(concurring in part and dissenting in part):
While I agree that the search of the person of the appellant was legally sound, I believe that my brothers err in their decision that the results of the search of Smallwood’s living quarters were admissible in evidence. See Spinelli v United States, 393 US 410, 21 L Ed 2d 637, 89 S Ct 584 (1969); United States v Gibbins, 21 USCMA 556, 45 CMR 330 (1972).
The record reflects that Captain Meredith authorized the search of the appellant’s living quarters on two grounds: (1) The fact that the appellant reportedly had recently been observed, in a working area, smoking a marihuana cigarette and, upon a later search of his person, was found to be in possession of a substance believed to be marihuana; and (2) the reports of an informant, who had furnished reliable information in the past, that Smallwood was a user of marihuana, was reselling marihuana and drugs in the company area, and “in fact” kept marihuana and drugs in his room.
Personal possession of contraband material at a place away from home does not, standing alone, provide probable cause to search the possessor’s living quarters. United States v Gibbins, supra, and cases cited at page 559. Information that the possessor was also a user and seller of contraband, “unaccompanied by any . . . facts showing the means by which the informants-gained the knowledge about the illegal activity” (Gibbins, supra, at page 559), will not provide the missing ingredient. What then of the further information that Smallwood was “in fact” keeping marihuana and drugs in his room?
In Spinelli, supra, an agent of the Federal Bureau of Investigation averred, in part, in an application for a search warrant, that “the FBI ‘has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting *44wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.”’ (Id., 393 US, at page 414). In addition, the application disclosed that surveillance of Spinelli, on a number of days, disclosed his travel from Illinois into St. Louis, Missouri, and the parking of his car in the lot used by the residents of the apartment house in St. Louis in which the telephones were installed; Spinelli’s entry into the apartment of the building where the phones were located; and that Spinelli was known to the agent and- to Federal and local law enforcement agents as a bookmaker and gambler and an associate of bookmakers and gamblers.
In holding that the search and seizure in Spinelli was constitutionally infirm, the court stated:
“. . . The tip [from the confidential reliable informant] does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v United States, 381 US 214, 14 L Ed 2d 345, 85 S Ct 1365 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
“We conclude, then, that in the present case the informant’s tip— even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause. This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed [in the apartment].” [Id., 393 US, at pages 416, 418.]
See also United States v Lidle, 21 USCMA 455, 458, 45 CMR 229 (1972); United States v Clifford, 19 USCMA 391, 41 CMR 391 (1970). Cf. McCray v Illinois, 386 US 300, 304, 18 L Ed 2d 62, 67, 87 S Ct 1056, rehearing denied, 386 US 1042, 18 L Ed 2d 616, 87 S Ct 1474 (1967); United States v Bunch, 19 USCMA 309, 41 CMR 309 (1970).
In United States v Harris, 403 US 573, 577, 29 L Ed 2d 723, 91 S Ct 2075 (1971), the Supreme Court distinguishes Spinelli; however, the basis for the distinction was not based on a retreat from the law of the Spinelli case requiring that the magistrate be furnished facts from which he could decide whether the informant’s information had been gained in a reliable manner. Looking to the Harris case, it is clear that the informant related personal knowledge of the illegal activity since he had purchased illicit whiskey at the residence searched. Moreover, in Harris, the case Jones v United States, 362 US 257, 4 L Ed 2d 697, 80 S Ct 725, 78 ALR2d 233 (1960), is referred to as follows:
“The substance of the tip, held sufficient in Jones, closely parallels that here held insufficient by the Court of Appeals. Both recount personal and recent observations by an unidentified informant of criminal activity, factors showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information. Spinelli, supra, at 416, *4521 L Ed 2d at 643.” lid., 403 US, at pages 578, 579.] [Emphasis supplied.]
In distinguishing Spinelli, rtfis noted:
“Aguilar cannot be read as questioning the ‘substantial basis’ approach of Jones. And unless Jones has somehow, without acknowledgment, been overruled by Spinelli, there would be no basis whatever for a holding that the affidavit in the present case is wanting. The affidavit in the present case, like that in Jones, contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant — a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information.. Both recite prior events within the affiant’s own knowledge — the needle marks in Jones and Constable Johnson’s prior seizure in the present case — indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was ‘known ... as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.’ Spinelli, supra, at 422, 21 L Ed 2d at 647.” [United States v Harris, 403 US, at page 581.] [Emphasis supplied.]
In Harris there was no prior history of a relationship between the law enforcement official and the informant, and it was this factor that raised the reliability problem. In the case before us there is evidence of prior reliability of the informant. However, as I understand Harris and Spinelli, in order to provide a magistrate with facts from which he can find a “ ‘substantial basis’ ” for crediting the information, he must be advised as to how the informant gained his information. Furthermore, the fashion in which an informer has gained his information may support a finding that he is reliable even though the person requesting authority to search has not had a prior relation with the informant.
Since, in the case at bar, the statement of the informant, albeit reliable, that the appellant “in fact” kept marihuana and drugs in his room, was not supported in any way by showing how he gained the knowledge, the officer authorizing the search did not have a “ ‘substantial basis’ ” for finding the information was gained in a reliable manner. I would hold that the authorization to search the living quarters was improperly authorized and the fruits thereof inadmissible in evidence. United States v Harris; Spinelli v United States; and United States v Gibbins, all supra.