th ed. 1955).
Of Roscoe Pound, see his “Mechanical Jurisprudence” in 8 Colum. L. Rev. 603 (1908); his “Theory of Judicial Decision” in 36 Harv. L. Rev. 641, 802, and 940 (1923); his “Law Finding Through Experience and Reason” (1960); also, III Jurisprudence 507-13 (1959). Of Puig Brutau, see La Jurisprudencia como Fuente del Derecho 1-55 (Bosch Ed., Barcelona). By Cardozo, his Nature of the Judicial Process 161-62 (1921). By W. Friedman, see his Legal Theory, ch. 31, p. 401 et seq. (4th ed. 1960). In the 3d ed. (1953), it is ch. 21, p. 291 et seq.
*44A rational analysis such as the one I propose and the one made by the Supreme Court of Illinois in the Dolgin case, supra, cannot be substituted by an eulogy of the Bill of Rights. It is not a question of to be or not to be “liberal”; it is a question of making law in the light of the reality.
The Bramble Bush 8, 1951 ed.
People v. Rivera, 79 P.R.R. 697, 706 (1956); Carroll v. United States, 267 U.S. 132 (1925); Steele v. United States, 267 U.S. 498 (1925); Dumbra v. United States, 268 U.S. 435 (1925).
People v. Rivera, supra at 706; Brinegar v. United States, 338 U.S. 160, 175 (1949).
Rugendorf v. United States, 376 U.S. 528, 533 (1964).
Furthermore, the Supreme Court of the United States recently-reiterated that the affidavit need not be based on affiant’s personal observations (as- in the case at bar), but it may be based on hearsay information. Aguilar v. Texas, 378 U.S. 108, decided June 15, 1964. In the same connection, Jones v. United States, 368 U.S. 257 (1960).
It should be noted further that Rule 234 of the Rules of Criminal Procedure, which is the rule which sets forth the grounds for requesting the suppression of evidence obtained in an illegal search, does not contain the ground invoked by defendant in this case.
The Law of Evidence provides that “a thing once proved to exist continues as long as is usual with things of that nature.” 32 L.P.R.A, § 1887(31).