(dissenting in part):
There is no disagreement among the members of the panel as to the propriety of affirming the convictions of both Turner and Verdugo. The majority have, however, determined that the case as to Verdugo should be remanded to the District Court for resentencing. From this determination I respectfully dissent.
Two grounds of error are raised by Verdugo with respect to the alleged defects in the sentencing procedure. He first argues that he was improperly sentenced because of the failure of the trial *618judge to provide him with a copy of the presentence report prior to the time of sentencing. The second point raised by Verdugo is that the presentence report contained information obtained by means of an illegal search and seizure, and the consideration of this material by the judge violated his rights under the Fourth and Fifth Amendments.
In response to the appellant’s first claim of error, the majority concludes that it is not necessary to decide the question in this case, because Verdugo must be resentenced in any event for the reasons urged in support of the second ground of error.1 Since I do not agree that Verdugo must be resentenced for the reasons urged in support of the second ground of error, I' must also state my views as to why there is no merit to the first alleged ground of error.
The question whether the defendant should be accorded the opportunity to see and refute allegations made in presentence reports has been the subject of heated controversy.2 These discussions resulted in the 1966 Amendment to Rule 32 of the Rules of Criminal Procedure, which provides the sentencing court may disclose to the defendant or his counsel all or part of the material contained in the presentence report.
The 1966 Amendment to Rule 32 codified the case law. In the vast majority of cases which have considered this problem it has been held that there is no requirement in the Constitution or otherwise that the sentencing judge reveal this information to the defendant or his attorney.
If I were participating in a seminar for newly appointed judges and if I were asked my views, I would suggest that, as a matter of policy, a district judge, in the exercise of his discretion, make a copy of the presentence probation report available to the defendant and his attorney. But this is not a seminar. The function of a Court of Appeals is to determine questions of law. In the instant case the defendant has assigned as a ground of reversible error the failure to furnish him with a copy of the probation report before sentence. There was no error and that should end the matter. It is not for me as a member of this panel to catechize the sentencing judge nor, in the absence of abuse which amounts to error, to suggest his discretion should have been exercised in a different manner.
With respect to Verdugo’s second ground of error, the majority opinion engages in a lengthy discussion of the circumstances surrounding the search of Verdugo’s home which resulted in the discovery of large quantities of narcotics. This discussion is irrelevant to these proceedings and only serves to cloud the issue by injecting emotion into the argument. No one presently contends that the search and seizure were legal. A motion to suppress this evidence in the case against Verdugo was granted and the evidence was not used in determining his guilt. The question on appeal is whether evidence which admittedly cannot be, and was not, considered in determining giiilt, must also be excluded from consideration by the judge in determining an appropriate sentence for the convicted defendant.
The only authority (if it could be so characterized) cited by the majority for the proposition that the same Constitutional rights applicable to the determination of guilt are applicable to sentencing, is certain dicta of Judge Sobeloff in the case of Armpriester v. United States, 256 F.2d 294 (CA 4). From this slim reed the court is able to say that “Ours would seem an a fortiori case * * * ” To make this remarkable jump it is necessary to avoid numerous cases. This is accomplished by *619grouping a number of cases (see footnote 19 in the majority opinion) as support for the proposition that the scope of the sentencing judge’s inquiry is broad and then concluding that such a “simple generality” cannot be utilized to justify the use of illegally obtained evidence. The various cases grouped under that heading in fact demonstrate in specific situations that the sentencing procedure is entirely different from the determination of guilt; that Constitutional rights applicable at trial are not always applicable to the sentencing procedure, and that much specific evidence and other information not admissible at trial may be considered by the sentencing judge. Surely the term “simple generality” is a misnomer when applied to the clear and unmistakable authority pronounced in these eases.
Despite the fact that there is no authority, either Constitutional or statutory, granting appellate jurisdiction to review the trial judge’s exercise of discretion in the area of sentencing so long as the sentence is within the statutory maximum and no procedural errors are shown (Bowman v. United States, 350 F.2d 913, 917 (CA 9)) and notwithstanding the teaching of the Supreme Court (Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079) that the exclusionary rule has no application to the sentencing process, the majority seeks to burden this circuit with an innovation which can only result in confusion for sentencing judges.
In Williams v. New York, supra, the appellant was convicted of murder in the first degree and the jury recommended life imprisonment. A presentence report which contained much unfavorable matter with regard to the background and past criminal record of the appellant, was reviewed by the trial judge. The appellant was not permitted to either confront or cross-examine those persons who had provided the information disclosed in the report. The trial judge sentenced the defendant to death. The appellant argued to the Supreme Court that his rights under the Sixth and Fourteenth Amendments were violated when the sentencing judge considered the report without giving him the opportunity for confrontation and cross-examination. This argument was rejected by the Supreme Court. The Court noted that sentencing is entirely separate from the determination of guilt. In sentencing, the object is to obtain the fullest information on the background and character of the convicted defendant so that the interests of the defendant and of society may be protected by the imposition of an appropriate sentence. The Court went on to hold that the Constitutional rights of the defendant to confront and cross-examine were not applicable to the sentencing procedure.
Surely the type of Constitutional right involved has nothing to do with the basic principle that sentencing is, and should be, a separate process from the determination of guilt. The same reasons for applying different standards which guided the Supreme Court in Williams v. People of State of New York, supra, are applicable here. There is no reason to say that the Fourth or Fifth Amendment rights of this defendant have any higher standing than those Constitutional rights which have consistently been held inapplicable to the sentencing procedures. As was pointed out in Williams, the distinction bettveen sentencing and the determination of guilt was made to insure that the sentencing judge had the best available information before him. The information the majority would exclude in our case is just the sort of information which should be before the judge. This information is known to be reliable, whereas information obtained in the absence of confrontation and cross-examination is far less so. Yet, even with the less reliable information, the Supreme Court has held in favor of the broad inquiry by the sentencing judges. The right to confront and cross-examine is one of the most fundamental at trial, and yet it was not extended to the sentencing procedure. There is likewise no reason to extend the search and seizure protections to the separate procedure of determining sentence.
*620Under the order of the majority, Verdugo is to be resentenced without consideration of the seized evidence. Of course the Court does not say that the sentencing judge may not consider the statements made in the presentence report. The probation officer reports that Verdugo has a reputation as one of the major sources of heroin in the Mission District of San Francisco, and has built up a large organization distributing heroin for him. The report includes many statements as to Verdugo’s drug trafficking and other nefarious activities.
Where did the probation officer get this information? Did he interview law enforcement officers including those who searched Verdugo’s home without a search warrant? Did he talk to some of the narcotic buyers? Did he talk to some of Verdugo’s peddler employees? Did he observe the marked money and narcotics which were seized in Verdugo’s residence? Did he interview the proprietors and customers in the dives where Verdugo and his peddlers operated? Does the majority intend the judge who sentences Verdugo to hold a hearing contrary to the holding in Williams, supra, to determine the sources of the probation officer’s information — or is it still alright as long as it reaches the judge second-hand by way of hearsay?
Sentencing a defendant is not a pleasant task at best. To deprive a judge of information which would aid him in determining a just and proper sentence is intolerable. As the Supreme Court stated in Williams, at 249-250, 69 S.Ct. at 1084 “To deprive sentencing judges of this kind of information would undermine modern penalogical procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant’s life.”
No other circuit has cast this burden on the district judges and I do not agree that this one should — at least until this innovation has been considered by a court composed of all of the circuit judges.
. Notwithstanding this decision, Judge Browning has written a separate opinion supporting the position of the appellant.
. For arguments favoring and opposing disclosure, see notes of Advisory Committee on Rules appended to 1966 Amendment to Rule 32 of Federal Rules of Criminal Procedure (Title 18 U.S.C.A.).