dissenting:
I am unable to find that probable 'cause existed in the record of trial to warrant the appellant’s arrest in this case. In my view, the evidence of record only substantiates the appellant’s association with the Screens during the police surveillance of the Screen premises. Such association has not, in the past, been a basis for search, seizure, or arrest by police officers.1
I do not disagree with the basic law of arrest and the definitions of probable cause as set forth in the majority opinion. I do disagree with the views of the majority concerning the facts of this case and their interpretation of the impact of the opinion in United States v. Harris2 on prior precedent concerning police officer’s use of hearsay information provided by informants.
The issue in this case was raised by the trial defense counsel’s objection to the Government’s efforts to introduce into evidence the amphetamines seized from the person of the appellant. At the evidentiary hearing on the foregoing motion, the prosecution established through the testimony of Special Agent James Crimmins, United States Army Criminal Investigation Command (CID), that he was in charge of a 24 hour photo surveillance of the apartment of one Sergeant Screen in Viernheim, Germany. Crimmins stated that “we” received information previously that Private Fisher was dealing in controlled substances in conjunction with Sergeant Screen.
During the surveillance, Fisher was seen coming and going from the apartment on numerous occasions. Crimmins further stated that “we” had received information “from our informant working that case” that he (the informer) had negotiated with Private Fisher and Sergeant Screen’s wife for the purchase of a quantity of methamphetamine. The prosecutor asked Agent Crimmins what additional information he possessed concerning the appellant. He reiterated that the “only previous information that was related to me by investigators that had previous knowledge or that they had acquired through other informants that Private Fisher was in fact dealing.”3
*871Between 2:00 and 2:30 P.M. in the afternoon of 30 June, the agents entered the Screen apartment pursuant to a search warrant, and seized a quantity of drugs and money. Agent Crimmins directed another agent, a Sergeant Williamson, to locate the appellant and arrest him for conspiracy. Williamson carried out his orders, located the appellant at his barracks, and effected the arrest. A search following the arrest produced the amphetamines which were the subject of the charges against the appellant.
No other evidence was offered to support the appellant’s arrest nor were any other facts shown with regard to the activities of Sergeant Screen and his wife.
Military law in the areas of probable cause to arrest and search and seizure has generally followed the opinions of the Supreme Court of the United States.4
Paragraph 152 of the Manual5 concerning probable cause and the use of hearsay information states “the authority ordering the search has been apprised of some of the underlying circumstances from which the informant concluded that “the items in question were where he claimed they were and some of the underlying circumstances from which the authority requesting permission to search concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.” The foregoing language is reported virtually verbatim from Aguilar v. Texas.6
An examination of the principal cases concerning the use of informer’s hearsay information in probable cause determinations to arrest or to search has produced at best, what might be termed “a sea of shifting sands.” 7
In Nathanson, the Supreme Court held that an affidavit which only set forth statements of reputation, suspicion and belief without supporting and corroborating facts was insufficient to show probable cause to search.
In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Court held that an affidavit that set forth hearsay reports of reliable information of selling heroin was sufficiently corroborated where the suspects were well known to the police as heroin users. Their use of drugs had been previously admitted to police and other information known to police corroborated the hearsay information provided by the informants whose reliability had been ascertained on previous occasions. It is noted the Court’s determination of probable cause in this case was based upon a “substantial basis” for crediting the hearsay report.
In Draper, a police officer’s probable cause to arrest was sustained where the informant’s information concerning the location of the suspect at a certain time, his appearance, clothing, physical description and peculiarity of his method of walking was corroborated by police officers prior to his arrest. Again, corroboration of the reported information provided a “substantial basis” for crediting the reliability of the hearsay information.
In 1964, the Supreme Court enunciated the well known “Aguilar two-prong test” which as noted, is set forth in paragraph 152 of the Manual. The affidavit there set forth reliable information from a credible person but as none of the underlying circumstances were set forth, the Court ruled *872that the affidavit for a search warrant was a mere affirmation on suspicion and belief.8
In Spinelli v. United States, supra, a case similar to that which is before us, the Supreme Court again struck down a search warrant in which hearsay information was reported that Spinelli was operating a gambling handbook and accepting wagers from an apartment. Spinelli was seen entering the premises on numerous occasions and federal officers ascertained that the apartment contained two telephones and were cognizant of Spinelli’s reputation as a gambler.
The Court held that Spinelli’s entrance in the apartment and the fact that two telephones were located in the apartment were “innocent seeming activity.” The federal officers’ knowledge of Spinelli’s reputation was considered “no more than a bold and unilluminating assertion of suspicion” and that the affidavit failed to pass either prong of Aguilar, supra, as the informant did not disclose how he gained the information he reported.
Finally, in Harris, the Supreme Court evidenced its dissatisfaction with the rule enunciated in Aguilar and the results reached in Spinelli. There, federal officers received a search warrant which set forth that Harris had a known reputation of over four years standing as a trafficker in non-tax paid distilled spirits. The officers had numerous reports of Harris’ illegal activities, a constable located a cache of illicit whiskey on premises under Harris’ control and a hearsay report from a “prudent” person who had purchased whiskey from Harris at the residence in question over a two-year period and most recently as within the past two weeks. The Court held that there was a “substantial basis” for crediting the hearsay report of the informant as (1) the hearsay statement of the informant was a declaration against the informant’s penal interest and entitled to credibility; (2) the federal officer’s knowledge of the reputation of Harris added credibility to the hearsay report and the constable’s location of the illicit whiskey under Harris’ control all combined to provide reliability and corroboration.
Military law appears to follow the same uncertainty as the decisions of the Supreme Court.9
Here, we do not have the benefit of a magistrate passing judgment on Agent Crimmins’ determination of probable cause for arrest.10
In this case, we have one, two, or possibly three informants providing information to the CID. Crimmins testified that (1) they (CID) had received previous reports concerning the appellant’s “dealing”; (2) CID had received a report that the appellant and Sergeant Screen were dealing in prohibited substances; and (3) an informant had advised that he (the informant) had negotiated the purchase of some methamphetamine.
In each of the foregoing instances, no reliability of the informants or their information is established on record nor is the date, time, or place established as when these events occurred.
As noted, Agent Crimmins himself was unaware of the actual source of the information. He believed that it was received from one of several sources.
The CID did establish that the appellant had been present at the Screens’ apartment on “numerous” occasions and that illegal substances were found in that apartment. No corroboration is shown with regard to *873the appellant’s alleged acts other than mere association with Screens. I view the foregoing as no more than an innocent seeming activity which in and of itself provides no more than another example of a “bold and unilluminating assertion of suspicion.” Even coupled with the knowledge that Screens were selling illegal substances, those facts do not make the appellant a seller of illegal substances in the eyes of a reasonably prudent man.
Further, I do not believe that we can ascribe credibility to the informant who allegedly negotiated a purchase of methamphetamine from the appellant and Mrs. Screen when no showing is made as to date, time, and place of that alleged transaction nor any corroboration of those facts shown from any other evidentiary source. Also, I do not believe we can credit the informant’s information as describing a declaration against his penal interest as was done in United States v. Harris, supra, when no basis is shown as to why the informant made such a report. He may well have been paid for his activities or had some other police necessitated basis for making such a report if there was one.
Accordingly, I find there is no “substantial basis” for crediting the hearsay information in this case whether it is considered under Jones v. United States, supra; Aguilar v. Texas, supra; Spinelli v. United States, supra; or United States v. Harris, supra. I would find there was no probable cause to believe a crime was committed much less that the appellant committed it. Accordingly, there was no probable cause to arrest the appellant and the subsequent search and seizure was, in my view, illegal. I respectfully dissent.
. See United States v. Pope, 3 M.J. 1037 (A.F.C.M.R.1977), and the cases cited therein.
. 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
. It is obvious that Agent Crimmins was not certain of his source. He apparently not only did not know whether the information regarding appellant’s previous activities had been acquired through informants of questionable veracity or whether the agents had acquired some information concerning the appellant. In any case, if the information was supplied by agents there must not have been much information available or the CID would have taken adequate efforts to document the appellant’s prior unlawful acts if, in fact, there were some. It does not appear that the appellant had an established reputation as a dealer or possessor of illegal drug substances. In any event, his state*871ment leaves the record subject to the necessary inferences that the information may have been the product of mere suspicion or gossip.
. See United States v. Kinane, 1 M.J. 309 (C.M.A. 1976).
. Manual for Courts-Martial, United States, 1969 (Revised edition).
. 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).
. See footnote 6 for citation.
. See United States v. Scarborough, 23 U.S.C.M.A. 51, 48 C.M.R. 522 (1974); United States v. Smallwood, 22 U.S.C.M.A. 40, 46 C.M.R. 40 (1972); United States v. Gibbins, 21 U.S.C.M.A. 556, 45 C.M.R. 330 (1972); United States v. Lidie, 21 U.S.C.M.A. 455, 45 C.M.R. 229 (1972); United States v. Weshenfelder, 20 U.S.C.M.A. 416, 43 C.M.R. 256 (1971); United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970), among others.
. See United States v. Penman, 16 U.S.C.M.A. 67, 36 C.M.R. 223 (1966). The case in issue provides a cardinal example of inferences being drawn, not by a neutral and detached magistrate, but by a police officer engaged in the often competitive enterprise of ferreting out crime.