(dissenting):
I dissent.
Regretfully, I must disassociate myself from the rationale of the principal opinion for, as I analyze its development, it approves the denial to the accused of access to the identity of Agent Platt’s informant by the simple process of according credibility to Platt’s story. In view of the fact that the only manner by which Platt’s testimony could be attacked was by disclosure of the informant’s name, I am inclined to conclude that any balancing of the Government’s interest in protecting the source of its information against the accused’s entitlement to prepare his defense is overcome in the latter’s favor.
The foundation of the Chief Judge’s development of the situation before us is the preliminary conclusion that the search of Sergeant Ness’ automobile can be justified only as one made incident to a lawful arrest or as one authorized by Colonel Bland, accused’s commanding officer. I unhesitatingly join in this portion of his opinion, for I am of the view that there can be no lawful delegation of the authority to order a search and seizure. The power to authorize such acts is purely judicial *26and must, therefore, be personally exercised by the commander, the Manual for Courts-Martial, United States, 1951, paragraph 152, to the contrary notwithstanding. United States v Allen, 5 USCMA 626, 18 CMR 250; cf. United States v Doyle, 1 USCMA 545, 4 CMR 187. As was stated in Johnson v United States, 333 US 10, 92 L ed 436, 68 S Ct 367 (1948), at page 13:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”
Having concluded that the search may be regarded either as being incident to an arrest or authorized by the commanding officer, the Chief Judge next opines that probable cause must be shown in either instance. Again, I am in agreement with his adherence to the principle we so clearly enunciated in United States v Brown, 10 USCMA 482, 28 CMR 48, and I do not dispute the proposition that this necessary predicate for authority to effect a lawful arrest or a lawful search may be found in hearsay declarations to a police officer by a reliable informant. Draper v United States, 358 US 307, 3 L ed 2d 327, 79 S Ct 329 (1959); Jones v United States, 362 US 257, 4 L ed 2d 697, 80 S Ct 725 (1960).
The point at which I part company with my brothers is in their ultimate conclusion that the informant’s identity need not have been disclosed because, insofar as possible, Agent Platt later established the authenticity of his communication and ordered accused’s apprehension only after so satisfying himself. This simply puts the cart before the horse and misapprehends the dilemma of the accused at the trial.
First, I believe it quite clear that no probable cause to arrest is shown by the departure from an air base of a properly licensed and operated automobile, which is later entered by a known black marketeer and proceeds in an orderly fashion on the public highway toward Tokyo. Indeed, such facts can hardly be said to arouse more than a faint suspicion. In no event could they amount to circumstances justifying a prudent man in concluding that an offense has been or is being committed. Henry v United States, 361 US 98, 4 L ed 2d 134, 80 S Ct 168 (1959); United States v Brown, supra. Yet, these are the only events which Agent Platt observed and, to establish probable cause, we must turn again to the informant’s tale which prophesied the foregoing matters and added the essential element that the accused’s car contained the stolen items. In short, Agent Platt’s direct observation of the recited occurrences is valuable only in that it corroborated the information which he had received and upon which he was unwilling to act without further proof of authenticity.
That brings us precisely to the point which the defense counsel was making. He desired the identity of the informant in order to be able to contest Agent Platt’s credibility. He suggested, and I agree, that it was impossible to tell whether the search was actually based on nothing more than seeing Arakawa enter accused’s car, with the agent and the other law enforcement personnel later concocting the story of the informant in order to justify the search. And the only way to investigate and possibly to disprove the agent’s story was by ascertaining the informant’s identity, producing him as a witness, and having him testify to that effect, True, he may not have *27done so, but the defense was entitled on cross-examination so to develop a lead to other evidence. Alford v United States, 282 US 687, 75 L ed 624, 51 S Ct 218 (1931). “The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” Roviaro v United States, 353 US 53, 64, 1 L ed 2d 639, 647, 77 S Ct 623, 629 (1957).
Indeed, the Supreme Court noted in the Roviaro case, at page 60:
“. . . Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.” [Emphasis supplied.]
And in Scher v United States, 305 US 251, 83 L ed 151, 59 S Ct 174 (1938), the same Court remarked, at page 254:
“Moreover, as often pointed out, public policy forbids disclosure of an informer’s identity unless essential to the defense as, for example, where this turns upon an officer’s good faith.” [Emphasis supplied.]
In United States v Keown, 19 F Supp 639 (WD Ky) (1937), involving facts surprisingly similar to these before us, Judge Hamilton concluded it was prejudicial error to refuse to disclose the identity of an informant who furnished confidential information leading in part to a search of accused’s vehicle. There, the defendant was known to the police officer as a bootlegger. The officer received confidential information that Keown would transport, on a date certain and in a described automobile, illicit whiskey. Defendant’s car, heavily laden, was observed and pursued on the proper day. It was compelled to stop, and a search disclosed the presence of 165 gallons of whiskey. The officer refused to disclose the name of his informant. In granting a motion for new trial, it was stated, at page 646:
“When the government calls a witness whose testimony is based in part on that of an informer, it subjects the witness to cross-examination and the informer to whatever peril may arise out of such cross-examination. It is a sound rule to keep secret information furnished to the state of violations of its laws, but this commendable public policy must yield to a higher, or at least an equal, right accorded to an accused to have a court investigate the facts material to his offense in a criminal prosecution, and sometimes the departments of government will be put to a choice of either foregoing a criminal prosecution or disclosing the source of material information necessary to the conduct of orderly judicial procedure.” [Emphasis supplied.]
See also Wilson v United States, 59 F2d 390 (CA 3d Cir) (1932); United States v Li Fat Tong, 152 F2d 650 (CA 2d Cir) (1945); and Costello v United States, 298 F2d 99 (CA 9th Cir) (1962).
Nor do the authorities upon which reliance is placed in the principal opinion support the proposition that an informant’s identity need not be disclosed when the fact of his existence is disputed, if the proof otherwise establishes that part of his purported information is accurate. Draper v United States, supra, and Jones v United States, supra, involved the question whether probable cause to arrest or to issue a search warrant could be based upon hearsay information supplied by a reliable informant. In both instances, the Court concluded that such was sufficient to establish probable cause. In *28neither case was any question concerning the informer privilege raised or discussed. Indeed, in Draper, supra, the informer was dead, and his name was repeatedly spread upon the record. And in Jones, supra, while the name was not disclosed, there is no mention in the opinion of any attempt by the defense to secure the identity or to argue that accused had need of this information. The Court simply does not discuss the point. In short, the cases do not permit the privilege to be upheld because we believe it “inconceivable that Platt could have created ‘out of thin air’ and related to Major Scott the story of the proposed meeting.” As indicated above, they support the opposite conclusion, i.e., that every accused is entitled to the opportunity, whether or not it subsequently proves successful, to show that the case against him was ephemeral.
“Though the police are honest and their aims worthy, history shows they are not appropriate guardians of the privacy which the Fourth Amendment protects.” Jones v United States, supra, dissenting opinion of Mr. Justice Douglas, at page 273. I fear this Court’s decision today confides that trust to them, for it indulges in an irrebuttable presumption of their credibility, cleverly erected upon post hoc considerations which bear, not at all upon the question whether there was ever an informer in this case.
I would reverse the decision of the board of review and return the record of trial to The Judge Advocate General of the Air Force, with directions either to hold a rehearing on the affected charges or to reassess the sentence on the remaining specifications of larceny.