(dissenting):
I would hold that the authorization to search given by Captain Mansfield was not based upon probable cause, thereby rendering the fruits of the search inadmissible. See United States v Alston, 20 USCMA 581, 44 CMR 11 (1971); United States v Martinez, 16 USCMA 40, 36 CMR 196 (1966).
In general, there is no requirement that the facts relied on by the commanding officer in authorizing a search be the result of his personal knowledge or observation. A reasonable belief may be based on hearsay information which the authority requesting permission to search has received from a third party, if (1) the underlying circumstances from which the authority requesting permission to search concluded that the third party, who is the source of his information and whose identity need not be disclosed, was credible, or his information reliable, and (2) the officer authorizing the search has been apprised of the underlying circumstances from which the third party concluded the items in question were where he claimed they were. This two-pronged criteria was first enunciated by the Supreme Court in Aguilar v Texas, 378 US 108 (1964), and followed by this Court in United States v Penman, 16 USCMA 67, 36 CMR 223 (1966). See also paragraph 52, Manual for Courts-Martial, United States, 1969 (Revised edition).
Even if I assume that the record did in fact disclose the reliability of the informer, the second prong of the Aguilar-Manual test was not sufficiently shown. It is noted again that this requirement dictates that sufficient underlying circumstances be made available to the commanding officer to enable him to make the independent and informed judgment required.
Captain Mansfield testified*.
Q. [Military Judge]. . . . Now, I’d like you to think back as to the information which was relayed to you by the PMI with whom you dealt' on that evening and tell me what, if any, details they supplied to you originating from this confidential informant as to the basis of his conclusion that the accused was in possession? What I mean by that is this: Did they simply tell you that the informant^ said he was in possession or did they tell you why the informant knew this, that is, that he had seen the purchase, that he had participated in the purchase if there was one, where it was, why the informant knew if he did that Hennig was in possession? Do you understand my question?
A. Yes, sir. Hartman did not — I cannot remember Hartman actually telling me that the informer had actually seen the narcotics. He knew it was there from conversation with — the informer knew it was there from conversation with the other two individuals that evening.
Q. Were you told what, if anything, had transpired which led him to the conclusion that the accused was in possession.
*382A. No, sir. [Emphasis added.]
Earlier Captain Mansfield had testified on cross-examination that he could not remember Hartman indicating to him that the informant had ever seen appellant or the other suspect with the contraband. He was not sure where the informant had seen appellant that evening, and he was not told what the circumstances of the alleged meeting had been.
In sum, the informer first declared that either the appellant or Kutenow possessed the heroin, a fact he learned as a result of a conversation with the pair. It next appears that the informer was instructed to contact each of the men separately and report back. His report then was that Hennig was the one, but there was no basis stated for this conclusion. In my opinion, if there were a basis for the informer’s statement that the appellant possessed heroin, Captain Mansfield did not state that it was disclosed to him and it was not spread upon the record of trial. From these facts I do not believe that Mansfield could fairly infer that "the informant had either seen the heroin in the accused’s actual possession, or he had been told that the accused had it.” What the facts in this case ultimately reduce to is a situation wherein an affiant avers to a magistrate that a reliable informant stated that he had conversed with X and Y, that X and Y admitted they were in the possession of heroin, and that the informant subsequently approached X and Y and learned Y was the one actually in possession of the contraband. None of the underlying facts through which the informant learned that it was Y who had the heroin were given to the magistrate. It remains pure speculation whether the informant actually saw the heroin, or whether he just surmised such was so because X declined to admit that he had it himself, or whether Y might have bluffed possession while awaiting the tender of the purchase price. Thus, Captain Mansfield’s decision to authorize the search was not based on knowledge of the underlying circumstances indicative of the manner in which the informant garnered the basis for his conclusion that the appellant was in possession of drugs.
Furthermore, I find the Government unable to avail themselves of any of the principles set out in United States v Spinelli, 393 US 410 (1969), through the utilization of any competent corroborative evidence of record that might deem the information conveyed to the authorizing officer sufficient to establish probable cause. The record reveals only one instance of additional information possibly available for consideration by the authorizing officer.
Captain Mansfield testified that he had received one prior report on appellant that he readily characterized as "unproven suspicion.”
Q [Defense Counsel]. You say you suspected Hennig. What was your basis for this?
A. On at least one occasion in the past, a Staff Sergeant Oliver came down to my office and told me that he had just observed Hennig and some other people possibly about to shoot up with Heroin in the latrine.
Q. Possibly?
A. Well, it wasn’t just exactly clear who was going to do the shooting. Hennig had a syringe in his hand. When I went up there with Oliver, there was nothing, absolutely nothing.
Appellant and the others involved were searched immediately following this incident and no narcotics or paraphernalia were uncovered. During this search appellant denied using heroin although admitting he had used drugs in the past. As for probative value, there is no indication of when this alleged incident occurred and the fact that Captain Mansfield had been appellant’s company commander for 14 months. Thus, appellant’s " 'admitted past drug use’ ” may easily have been more than a year old at the time of the incident in question. The characterization of this evidence as "mere suspicion” and the absence of any time reference surely renders the incident even more " 'bald and unilluminating’” than the FBI surveillance considered in United States v Spinelli, supra.