(dissenting) :
I respectfully dissent.
Because the detective’s affidavit in support of the warrant in this case did not meet the constitutional standard of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), I would affirm Judge Bonsai. In Aguilar, the Court said:
[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was “credible” or his information “reliable.” [378 U.S. at 114, 84 S.Ct. at 1514; footnote omitted.]
The majority correctly states that “the affidavit is clearly sufficient but for the failure of the affiant to state the basis for his belief in the informant’s reliability.” However, under Aguilar, this is a sizeable “but” — indeed a controlling one here.
The majority fills the conceded gap in the affidavit with an ambiguous oral contemporaneous statement by the detective to the judge that “an arrest had already been made in the case.” However, the detective in no way related the arrest to the informer’s reliability. As Judge Bonsai pointed out in his excellent opinion, 267 F.Supp. 337, the detective did not tell the judge that the informant was an accomplice, that the informant had been arrested, or give any reasons *849for his conclusion that the informant was reliable. The majority reads the detective’s statement as though he had said:
There is a basis for believing this informant because an arrest has already been made, thereby proving that the information he supplied is reliable.
But I do not comprehend why an unspecified arrest “proves” that the information supplied by the informer was reliable. Is it because the other arrest was made on probable cause? If so, we have no reason to make such an assumption. And even if the other arrest was on probable cause, with no other link furnished, what does that prove about the informer ? Is it because the other arrest uncovered narcotics? Making such an assumption on no information is a bootstrap on a bootstrap.
Moreover, it does not seem to me that the judge who issued the warrant relied on the information that someone had been arrested in assessing probable cause. The warrant issued on January 8, 1964. The judge recalled the detective’s statement about a year later when testifying in a habeas corpus hearing in the Supreme Court of the State of New York. The judge testified there as follows:
Q. Did Detective D’Arpe tell you that — who the informant was? A. No, he never did, unless it is stated in the affidavit. I would not remember.
Q. Did you question him who the informant was?
******
A. The affidavit which he submitted would be the basis on which I would issue the search warrant.
Q. You didn’t ask him any questions at all, did you, Judge? A. I have no independent recollection, but I will say that the affidavit that was submitted was sufficient for me — had sufficient information for me to believe that this search warrant should have been issued and was issued.
Q. You made no independent examination of Detective D’Arpe, did you? ******
A. I did not make an independent examination, because the facts in the affidavit were sufficient, in my opinion.
Q. Did he tell you that the confidential informant was an accomplice?
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A. I believe he told me that he had made an arrest of someone and that based on that arrest he needed a search warrant immediately, and would I help him out in signing a search warrant.
Q. You didn’t ask him who he made an arrest of, did you? A. No, I did not.
******
Q. And tell me whether this [affidavit] is anything else but hearsay from an unidentified informant.
******
A. I believe it is sufficient for probable cause for the issuance of a search warrant.
******
Q. Does it say, Judge, that the officer saw or observed anything regarding the presence of narcotics by Schnitzler here ? A. Doesn’t it speak for itself ?
*******
Q. I am asking you a question, Judge. Does this affidavit contain one word— A. No, it doesn’t. You have read it the same as I have.
Q. It doesn’t? A. But, as I stated before * * * the officer had already informed me that he had another person under arrest in connection with this particular case.
Q. Did he tell you who the person was ? A. No, he did not.
Q. Did he— A. But he said he had arraigned him that day.
******
*850Q. Judge, did you ask Mr. — Detective D’Arpe to put in his affidavit that he had arrested somebody? A. No.
Q. There was no stenographer taking the proceedings here? A. No.
Thus, the judge testified that he “did not make an independent examination, because the facts in the affidavit were sufficient * * from the judge’s testimony, it appears that the arrest was mentioned by the detective only as a basis for speed in issuing the warrant.1 It seems fairly clear to me that the judge did not rely on the statement about an arrest to supply an essential element of probable cause — and with good reason, considering the paucity and ambiguity of the information thus conveyed.
In other words, reliance now on that statement is an afterthought, not even mentioned by the majority opinion of the New York Court of Appeals in holding the search legal. People v. Schnitzler, 18 N.Y.2d 457, 276 N.Y.S.2d 616, 223 N.E.2d 28 (N.Y.1966). That opinion makes clear that the majority of the New York Court of Appeals thought the warrant valid because, in response to the judge’s question at the time of its issuance, the detective answered that the informer was reliable, id. at 618, 223 N.E.2d at 30. With all due respect to that court, I feel that Judge Bonsai and the three dissenting judges on the New York Court of Appeals were right in finding that a conclusory averment of the informer’s reliability is no substantiation thereof.
I agree that we should approach these problems in a common sense manner. But I cannot convert a vague remark that an arrest had been made into proof of an informer’s reliability. The majority points out that preference is accorded to search warrants over warrant-less arrests and searches. This makes excellent sense, but only on the assumption that the magistrate observes the constitutional requirements for obtaining a warrant. Under Aguilar and Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431 (1966), this warrant is fatally defective.
. Detective D’Arpe’s testimony shows that he did not intend the arrest to relate to the informer’s reliability.
Q. Did you tell Judge Glowa when you came before Judge Glowa the name of the man whom you arrested? A. I don’t believe so. I believe the only thing the Judge asked me was if the informant was reliable.
Q. Was the informant — and what did you tell Judge Glowa about whether the informant was reliable? A. I said he was.
Q. And what did you say to him to make him believe he was reliable?
* * * * *
A. I didn’t say anything.