concurring in part and dissenting in part on denial of petition for rehearing.
I respectfully dissent from the majority’s reversal of the convictions in this case and its application of rigid and unsound propositions of law which produced that reversal. The majority has held that evidence obtained by the Government pursuant to “in-dicia” search warrants was obtained without probable cause because the affidavits did not allege that the underlying offense— association with an unlawful RICO enterprise and participation in the conduct of its affairs through a pattern of racketeering— was “wholly” illegal.
The magistrate, applying a straight-forward common sense analysis, found probable cause. The majority, after making a “de novo” review pursuant to principles stemming from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), found absence of probable cause to search. That to me seems a denial of the deference which is due to the magistrate’s finding as required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,21 L.Ed.2d 637 (1969). It also misreads, or ignores, the directions given only a few months ago in Illinois v. Gates, -- U.S. --, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
I disagree with these conclusions reached by the majority: (1) that in a RICO case which charges the defendants with association with an enterprise and participating in the conduct of its affairs through a pattern of racketeering, a warrant cannot issue to search out indicia of the basic association unless the affidavits allege that the enterprise is “wholly” illegal; (2) that a magistrate’s finding of probable cause in such a case is subject to “de novo” review by the courts of appeals; and (3) that the indicia search warrants in this case were lacking in probable cause because they showed no “nexus” to the crime and that nexus could not be supplied by notice of contemporaneous indictment of the Grand Jury.
In Gates, the United States Supreme Court has clearly told us that “after the fact scrutiny by courts of the sufficiency of an affidavit [for search warrants] should not take the form of de novo review,” 103 S.Ct. at 2331; and that the magistrate’s task:
is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
103 S.Ct. at 2332.
The majority has given scant heed to this ruling in setting aside the warrants, verdicts and judgments of this long and difficult trial.
DISCUSSION
In Gates, Justice Rehnquist wrote that “[t]he strictures that inevitably accompany the ‘two-pronged test’ [of Spinelli] cannot avoid seriously impeding the task of law enforcement, * * * ” Gates, 103 S.Ct. at 2331. The Gates court applied a “totality of circumstances” test in place of the stricter “two-prong” analysis which had prevailed for many years, and the Court held that the Spinelli approach, which had come to be treated as untouchable ritual. Probable cause must still be shown, but that conclusion is properly drawn from the whole picture. The Constitution only requires reasoned judgment, supported by facts which will answer *801103 S.Ct. at 2328. The court held that only within the limits of that inquiry should the magistrate’s conclusion be reviewed.
*800“the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.”
*801For those so long accustomed to traditional views and reviews of probable cause, Gates’ new approach may not sit too well. Such persons may, as has the majority, prefer to stake out a different ground. The majority suggests that the standard of review set forth in Gates is not really applicable except in the context of reviewing probable cause where it is based on an anonymous informant’s tip. Majority Op. at 793. But the decision is not so narrow. Without further discussion, the majority has announced and implemented its determination to continue applying what is transparently still a de novo review of probable cause findings.
But Illinois v. Gates has held that we should not do that:
* * * We conclude that it' is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. [Citations omitted]. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. [Citation omitted]. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spi-nelli.
Gates, 103 S.Ct. at 2332.
Instead of applying the nontechnical approach set forth above, the majority has in fact created its own additional technicality which, if allowed to stand, will continue to complicate the task of preparing such warrants which are often issued “on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.” Id., 103 S.Ct. at 2330-2331.
The majority seems to proceed as if a RICO case is constitutionally suspect. It holds that it is not enough that the “totality of circumstances” justify the magistrate’s common-sense decision that there is a “fair probability” that what is sought “will be found in a particular place.” Instead it insists that the affidavit must independently show probable cause that the “subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering activity.” Majority Op. at 794. Support for this conclusion is claimed to arise from Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), a decision which actually disapproved earlier doctrine to the effect that a warrant could not issue to search for “mere evidence.” I do not believe Warden comes close to justifying what the majority has done here.
In Warden, a man of Hayden’s description, wearing a cap, and fleeing from a robbery, was seen entering a house occupied by Hayden’s mother. About five minutes later, under what the Supreme Court termed “the exigencies of the situation,” but without warrant, the police entered the house looking for him. The mother “offered no objection” to their request to search the house. Hayden was found feigning sleep. In the meanwhile, another officer, presumably still looking for the suspect, heard running water in an adjoining bathroom. He looked in and found weapons. Still another officer, searching the cellar, found clothing similar to that worn by the robber. Also, ammunition, a shotgun and the cap were found under the mattress in Hayden’s room. At Hayden’s trial for robbery in state court, all the evidence was admitted and he was convicted.
*802Hayden’s petition for habeas corpus was dismissed by the district court. There was little dispute as to the propriety of the seizure of weapons, but the issue was whether introduction of “mere evidence”— clothing — was proper under Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921), which had held to the contrary. The Court of Appeals for the Fourth Circuit had felt bound by Gouled and so reversed the district court. The Supreme Court granted certiorari.
The Supreme Court reversed the Court of Appeals (the Chief Justice and Justices Douglas and Fortas dissenting), holding that the Fourth Amendment did not distinguish “mere evidence” from tangible evidence. Justice Brennan, for the majority, explained that a major concern of the Amendment is to protect against invasion of the privacy of the person, and of his home, papers, and effects, unless there existed proper reason (probable cause) for doing so. Therefore, in a criminal case, the justification for search must appear; there must be a connection or “nexus” between the item to be seized and criminal behavior:
The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for “mere evidence” or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. * * * But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.
Id. 387 U.S. at 307, 87 S.Ct. at 1650 (Citation omitted) (Emphasis supplied).
There is nothing esoteric or abstruse about “nexus” — it simply means a tie or link; and the link is to an official proceeding important enough to justify a warrant’s invasion of privacy, almost always reserved for criminal proceedings. The search must contemporaneously be shown to be “linked” to that justification — that it is related to a charge of wrongdoing. The “nexus” in Warden was supplied by the common-sense conclusion of the policeman who came across the clothing that “the items would aid in the identification of the culprit.” Nothing in Warden compels or even suggests what the magistrate should do other than reach a common-sense conclusion on the facts and decide whether they demonstrate a rational connection (i.e., linkage) between the offenses involved and the evidence sought, the probability that items such as those sought would aid in connecting the suspect with the commission of that offense (or in his conviction), and a reasonable likelihood that the items will be found in the places described.
In the RICO statute, 18 U.S.C. § 1962(c), Congress made it a criminal offense for one knowingly to be “associated with any enterprise,” as that term is defined. The statute has been upheld even though it undoubtedly impinges upon associational freedoms. See United States v. Martino, 648 F.2d 367, 380 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982) (quoting United States v. Elliott, 571 F.2d 880, 903 (5th Cir.) cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)). The majority does not claim that “a narrowly drawn, and properly issued and executed [indicia] warrant * * * violates a RICO suspect’s right to freedom of association.” Majority Op. at 792. And the majority seems to concede that affidavits for the search warrants in these cases would have been sufficient if they sought only the fruits, instrumentalities, or even “mere” evidence of crime. But it insists on imposing burdens on warrants seeking indicia evidence even though it may tend directly to prove the “association” component of the crime of carrying on the RICO enterprise. The majority obviously distrusts “mere evidence” although logically *803“mere” and “tangible” evidence may equally prove the forbidden conduct denounced by the RICO statute. The majority holds that
where there is no allegation that the enterprise is wholly illegitimate, as is true in this case, evidence of mere association would not necessarily aid in obtaining a conviction. Something more must be demonstrated; otherwise, the Fourth Amendment would offer little protection for those who are innocently associated with a legitimate enterprise, the affairs of which are being conducted by others through a pattern of racketeering activity-
Majority Op. at 793. Specifically, the majority tell us that
in the absence of a showing that such a large portion of the RICO enterprise’s activities are illegitimate so that the entire enterprise, in effect, becomes wholly illegitimate, the affidavit in support of a search warrant authorizing the seizure of indicia of membership or association must also provide probable cause to believe that the subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering activity.
Majority Op. at 794. This is said to be required to prevent seizure of “mere evidence” from any suspected member or associate of any enterprise without nexus to criminal activity, which would “offend” Warden. Id. Maj.Op. at 794.
This professed concern for fidelity to Warden both misapprehends and distorts that authority’s holding. The Warden court has decided, in language not difficult to comprehend, that all that is required is that
“in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.”
Warden, 387 U.S. at 307, 87 S.Ct. at 1650. This simple thesis is even more obvious when one considers just what was the “nexus” which was found sufficient in that case: the police found clothing which they reasonably believed would “aid” in identification of the robber. The “mere” evidence did not “wholly” serve to prove that Hayden was the robber, but could reasonably constitute a link in the evidentiary chain supporting the reasonable belief that the man found in the house was the man who had run from the bank. I do not understand what, in this simple concept, so eludes the majority’s grasp.
In reality, the majority’s rationale simply is a construct harking back to the comforting impedimenta of Aguilar and Spinelli, and which accommodates a patent unease with the directions of Warden and the explicit holding of Gates.
To this end, two cognate positions are asserted. First, it is said that because the crime involves “association,” the affidavit must (presumably invoking the First Amendment) charge that the enterprise is wholly illegal and punishable (as; for instance, inducing panic in a crowded theater, by yelling “fire!”). Second, if the affidavit fails directly to make the total allegation, it cannot be aided by references contained therein adverting to the fact that an indictment was returned, even if the return was to the magistrate’s own court, because an indictment establishes no probable cause or else does not establish cause of the right sort.
For these grafts on the body of the criminal laws, the majority supplies neither logic nor precedent for the proposition that the warrant must prove that the RICO enterprise is totally illegal. Indeed, not even an indictment has to make that allegation. It has always, until now, been enough that the associational conduct in criminal charges (conspiracy, combination, aid, counsel, assistance, comfort, etc.) be set forth in the terms of the statutory offense and that the forbidding statute be constitutionally sanctioned. The majority has recognized that Congress has the authority to enact the RICO prohibitions, because association may also take the form of conduct, and may be proscribed, as is set forth in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).
*804The point is that a rule requiring that a search warrant show not only a connection between the items sought and a crime, but show that the conduct constituting the crime is itself “wholly” illegal, is a new invention in the criminal law. Warrants may issue to seize many things not wholly used in misconduct, for example, checkbooks, although some of their entries may relate to such quite innocent things as child support or church dues. The majority does not contend that we are dealing with over-breadth, or that the items described, seized, and subsequently used in evidence, were not probative in proving the defendants’ criminal associational conduct. Instead, the majority has rejected the complete array of evidence without identifying a single document, patch, shield, picture, or other item which was admitted into evidence and which was not logically held “indicia.”
A properly drawn warrant is the opposite of the general warrant, and its issuance is justified because everyone, unless privileged or otherwise excused, may be required to yield up relevant evidence in connection with pending or impending criminal cases. The Fourth Amendment requires specificity as to persons, houses, papers and effects; and these requirements must be made known to a judicial officer by oath or affirmation. Seldom can it be demonstrated that the ongoing or impending prosecution is for conduct wholly bad. That is a moral, not a legal judgment, and, it is with the latter that this criminal process is equipped to deal.
The majority errs also in rejecting the significance of the recitals in the affidavits describing the RICO charge which the Grand Jury had returned that morning in a detailed indictment against those whose premises were to be searched. The majority holds that the affidavits were defective in that they did not show that the very persons whose premises were to be searched had themselves conducted the affairs of the enterprise through a pattern of racketeering activity. In other words, the warrant would have to contain plenary allegations as in an indictment or information against these individuals, and in addition, would only be valid for searches of premises belonging to persons so charged, to the exclusion of premises of third persons.
Both propositions are incorrect. Making those allegations that associations are criminal in nature, is the function of a criminal pleading, an indictment or information. The materials before the magistrate quite adequately supported their true function— to show probable cause that the items were sought in connection with a described crime, and thus could reasonably aid in convicting persons believed to have committed those crimes, and that they were likely to be found in the described premises. The affidavits described conduct which amounted to the racketeering activity embraced in the statute and which helped to prove that the Hell’s Angels Motorcycle Club was a RICO enterprise. They set forth the basis of the affiant’s knowledge from which it appeared highly probable that the indicia sought was not only likely to be found only in the possession of members or associates of the enterprise, and that such indicia would be found in the premises to be searched. The documents under oath recited that a formal RICO indictment had that morning been returned to the district court by the Grand Jury charging each person with conspiracy to conduct, or with participation in conducting, the affairs of the enterprise, the Hell’s Angels Motorcycle Club.
Citing United States v. Ellsworth, 647 F.2d 957 (9th Cir.1981), cert. denied 456 U.S. 944, 102 S.Ct. 2008, 72 L.Ed.2d 465 (1982), the majority held that the references to the indictment had no value. I do not understand why. Ellsworth is not a RICO case, but involved assault upon a federal officer. Second, the search warrant was upheld, not rejected. See id. 647 F.2d at 964 (“[T]he magistrate was not in error in finding probable cause.”).
Moreover, the Ellsworth court did not hold that the magistrate could not, in determining probable cause, consider the indictment which a Grand Jury had returned. The Ellsworth court said that the magis*805trate could take judicial notice of the indictment.
In addition to the information supplied by the witnesses on the scene identifying appellant with the alleged crime, and thus targeting his house as the possible location of critical evidence, we have the indictment. The magistrate has the same right as the court to take judicial notice, United States v. Sevier, 539 F.2d 599, 603 (6th Cir.1976), and affiant having advised the magistrate of the indictment, the information was before him.
Ellsworth, 647 F.2d at 963. The majority has overstated the opinion in Ellsworth, and has understated the probable cause significance of a valid indictment.
It is the function of a Grand Jury “to determine whether there is sufficient probable cause to require an accused to stand trial before a petit jury.” But the majority views that kind of probable cause as a different species. It says that while the indictment “conclusively determines the existence of probable cause [to require] issuance of an arrest warrant without further inquiry * * it has little significance so far as search warrants are concerned. Majority Op. at 794. The majority’s assertions that “an indictment alone constitutes [insufficient probable cause to issue a search warrant,” id., at 795, is a non sé-quito, for the indictment did not stand alone as the basis for the magistrate’s finding of probable cause.
In addition to detailed recitals showing the nature of the indicia, the connection with association or membership in the subject enterprise, and the inference that possession of such indicia indicated membership or association, the affidavits referred to information received, from persons believed to be reliable, linking membership and association to the suspects and stated the affiant’s own professional conclusions that such affinity existed. Paragraphs 25 and 26 recited that each “suspect” was
identified as a member of the Hell’s Angels Motorcycle Club in a report, dated April 1973, written by the Organized Crime and Criminal Intelligence Branch of the California State Department of Justice.
Government’s Partial Excerpt of Record for Rehearing at 68.
The reference to the Grand Jury indictment set forth, inter alia:
II26. That on June 13, 1979, the Federal Grand Jury for the Northern District of California, at San Francisco, returned a sealed indictment, which charges that [each appellant] was associated with an enterprise within the meaning of 18 U.S.C. § 1961(4), to wit, the HELLS ANGELS MOTOR CLUB, from on or about January 1, 1966, to the date of the indictment.
Id. It is, of course, no valid objection that the two recitals were based on hearsay because hearsay is admissible in finding probable cause.
The issue then is whether the magistrate could consider, in looking for probable cause, that the Grand Jury arm of his court had returned an indictment charging the persons whose premises were to be searched with the RICO offenses, specific indicia and the locations of which were described with particularity in the affidavit.
Perhaps the initial inquiry is — what is probable cause in the context of warrants for search? In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), Justice Rutledge said:
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
“The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” McCarthy v. De Ar-mit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at page 161 [45 S.Ct. at page 288]. And this “means less than evidence which would justify condemnation” or conviction, as Marshall, C.J., said for the court more *806than a century ago in Locke v. United States, 7 Cranch 339, 348 [3 L.Ed. 364]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543].
338 U.S. at 175-76, 69 S.Ct. at 1310-11.
Legal scholars have pointed out that, while the Carroll-Brinegar statement is frequently cited,
* * * it is important to keep in mind that probable cause for search requires a somewhat different kind of conclusion than probable cause for arrest. For arrest, there must be a substantial probability that a crime has been committed and that the person to be arrested committed it; for search, there must be a substantial probability that certain items are the fruits, instrumentalities or evidence of crime and that these items are presently to be found at a certain place.
Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure, 268 (5th ed. 1980). The courts have not consistently distinguished between probable cause for arrest and for search, although the requirement of reasonable showing that the items will be found where indicated involves considerations of staleness of the information and other concerns less pertinent to arrests than searches. The primary emphasis in examining probable cause for arrest is the degree of reasonableness for belief that a crime has been committed. In a search for evidence of a crime, the primary emphasis is upon the particularity of description of items and place, although it is also important to establish the probability that a crime has been committed, since both the fact and the nature of the offense are components of the reasonableness of the officer’s conclusion that the evidence will be found.
The issue is now settled. Rules 4(b) and 41(c) of the Federal Rules of Criminal Procedure explicitly provide that “[t]he finding of probable cause may be based upon hearsay evidence in whole or in part.” See also Rule 5.1 Fed.R.Crim.P. (same rule applies at Preliminary Examination hearing). We turn to the question: why may not the magistrate take note of the indictment and that document’s bearing on probable cause?
An indictment has many procedural consequences. Without more, it justifies the issuance of a warrant of arrest, whereas an information or complaint would require a showing of probable cause under oath. Rule 9(a) Fed.R.Crim.P. Under 18 U.S.C. § 3060(e), a person charged (other than by indictment) is entitled to a preliminary hearing before the magistrate to determine probable cause unless, prior to the date fixed for hearing, an indictment is returned.
An indictment is not just another piece of paper. It has substantive value in the search for probable cause. This is inescapably clear in Gates. Justice Rehnquist noted that Aguilar’s original phrasing of the “two-pronged test” for determining probable cause was really only intended as guides to the finding, and only required that:
The magistrate must be informed of some of the underlying circumstances from which the informant concluded that ... narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant ... was “credible” or his information “reliable.”
Gates, 103 S.Ct. at 2328, n. 6 (citation omitted) (emphasis in original). He observed that the court had neither intended to mandate “rigid compartmentalization” of the Aguilar inquiries, nor that the inquiries be “elaborate exegeses of [in that case] the informant’s tip.” Id. And finally, he said that this was demonstrated by the decision in Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965) (filing of a [detailed] complaint could establish the probable cause necessary to extend statute of limitations):
*807We held there that a criminal complaint showed probable cause to believe the defendant had attempted to evade the payment of income taxes. We commented that:
“Obviously any reliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source. * * * Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.”
Id. (Citation omitted) (emphasis in original).
I do not understand why an indictment, which for almost every other practical pretrial purpose is recognized as justifying probable cause to believe that those named therein have indeed committed the offenses charged, cannot legitimately contribute to the presentation of “enough information” to enable the judicial officer to make his judgment.
In still other respects, the majority’s holding is unsupported by the authority which it cites. Early in the opinion, Zurcher v. The Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), was invoked for the proposition that the ordinary Fourth Amendment requirements need additional protections “[w]hen activity protected by the First Amendment becomes the subject of a criminal investigation.” Majority Op. at 791. Applied here, according to the majority, this need for additional protection forbids using search warrants for “indicia” (associational) materials, unless the affidavit describes the association as having connection with criminal conduct (carrying on a RICO enterprise) which is entirely illegal. Further, those whose premises are to be searched must themselves be shown to have been engaged in that wholly illegal associational conduct.
Neither the First Amendment nor Zurcher support this view of the interplay between the two Amendments.
Zurcher, which the author, Justice White, described as an effort to “reconstrue the Fourth Amendment” so as to forbid issuance of a warrant to search premises of a non-suspect third party “except in the most unusual circumstances,” Zurcher, 436 U.S. at 550, 98 S.Ct. at 1973, in no way stands for the proposition enunciated by the majority.
In Zurcher, a search warrant was issued to seize photographs and other materials in a newspaper office relevant to identifying individuals who had participated in a demonstration which finally resulted in violence between the participants and police officials. There was no indication that personnel of the newspaper had themselves engaged in any unlawful conduct. The warrant was executed, search was made, and photographs were seized.
The newspapers and others sued the law enforcement officials under 42 U.S.C. § 1983, and the district court held that the warrant was improperly issued. It concluded that a search warrant could not issue to search a newspaper office whose personnel was not suspected of crime unless there was reason to believe that the paper would not honor a subpoena duces tecum, except in the “rare” circumstances that otherwise the material might be removed from the jurisdiction or destroyed, and that a court order to produce would not be obeyed. This circuit affirmed.
The Supreme Court granted certiorari and reversed. Justice White’s opinion held:
(1) A search warrant may issue for items in the possession of a third party who is not suspected of crime; the critical element is not whose possession is involved, but whether there is reasonable cause to believe that the “things” to be seized are to be found on the property. Rule 41 of the Federal Rules of Criminal Procedure authorizes search for “any * * * property that constitutes evi*808dence of a criminal offense.” The reference is to “things,” not to arrests.
(2) Search warrants have value in locating evidentiary items early in an investigation, before all the actors or facts may be known. Privacy interests are protected because “[t]he Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here * * * ” Zurcher, 436 U.S. at 559, 98 S.Ct. at 1978.
(3) “Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing * * * [the special rules imposed by the district court].” Id., 436 U.S. at 565, 98 S.Ct. at 1981.
Justice White concluded:
Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant — probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness — should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.
Id.
Zurcher is on point, for it literally deals with First Amendment freedoms of speech and of the press, while the majority here has focused on the correlative importance of privacy and the freedom of association. The values of both are alike. The “exactitude” referred to by Justice White is an important condition, but what it implicates, especially in the light of Gates, is the “common sense” determination by the magistrate that the materials before him are enough to show the probability that the “things” described will aid in proving the crime and will be found in the places described. The majority’s new rule does not withstand the challenges of precedent and logic under Zurcher.
Gates does apply to this case, it is disposi-tive. The magistrate’s duty, in weighing probable cause for a search warrant, is
simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 103 S.Ct. at 2332. This precept is sound when dealing with the anonymous informant. Its soundness also applies to search warrants.
Gates also limits our own review:
[T]he duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis * * * for concludpng]” that probable cause existed.
Id.
In its mistaken concern to find and invoke superseded restrictions, the majority has lost sight of the very core of the “right” contained in the Fourth Amendment. It is not a right forbidding all searches and seizures. It is a right to be secure against “unreasonable searches and seizures.” That is the “overall reasonableness” which the Zurcher Court said will, properly administered, afford the protection which the Amendment was adopted to bring.
The affidavit here satisfied all reasonable requirements for particularity. The impartial judicial officer properly gave weight to an indictment, “fair on its face,” which he knew had been returned and that, along with all that information incorporated in the affidavit, and the information of which he could take judicial notice, gave him probable cause to believe that the persons named had been involved in the RICO offenses; that the items described would aid in proof thereof; and they would probably be found in the places to be searched.
On this record as it came to us from the district court before the decision in Gates, I was convinced that the convictions should *809be affirmed. In the brighter light of Gates, and after careful reading of the majority’s unconvincing effort to avoid or distinguish the Supreme Court’s holding, I am more than ever convinced that reversal is not mandated by the Fourth Amendment, does not comport with current precedent, and does not serve the interests of sound administration of justice. I would still affirm.
Commentary on Order Modifying Majority’s Opinion
As its final effort, the majority has receded from its position which had been that the affidavit in a RICO case is insufficient unless it shows that the enterprise was “wholly illegitimate.” Maj. Op. passim. The majority now argues that the affidavit is not sufficient to justify a search for evidence of “mere association” unless it also shows that “such a large portion of the subject organization’s activities are illegitimate * * * that the enterprise could be considered, in effect, wholly illegitimate.” Without that showing the affidavit must independently establish “probable cause to believe that the subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering activity.” Id., at 794. This is the majority’s bottom line and it is the point at which I have consistently disagreed. Their change is only cosmetic, however, suggesting that the majority is in reality demanding less than it does.
The majority continues to impose an unwarranted and onerous burden upon the practical task of issuing search warrants. It has unnecessarily created obstacles to the usefulness of a very ancient and valuable procedure. There is no basis for requiring that the evidence-gathering request present the ultimate evidence before that evidence has been obtained.
Nothing has been changed. Therefore, I respectfully continue to dissent.