(dissenting) :
With all respect for the views of the majority as to the disposition to be made of this admittedly close case, my own feeling is that reversal is not required. Upon the facts as the trial judge took them to be, the question is solely one of the reasonableness of the police officer’s decision to act on the basis of what the informant had told him. Under the circumstances, that action, if it was to be effective, apparently had to be immediate. I cannot say that, viewing the matter from one situated as was the officer, the decision to act promptly to apprehend appellant was unreasonable. The informant was personally known to the officer as one who had given him reliable leads in the past. That those happened to be in other areas of criminality than narcotics does not seem to me to be controlling. Those very areas suggest that she was living in that unfortunate world where narcotics make their appearance, and where an asserted failure to share them with an associate provides a vengeful and sordid, but highly credible, motivation to inform the police. Assuming that the motivation in question was signified by the informant under the circumstances related by the police, this record has for me a flavor of credibility; or, at the least, I cannot say that it may not reasonably have seemed so to the officer on the beat.
The majority opinion expressly grounds its reversal, however, in its refusal to accept the facts as they appeared to the trial judge. Applying the “clearly erroneous” standard of Rule 52(a), Fed.R.Civ.P., it nonetheless rejects the hearing judge’s “assumption or implied finding of fact” that the police officers received any detailed description of appellant from the alleged informant.1 There being a direct conflict in the testimony on this point between the informant, on the one hand, and the two police officers, on the other, this reversal may be said to come about because the trial judge chose to believe the latter. From the remoter vantage point I occupy' — a remoteness in contemplation of which Rule 52(a) was consciously framed — I cannot say that this choice was “clearly erroneous.”
. The alleged informant, Gaskins, testified flatly that she never talked to Officers Bello and Ralls at all. The majority accepts the trial court’s finding to the contrary, and states that “it is possible that Gaskins had given information in the past, and did tell Bello that there was a Negro man in Franklin’s Delicatessen who had heroin in his possession.” It rejects “only the implied finding that the officers received the detailed description they claimed.” It founds this rejection upon the belief that, had the detailed description in fact been given, the officers would never have taken two men from the store into the street and searched the appellant second. This does not seem to me so improbable as it does to my brethren, however illegal it may have been in respect of the second man. The officers said that they were approached abruptly by Gas-kins and told that one man, possessing heroin and dressed in a certain way, was in a neighboring store. When they entered the store they found two men together. Even though the description fitted only one, it strikes me as not unlikely that, having found two in company when they expected only one, they requested the two to come outside, with a purpose to search both. One does not have to condone this in respect of the second man in order to think that a finding of probable cause could rationally be made as to the arrest and search of appellant. The varying explanations given by Bello of why the second man was seized may reflect his consciousness of vulnerability to criticism in respect of that arrest, but they do not seriously undermine his position vis-a-vis Gaskins as to who was telling the truth about their talk, or explain away the fact that the officers were able to go directly to appellant even though they unforewarnedly found him in the company of another man.