concurs, dissenting:
We respectfully dissent. In our opinion, the decisions of the United States Supreme Court in Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 43 (1966), United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) and Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and the decision of this Court in Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966), require a reversal of the District Court as the affidavit submitted in support of the search warrant did not provide a substantial basis for its issuance.
The majority opinion concedes that the “visits” to the apartment, the presence of the two telephones in the searched apartment, and the affiant’s personal knowledge that the defendant was a known gambler are, at the most, established suspicions. As such, they are not sufficient to constitute probable cause for the issuance of a search warrant. Locke v. United States, 7 Cranch. 339, 3 L.Ed. 364 (1819); See Pigg v. United States, 337 F.2d 302, 305 (8th Cir. 1964); Crochran v. United States, 291 F.2d 633, 636 (8th Cir. 1961).
It argues, however, that the “suspicions” were ripened into probable cause by the affiant’s statement that the F.B.I. had been informed by an unidentified reliable informant that Spinelli is “operating a handbook and accepting wagers and disseminating wagering information” by means of the two telephones assigned numbers WYdown 4-0029 and WYdown 4-0136.
Conversely, it argues that the “suspicions” served to corroborate the conclusions of the unidentified informant and establish his reliability.
We cannot agree with either contention.
The Fourth Amendment’s right1 of the people to be secured against the unreasonable searches of their persons, houses,2 papers, and effects, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. *895652 (1914), extends to the guilty as well as the innocent. McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Hobson v. United States, 226 F.2d 890, 892 (8th Cir. 1955).
While the use of search warrants is to be encouraged, United States v. Ventresca, supra, a magistrate must perform his duties neutrally; he “must not serve merely as a rubber stamp for the police.” Id., 380 U.S. at 109, 85 S.Ct. at 746; Aguilar v. State of Texas, supra, 378 U.S. at 111, 84 S.Ct. 1509; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
“ * * * It is not the magistrate’s function, therefore, merely to determine whether the official seeking the warrant believes that probable cause exists; rather, the magistrate must ask whether the facts presented persuade Mm that there is probable cause. * * * ” United States ex rel. Rogers v. Warden, No. 30874, 2d Cir., June 15, 1967, 381 F.2d 209.
A proceeding by search warrant is a drastic one, Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932), and must be carefully circumscribed. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
With these general principles in mind, we consider whether the magistrate here had probable cause to issue a warrant to search Apartment F of the Chieftain Manor Apartments.
As the only information before the magistrate when he issued the search warrant was that set forth in the affidavit, the sufficiency of the affidavit must be determined from its face. Aguilar v. State of Texas, supra, 378 U.S. at 109, n. 1, 84 S.Ct. 1509; Giordenello v. United States, supra.
While hearsay may be the basis for the issuance of a search warrant, Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), if it is relied upon to establish probable cause, the magistrate must be informed of some of the underlying circumstances supporting the affiant’s conclusions, and his belief that any informant involved was credible or his information reliable. United States v. Ventresca, supra; Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Gillespie v. United States, supra. See Annot. 10 A.L.R.3d 359 (1966).
Applying the standards set forth in Ventresca, Rugendorf and Gillespie to the informant’s statement in the present case, it is clear that it was not sufficient to justify a finding of probable cause by the magistrate. The affidavit in which it was contained:
(1) Failed to set forth any basis upon which the magistrate could form an independent opinion of the informant’s reliability, or on which he could find that the informant had furnished information in the past which had proved to be reliable.
In McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), where the Supreme Court found the informant to be reliable, the informant had furnished information to police officers forty or more times, which information had proved to be reliable in the past and had resulted in conviction.
And, in United States ex rel. Rogers v. Warden, supra, 381 F.2d 209, rev’d on other grounds, the Second Circuit found the unidentified informant to be reliable on the basis that the affidavit indicated that he had furnished information in the past which had resulted in three convictions. Compare United States v. Robinson, 325 F.2d 391 (2d Cir. 1963); and Cochran v. United States, supra, where the reliability of an informer was held not to have been established.
In Cochran, Chief Judge Vogel, writing for this Court, declared:
“ ‘ * * * An uncorroborated tip by an informer whose identity and reliability are both unknown does not constitute probable cause to make an arrest.’ Contee v. United States, 1954 [94 U.S.App.D.C. 297], 215 F.2d 324, 327.” Id., 291 F.2d at 636.
*896The affidavit in the present case contained only a simple allegation that the unidentified informant was reliable. There was nothing in it from which the magistrate could have determined that the informant had furnished reliable information in the past, nor were any facts set forth from which such an inference could be drawn. United States ex rel. Schnitzler v. Follette, 267 F.Supp. 337, 342 (S.D.N.Y.1967); See State ex rel. Duhn v. Tahash, 275 Minn. 377, 147 N.W.2d 382 (1966).
(2) Failed to (a) indicate whether the informant spoke on the basis of his personal knowledge, or (b) to outline any of the underlying circumstances upon which the unidentified informant based his statement that illegal activity was taking place on the premises searched.
(a) In Riggan v. Virginia, supra; Aguilar v. State of Texas, supra, 378 U.S. at 109, 84 S.Ct. 1509; and Gillespie v. United States, supra, 368 F.2d at 3, the informant’s statements were substantially the same as the one here.3 In Aguilar, the Court, in pointing out that the affidavit failed to indicate whether the informant spoke from his own personal knowledge, stated:
“The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * * to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’ ” Id., 378 U.S. at 113-114, 84 S.Ct. at 1513.4
(b) The same Court, in laying down the need for the magistrate to be informed of some of the underlying circumstances supporting the informant’s conclusions, stated:
“ * * * the 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, [11 L.Ed.2d 887,] 84 S.Ct. 825, was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 U.S. at 486, 78 S.Ct. 1245 [2 L.Ed.2d at 1509]; Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct. at 369 [92 L.Ed. at 440], or, as in this case, by an unidentified in*897formant.” Id., 378 U.S. at 114-115, 84 S.Ct. at 1514.
In United States v. Ventresea, supra, where the Court found that the underlying circumstances had been adequately set forth, the affidavit stated that the informants, unidentified Revenue Agents, had smelled fermenting mash outside the premises searched on August 18th and 30th; saw bags of sugar being delivered to the premises on July 28th, August 2nd, 7th and 16th; and observed tin cans being taken to and from the premises on August 11th, 16th, 24th and 28th. The Court cautioned:
“This is not to say that probable cause can be made out of affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. State of Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. * * * ” Id., 380 U.S. at 108-109, 85 S.Ct. at 746.
See United States v. Conti, 361 F.2d 153 (2d Cir. 1966) (where the affiant personally placed bets with the defendant).
(3) Failed to indicate when the informant became aware of the fact that illegal activities were taking place in the apartment, or when the informant gave this information to the affiant. The fact that the affidavit and the informant’s statement was couched in the present tense does not satisfy this requirement. See Sgro v. United States, supra, 287 U.S. at 210-211, 53 S.Ct. 138; Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963).
In Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966), the leading case on the issue of time, the affidavit for the search warrant read, insofar as material, as follows:
“ * * * he has reason to believe that on the premises * * * there is now being concealed certain property, namely mash fit for distillation, apparatus for the purpose of distillation and nontax paid alcohol which are held in violation of Title 26, U.S.C. Sec. 5601 (a), (1) (6), (7), (8), (12):
“And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
“1. Information given anonymously to the Affiant that the aforementioned materials are being held on said premises.
“2. The detection of a strong odor of mash outside the premises by the Affiant.” Id. at 312, n. 1. (Emphasis added.)
The Court there held that the affidavit was not sufficient to establish probable cause because it did not contain an averment as to the time when the affiant received information from his anonymous informant, or the time when the affiant detected the order of the mash. It stated that the use of the present tense was not sufficient. The Court, after making a detailed examination of the cases dealing with this question, stated:
“ * * * The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a day, a week, or months before the date of the affidavit. To make a double inference, that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. * * * Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them.
******
“ * * * It is one thing to expect the magistrate to give a commonsense *898reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed.” Id. at 316-317.
In the present case, although the affiant’s statement indicates when he saw Spinelli traveling from Illinois to Missouri, and when he observed him visiting the apartment complex and the apartment, it is silent as to when the affiant learned from the informant that Spinelli was using the phones in Apartment F for illegal activities, or when such activity took place. Just as the Rosencranz Court stated that it could not infer from the date of the affidavit that the information had been passed at or near that date,5 we cannot infer from this affidavit that the anonymous information was transmitted to the affiant at or near the date the warrant was requested, nor can we infer that the informant’s “knowledge that the two phones were being used by Spinelli” was correct. Thus, the informant’s statement here, as in Rosencranz, is “suspended in the air.”
In summary, we do not believe that the unidentified informant's statement to the affiant can be used for any purpose. Not only did the affidavit fail to establish the reliability of the informer, but there was no showing that the informer spoke from his own personal knowledge. None of the underlying circumstances supporting the informer’s belief were set forth, and the affidavit failed to indicate when he received or passed on the information that Spinelli was conducting gambling activities over the two phones in question. While we do not agree with the majority that the informant’s reliability was established by his knowledge of the existence of the phone numbers in the apartment searched, even if this view is accepted, the informant’s statement is totally unacceptable for the other stated reasons: 6
Nor do we believe that the facts stated in the affidavit, obtained by the affiant through surveillance, rise above the level of suspicion whether considered with or without the informant’s conclusion.
(1) Interstate travel between East St. Louis, Illinois, and St. Louis, Missouri, is surely so common that it cannot be viewed as establishing an unusual pattern of travel from which illegality can *899be inferred. Compare Travis v. United States, 362 F.2d 477 (9th Cir. 1966) (defendant established a definite pattern or modus operandi); and Hernandez v. United States, 353 F.2d 624, (9th Cir. 1965).7
(2) Four observed visits to the apartment complex and one such visit to Apartment F, absent any showing of activity indicating that bookmaking activities were taking place in the apartment, does not, in our judgment, add support for a probable cause finding.
The Second Circuit, in Rogers v. Warden, supra (reviewing a petition for habeas corpus), effectively overruled a decision of the New York Court of Appeals where the facts indicated that a police officer had personally observed four known addicts and nine other persons entering or leaving the premises searched over a two-day period, even though the affidavit, as here, stated that the affiant had received information from an informant, known to be reliable, that the defendant, and others were selling narcotics in the first floor and basement apartment.8 The Court, in holding that the warrant failed to establish probable cause, stated:
“ * * * there is not a hint in the present affidavit that the informant had seen any trafficking in narcotics taking place in Rogers’ apartment. It is difficult for us to understand, therefore, the basis for the inference drawn *900by the Appellate Division and the New York Court of Appeals that the informant spoke of what he had seen, for the ‘deficiencies [in the affidavit] could not be cured by the * * * reliance upon a presumption that the complaint was made on the personal knowledge of the [informant]” Id. at 218 of 381 F.2d.
****** “Since it is apparent that Rogers lived in an ‘apartment’ building, it is obscure, vague and at the very least equivocal whether Gowski actually observed the unknown males and known addicts entering Rogers’ ‘apartment,’ or whether he merely saw them entering the ‘premises,’ * * * ” Id. at 219.
* * * * * *
“It can be argued, of course, that when Gowski stated that he had observed the ‘premises,’ he was really talking about the ‘apartment.’ We recognize that affidavits are often hastily drawn and that we cannot expect a police officer to draft an affidavit with the skill and precision of a lawyer. * * * Nevertheless, the simple fact remains that from the affidavit before us, neither we nor the magistrate who issued the warrant could be reasonably certain what it was that the officers observed, and there is nothing to indicate that the magistrate attempted to make any inquries to resolve the ambiguity that existed. * * * ” Id. at 220.
The issuance of a search warrant must be based on more specific evidence than was provided in the present instance. As-we stated earlier, in United States v. Ventresca, supra, government agents smelled the odor of fermenting mash in the vicinity of the suspected dwelling, and observed other activities suggesting the operation of a still. In Miller v. Sigler, 353 F.2d 424, 426-427 (8th Cir. 1965), the affiant smelled the odor of marihuana outside the premises searched on a number of occasions. In Biondo v. United States, 348 F.2d 272-273 (8th Cir. 1965), the defendant was observed carrying racing forms into the apartment. In United States v. Pinkerman, 374 F.2d 988, 990 (4th Cir. 1967), the affiant saw barrels and smelled mash outside the premises. In United States v. Ramirez, 279 F.2d 712-715 (2d Cir. 1960), the affiant personally saw quantities of white powder he believed to be heroin in the apartment to be searched two days before the warrant was issued. In United States v. Rugendorf, supra, a reliable informant told the affiant he saw furs, alleged to have been stolen, in the defendant’s basement a few days before the search.9
(3) The fact that two telephones were located in the vested apartment does not, in this day and age, in the absence of some specific evidence of how the phones-were used or the presence of unusual *901equipment, constitute probable cause for the issuance of a search warrant. United States v. Gebell, 209 F.Supp. 11 (E.D. Mich.1962). See United States ex rel. DeNegris v. Menser, 360 F.2d 199, 203 (2d Cir. 1966); United States v. Nicholson, 303 F.2d 330 (6th Cir. 1962), compare United States v. Gorman, 208 F. Supp. 747-748 (E.D.Mich.1962), where numerous long distance telephone calls with known bookmakers were consummated over the phones in question; Biondo v. United States, supra, 348 F.2d at 274, where unusual telephonic equipment was in use; and, United States v. Conti, supra, where the affiant placed bets by making a phone call to the apartment searched.
(4) The fact that the appellant was known to the affiant and other law enforcement agents as a bookmaker, and an associate of bookmakers, would, if supported by some credible evidence, be a factor which a magistrate might consider, Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. 725, but here, we have no such supporting evidence.
The majority relies heavily on McCray v. State of Illinois, supra; and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), in support of its opinion. We believe that these cases do not support a finding of probable cause here; rather, we feel that they suggest a contrary result.
At the outset, we point out that Draper was followed by Aguilar v. State of Texas, supra; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Ventresca, supra; and most recently by McCray v. Illinois, supra. Thus, Draper must be read in light of these subsequent cases. There are several factors which distinguish Draper from the present case:
(1) In Draper, the informant was a named special employee of the federal narcotics agents;10 here, the informant was unidentified.
(2) In Draper, the informant had given reliable information to the federal agents on numerous occasions over a six-month period, and the information had always been found to be reliable. Here, we have a mere allegation of reliability.
(3) In Draper, the informant told the arresting officer, on September 3rd, that the defendant had taken up residence in the city, and was peddling narcotics to several residents of the city. Four days later, the informant told the arresting officer that the defendant had gone to Chicago the day before, and that he would bring back three ounces of heroin; and that he would return on the morning of September 8th or 9th. He described in exact detail the defendant’s dress and baggage.
Here, the informant gave no information as to when Spinelli had used the telephones for illegal purposes, or when they would be so used in the future, nor does the affidavit indicate when the informant told the F.B.I. Agent that Spinelli “is using the phones for gambling.”
(4) Finally, the information supplied by the informant in Draper is so precise that it obviously came from one intimately familiar with the defendant’s activities; while here, the information from the informant regarding the phone numbers in Apartment F is of such a general nature that it could have been obtained from any one of a number of sources, including the phone book, or another unidentified informant.
Five years after Draper, Justice Stewart, speaking for the Court in Beck v. State of Ohio, supra, where it refused to find probable cause, focused on the essential elements in Draper which *902caused the Court to find probable cause for the arrest. Justice Stewart declared:
“ * * * But in that case the record showed that a named special employee of narcotics agents who had on numerous occasions given reliable information had told the arresting officer that the defendant, whom he described minutely, had taken up residence at a stated address and was selling narcotics to addicts in Denver. The informer further had told the officer that the defendant was going to Chicago to obtain narcotics and would be returning to Denver on one of two trains from Chicago, which event in fact took place. * * * ” Id., 379 U.S. at 95, 85 S.Ct. at 227.
In Beck, the arresting officer had a police photo of the suspect, knew what the suspect looked like, knew that the petitioner had a record in connection with clearing house schemes and schemes of chance, and had received information regarding the suspect’s activities from an undisclosed source. In reversing the conviction, the Court said:
“ * * * But the officer testified to nothing that would indicate that any informer had said that the petitioner could be found at that time and place. Cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. And the record does not show that the officers saw the petitioner ‘stop’ before they arrested him, or that they saw, heard, smelled or otherwise perceived anything else to give them ground for belief that the petitioner had acted or was then acting unlawfully.” Id. at 94, 85 S.Ct. at 227. (Emphasis added.) ******
“ * * * All that the trial court was told in this case was that the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner.” Id. at 96-97, 85 S.Ct. at 228.
Beck was followed by McCray, where the Supreme Court also found probable cause. In doing so, it noted that the unidentified informant had given information to the police on at least forty prior occasions; the information had resulted in a number of convictions; the informant personally observed the defendant selling narcotics and immediately informed the police, who proceeded forthwith to where the affiant had seen the defendant, and after observing the defendant, arrested him.
When Draper, Beck and McCray (all non-warrant cases) are considered together, they indicate that the Supreme Court will find probable cause where the informant is shown to be reliable, the information furnished by him is precise as to time and place, and is either based on the informant’s personal knowledge or is so specific as to indicate that the informant is intimately familiar with the defendant’s operations, and the police have acted promptly upon receiving the informant’s tip.
Here, there is no showing that the unidentified informant had submitted reliable information to the police in the past. The information furnished by him was conclusory in nature, and it does not appear that it was based on his personal knowledge. And, finally, the affidavit does not indicate whether the police acted promptly on receipt of the information from him.
CONCLUSION
We share the feelings of our colleagues that affidavits presented to a magistrate, to establish probable cause for the issuance of a search warrant, must be viewed in a commonsense matter.
When we read the affidavit here, at least three commonsense questions occur to us. We feel the same questions ought to have occurred to the magistrate.
(1) How did the affiant know that the informant was reliable?
(2) How did the affiant know that Spinelli was using the two telephones to conduct his operations in Apartment F ?
*903(3) When did the informant obtain this information; and when did he transmit it to the affiant?
We cannot believe that we are being hyperteehnical by insisting that these basic questions be answered.
It is important that the use of search warrants be encouraged. It is equally important that magistrates satisfy themselves that there is reasonable cause for believing that illegal activity is taking place on the premises to be searched before issuing search warrants.
We concur with the majority that the defendant had standing; but as it is our belief that probable cause did not exist for the issuance of the search warrant and as this determination is dispositive of the case, we express no opinion on the other issues raised by the appellant.
. The Fourth Amendment reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The policy expressed in this amendment finds expression in Rule 41 of the Federal Rules of Criminal Procedure.
. The Supreme Court has refused to uphold otherwise unreasonable criminal searches merely because commercial, rather than residential, premises were the object of the police intrusions. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
. In Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the affidavit in relevant part read:
“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”
. The majority opinion urges that the informant’s statement to the affiant that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones (numbered) WYdown 4-0029 and WYdown 4-0136,” was a statement of fact and not a conclusion. We believe it to be a statement similar to that in the Aguilar affidavit which the Supreme Court referred to as a conclusion.
. Judge Coffin asks a pertinent question in Rosencranz:
“ * * • But suppose a commissioner, on the basis of an affidavit * * * were to infer that both affiant’s information and observation were recent, while at a hearing on a motion to suppress, affiant states that both information and observation were several months old. There would, in fact, have been no basis for issuing the warrant, and yet the affidavit would have been accurate and the affiant would be in no danger of prosecution for its falsity. * * * ” Id. at 317.
. The majority opinion cites Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966); and Hodgdon v. United States, 365 F.2d 697 (8th Cir. 1966), in support of the proposition that the hearsay information obtained from the unidentified informant had been sufficiently corroborated here to establish probable cause. A reading of
these cases indicates that in each case, either the informant or the affiant had personally observed illegal activities in or near the premises to be searched.
Thus, in Jones, the informant stated that he had purchased narcotics from the defendant in the defendant’s apartment on a number of occasions, the most recent one being a day prior to the issuance of the search warrant. He detailed precisely where in the apartment the narcotics were kept.
In Rosencranz (reversed on other grounds), the informant’s conclusory statement, that the defendant was operating a still, was corroborated by the personal observations of the affiant (a law enforcement agent) who smelled the strong odor of mash outside of the premises of the appellant.
And in Hodgdon, the informant (a U.S. Court Commissioner) told the affiant (a law enforcement officer) that he had been threatened with a gun the previous day by the defendant while alone in his office with the defendant.
. A large number of facts coalesced in Hernandez v. United States, 9 Cir., 353 F.2d 624 (1965), to form probable cause for the arrest and search of the defendant’s bags. Los Angeles police had observed a recurring pattern in incidents involving illicit transportation of marihuana. Large lots were being brought to Los Angeles from Mexico by auto, then carried from Los Angeles to New York City in the luggage of persons traveling on commercial air flights. It was established that the couriers (1) were Latin Americans, (2) traveled first class, (3) traveled on nonstop flights, (4) made no advance reservations, (5) carried new and expensive luggage, (6) carried luggage which usually bore the brand name “Ventura,” (7) carried luggage which usually had combination locks, (8) carried luggage which was exceedingly heavy because of the weight of the marihuana, and (9) paid their fares and weight overcharges in cash with bills in large denominations. Eight such cases had been investigated in the two years preceding the appellant’s apprehension. Airport employees were asked to notify the police if a person fitting the described pattern appeared. The appellant appeared, was arrested, his bags searched, and a large quantity of marihuana was uncovered. In commenting on the search and seizure, the Court, at 628 stated:
“ * * * The circumstances upon which Sergeant Butler relied were within his knowledge before the search was initiated, and were sufficient to justify a reasonable man in believing that the very bags which he did search contained marihuana.”
. The affidavit in Rogers v. Warden, No. 30874, 2d Cir. June 15, 1967, 381 F.2d 211 n. 1 read in part:
“1. I am a detective assigned to the Brooklyn District Attorney’s Off.
“2. I have information based upon confidential information received from an an [sic] informant known to be reliable and accurrate [sic] and whose information in the past has led to the arrest and conviction of three persons. The information is that Jimmy Rogers and other persons found in said apartment are selling narcotic drugs in the 1st fl. & basement apartment of premises 191 Quincy St., Brooklyn, N. Y. Observations by the deponent of the premises on Thursday, January 10, 1963, between the hours of 8:00 and 9:00 P.M. five unknown males and two known male addicts were seen entering the premises; on January 11th, 1963,. from 9:00 to 11:00 A.M. four unknown males and two known male addicts.
“By reason of the aforesaid the deponent has probable cause to believe' that narcotic drugs and paraphernalia commonly used by drug sellers and addicts may be found at the aforesaid premises and upon the persons found' therein.
“3. Based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that such property, to wit, narcotic drugs and paraphernalia commonly used by drug addicts and sellers and [sic] may be found in the possession of Jimmy Rogers and upon the persons found therein or at premises first floor and basement of 191 Quincy Street, Brooklyn, N. Y.”
. In United States v. Jordan, 349 F.2d 107 (6th Cir. 1965), the officers observed the transfer of jugs and smelled the odor of mash emanating from the premises. In United States v. Freeman, 358 F.2d 459 (2d Cir. 1966), the heroin was seen within the premises to be searched by the informant. In United States v. Grosso, 358 F.2d 154 (3rd Cir. 1966), known numbers operators loere observed depositing envelopes and brown paper bags in a car near a cemetery. In Irby v. United States, 114 U.S.App.D.C. 246, 314 F.2d 251 (1963), the affiant observed the government’s special employee taking money from known addicts and the employee turned over narcotics obtained with the money prior to the issuance of a warrant. In United States v. Gorman, 208 F.Supp. 747 (E.D.Mich.1962), several others engaged in handbook activities were seen entering the apartment alone or with the defendant. In United States v. Whiting, 311 F.2d 191 (4th Cir. 1962), a convicted gambler was observed making contact with the defendant under suspicious circumstances by the affiant. In United States v. Suarez, 2d Cir., July 12, 1967, 380 F.2d 713, the affidavit related that the reliable informant had provided information on at least 100 occasions over the past one and one-half years and had observed heroin in the apartment to be searched. See United States v. Ramos, 2d Cir., July 12, 1967, 380 F.2d 717, and United States v. Perry, 2d Cir., July 12, 1967, 380 F.2d 356, where the affidavit contained information comparable to-that in United States v. Suarez, supra.
. Justice Goldberg, speaking in United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965), stated:
“ * * * Observations of fellow officers of the Government engaged in a
common investigation are plainly a reliable basis for a warrant applied for by one of their number. * * * ”