(dissenting):
I dissent.
While I agree with that portion of the majority opinion which concludes that the commander who authorized this search was not disqualified from doing so under our decision in United States v Staggs, 23 USCMA 111, 48 CMR 672 (1974), I would hold that Major Hoff, whose duty it was to act as a neutral and detached magistrate, was not supplied with sufficient information to support the probable cause requirement for granting authorization to conduct that search. United States v Houston, 23 USCMA 200, 48 CMR 952 (1974).
In a case such as this, where probable cause is predicated upon information supplied by an unnamed or unidentified informant, certain well-established guidelines, which were first enunciated by the Supreme Court in Aguilar v Texas, 378 US 108 (1964), and later adopted into military law by this Court in United States v Penman, 16 USCMA 67, 36 CMR 223 (1966), must be followed for scrutinizing such information to determine whether probable cause indeed exists. This test, simply stated, requires that- the information given must set forth facts tending to show that the unnamed informant is (1) competent to make the statements and (2) credible.1 Envisioned as part and parcel of this two-pronged test is the further requirement that the commanding officer himself, as opposed to officials " 'engaged in the often competitive enterprise of fer-retting out crime,’ ” be supplied with sufficient underlying circumstances to enable him to make the independent and informed judgments required under Aguilar. Spinelli v United States, 393 US 410, 415 (1969); United States v Houston, supra; United States v Llano, 23 USCMA 129, 48 CMR 690 (1974).
In view of the fact that Major Hoff was made aware of the fact that the unnamed informant had supplied accurate information concerning marihuana and its use on three prior occasions, I have no difficulty in finding that the second prong of the Aguilar test, namely the informant’s credibility, was here independently established. What particularly concerns me under the facts of this case, however, is the first prong of the Aguilar test which required Major Hoff to independently judge the validity of the informant’s conclusion that the appellant possessed marihuana in the trunk of his car.
According to the trial testimony of Major Hoff, Sergeant Mauriello came to him on the morning of June 21, 1973, and informed him that a confidential informant had related seeing the appellant move a package of marihuana from the front portion of his vehicle to the trunk of the car. Although the informant had allegedly told Sergeant Mau-riello that he believed the substance in the enclosed package was marihuana because he heard the accused identify it to some other unnamed and unidentified people who were allegedly present at the scene, Sergeant Mauriello apparently *286never made this fact known to Major Hoff when requesting the authorization to search. The following questions, asked of Major Hoff on cross-examination, well illustrate the very limited nature of the underlying circumstances which Sergeant Mauriello provided and Major Hoff knew in this regard:
Q. Did Sergeant Mauriello, did he tell you who his informant was?
A. No, he did not.
Q. Did he tell you where the informant had been whenever he obtained this information that Sergeant Guer-ette had the marijuana?
A. I believe he stated that he, that the informant had observed this moving the contraband while his car was parked in the squadron parking area in front' of the admin area.
Q. Did he tell you from where he had observed this?
A. No, he did not.
Q. Did he tell you what time of day or night it was?
A. No.
Q. Did he tell you how the informant knew that the bag contained marijuana?
A. No, he did not.
Q. So you were not aware, at that time, the informant had allegedly seen what he said he saw, is that correct?
A. Yes, that’s correct.
Q. Do you know what day it was?
A. I do now, I didn’t at the time.
Although Major Hoff, in later portions of his testimony, was able to narrow the time frame in which the confidential informant allegedly informed Sergeant Mauriello of his purported observations to sometime between June 19 and 21, the crucial fact remains that Major Hoff was never informed nor made aware of any of the underlying circumstances whereby the informant had concluded that contraband marihuana would be at the place to be searched.
The result reached by my brothers tends to overlook the significance attached to this first prong of the Aguilar test. Relying on the Supreme Court’s decision in United States v Harris, 403 US 573 (1971), they apparently now take the position that since Major Hoff was merely advised that the informant saw the appellant move marihuana to the trunk of his car, he need not be advised of any of the underlying circumstances necessary to enable him to judge the validity of that bare conclusion. While the fact that Major Hoff was apparently made aware that the informant was purporting to speak from firsthand observation, a fact recognized by the Supreme Court in Harris as lending support for crediting such information, I do not believe that Harris stands for the proposition that a statement of firsthand observation alone is a substitute for evaluating the worth of an informant’s statements. United States v Acosta, 501 F2d 1330 (5th Cir 1974). When a majority of the Supreme Court concluded in Harris that certain corroborative details might be substituted to establish the credibility of a confidential informant and the reliability of the information so supplied, they did not relax the standards for establishing the reliability determination. The factor of personal observation was there combined with three others, the cumulative effect of which a majority of the Supreme Court held adequate to establish the competency or reliability of the supplied information under the first prong of the Aguilar test. In this case, however, neither such a cumulative effect nor any independent evaluation of the underlying circumstances is present to support probable cause.
Notwithstanding that probable cause to search the appellant might otherwise have been established under the facts of this case had Major Hoff been sufficiently informed of the underlying circumstances so as to enable him to make an independent evaluation of the trustworthiness of the informant’s observation, the conclusion is inescapable that he failed to fulfill the duty imposed upon him by law to personally evaluate the competency of the unnamed informant’s statements before utilizing that information in a probable cause determination. United States v Houston, supra; United States v Llano, supra; United States v Hennig, 22 USCMA 377, 47 CMR 229 (1973) (Duncan, J., dissenting).
I would accordingly reverse the decision of the US Air Force Court of Military Review and order the findings of guilty and the sentence set aside and dismissed.
See also paragraph 52, Manual for Courts-Martial, United States, 1969 (Rev.).