(dissenting):
The decisions of the Supreme Court of the United States seldom involve considerations that must be faced by military commanders in determining the existence of probable cause to search the effects of a person in their organization. This 'Court nonetheless has consistently applied those decisions in this area. Under the Supreme Court’s standards in those eases, I am unable to conclude that probable cause existed to authorize a search of the accused’s room and the seizure of the amplifier.
Information from an unknown source or a source uncorroborated as to its reliability is insufficient to establish probable cause to search. Spinelli v United States, 393 US 410, 21 L Ed 2d 637, 89 S Ct 584 (1969); Thompson v White, 406 2d 1176 (CA 5th Cir) (1969); Bailey v United States, 386 F2d 1 (CA 5th Cir) (1967); Potter v United States, 362 F2d 493 (CA 5th Cir) (1966). Spinelli, supra, was not overruled by United States v Harris, 403 US 573, 29 L Ed 2d 723, 91 S Ct 2075 (1971), despite the clear invitation by two of the Justices that this be done. Harris involved the central issue of a “reason for crediting the [informant’s] out-of-court statement.” Id., at page 584. Otherwise, probable cause was not established.
Jackson, conceded by the Government to occupy a position analogous to that of a law enforcement officer, reported to Captain Bell detailed information, all of which came from an unidentified informant. Nothing in the record establishes the informant’s credibility, beyond the bare recital of the information presented. My understanding is that the reliability which must be established is not that of Jackson but of his unidentified informant. In any event, the information he furnished must be corroborated to some extent. See Aguilar v Texas, 378 US 108, 12 L Ed 2d 723, 84 S Ct 1509 (1964). Indeed, the opinion in Harris, supra, emphasized that “a bare statement by an affiant that he believed the informant to be truthful” would not suffice as a factual basis for crediting the report of an unnamed informant. 403 US, at page 579. In the present case, we are left with nothing more than an unknown person’s report that Jackson’s amplifier was to be found in the accused’s room. In my view, this is not enough.
I would reverse the decision of the Court of Military Review, disapprove the findings of guilty of larceny, and remand the record of trial to the Court of Military Review for reassessment of the sentence based on the remaining findings of guilty.