(dissenting) :
I concede arguendo that, under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431 (1966), when the agents went to the apartment house, they were marginally short of enough information to obtain a valid search warrant, as they themselves recognized — although all would have been well had the informant uttered the magic phrase, “I have seen,” which anyone except a judge would doubtless consider implicit in what he had said. Our question is the different one whether Agent Waters had reasonable cause for the arrest and incidental search. The question is different for two reasons: the existence of an important additional fact, Soyka’s suspicious behavior at confrontation, cf. United States v. Heitner, 149 F.2d 105 (2 Cir. 1945), and the greater need for prompt action to prevent the destruction of evidence once a person possessing narcotics knows that arrest and seizure may be imminent. While United States v. Nicholas, 319 F.2d 697 (2 Cir.), cert. denied, 375 U.S. 953, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963), was a somewhat stronger case for the Government, its principle is controlling here. Most citizens would have regarded Agent Waters as guilty of a gross dereliction of duty if he had meekly allowed Soyka to retreat into the apartment and destroy the narcotics which, by any ordinary standard of common sense, he had every reason to believe were there. To me it degrades the Fourth Amendment when as judges we condemn him for making an arrest that, as he reasonably believed, his duty as a federal officer compelled. The spectre of the consequences of a contrary decision conjured up by the majority is unreal; innocent persons emerging from their apartments do not normally jump back on encountering a single' stranger in the hall.1 Agent Waters did not have time to consult a set of the United States reports, and, as indicated by the fact that three federal judges have made the same supposed mistake, would not have benefited overmuch if he had. Rather he was obliged to make the best decision he could on the spot. While the point is doubtless foreclosed for us, I cannot refrain from adding, with all respect, *452that if Waters erred at all, the error was so minuscule and pardonable as to render the drastic sanction of exclusion, intended primarily as a deterrent to outrageous police conduct, see Linkletter v. Walker, 381 U.S. 618, 631-637, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), almost grotesquely inappropriate.
It is interesting to speculate how my brothers would dispose of a case precisely like this except that the information was that the occupant of Apartment 54 was purveying government secrets to a foreign power, as in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). I have too much regard for their good sense to believe they would hold on such facts that the arrest was invalid and a code book found in the apartment must be returned. But I should not crave the task of writing the opinion in light of today’s decision, and we can hardly expect — indeed we should not want — law enforcement officers to indulge in what we tell them violates the Constitution. Apparent disfavor for certain felonies seems to be leading courts to elevate the standards for search and seizure to unrealistic levels and, without saying so, to move in the direction of the stricter standards governing arrests for misdemeanors. If decision were mine to make, I would not be at all averse to straightforward recognition that the gravity of the suspected crime and the utility of the police action for purposes other than securing a conviction are factors bearing on the validity of the search or arrest decision, or at least on application of the exclusionary rule. See ALI, Model Code of Pre-Arraignment Procedure, Tent. Draft No. 1, § 9.11 (March 1966). Such a course would seem peculiarly appropriate in cases arising under the Fourth Amendment since this bans only “unreasonable” searches and seizures, the main purpose of the exclusionary rule thereunder is deterrence, see Linkletter v. Walker, supra, and no majority of the Supreme Court has held that the Amendment compels that sanction, see Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961) (concurring opinion of Mr. Justice Black). If my brothers’ ruling could be confined to narcotics pushers like Aguilar and Soyka or gamblers like Riggan, I would hardly dissent. But that is not the received wisdom of today; at least in theory this decision would govern crimes of the greatest seriousness and cases where an arrest might lead to the recovery of stolen property or even a kidnapped child rather than of contraband.
I would sustain the rulings of the two able district judges denying suppression and affirm Soyka’s thoroughly merited conviction.
. While the majority thinks “it cannot be said that Soyka’s action indicated anything except that he did not want an encounter with whoever was outside his apartment door,” the drawing of inferences from the testimony is the business of the trial judges who see and hear the witnesses. Judge Bryan ruled that Soyka’s behavior “lent color to the information which had been made available to the agents,” and it can hardly be asserted that this was clearly erroneous.