(dissenting).
I regret that I must dissent. First, I think there can be no question as to probable cause for issuance of the search warrant, for the reason that the affidavit upon which it was based contained a positive, unequivocal statement that the affiant had personally observed narcotics, ■ — cocaine and heroin, — being sold on the premises involved, by three different women, the day before the warrant was served. Surely this constituted probable cause for believing that the property was being “used as the means of committing a criminal offense” within the language of the governing rule. Federal Rules of Criminal Procedure No. 41, 18 U.S.C.A.
In the second place, I am unable to convince myself that there was anything unreasonable in the issuance or service of the warrant. Following the language of the affidavit upon which it was based, it directed search of the premises where the sales of narcotics had been observed, viz., the basement and three floors of a dwelling at 6423 Champlain Avenue in Chicago. This was a definite designation of the property to be searched. Upon arrival the officers found different families residing on the different floors^ They searched the building, finding there the defendants whose first names were among those mentioned in the affidavit as “Savannah” and “Sue” in illegal possession of narcotics.
I see nothing in these facts justifying a finding of an unreasonable search. In United States v. Lepper, D.C., 288 F. 136, a warrant was directed to a dwelling, parts of which were occupied by different tenants. In United States v. Wihinier, D.C., 284 F. 528, the building searched was an apartment building. In Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442, the structure consisted of two apartments. In United States v. Nagle, D.C., 34 F.2d 952, the building was a hotel, and some of the rooms were occupied by permanent tenants. In Fry v. United States, 9 Cir., 9 F.2d 38, the property was a rooming house. In all these cases the courts upheld the reasonableness of the search. Here one of the defendants owned the premises; the other was a tenant. Both, according to the affidavit, were selling narcotics in the specific premises named. To my mind, to hold this warrant and the search in pursuance thereof unreasonable is to impose undue limitations upon the constitutional provision forbidding unreasonable searches. I would affirm the judgment.