(concurring):
I concur in the result. On a very close question, it seems to me that United States v. Harris, 403 U.S. 573, 91 S.Ct. *10032075, 29 L.Ed.2d 728 (1971), does tip the scales for a finding of probable cause. I do not believe, however, that Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and its requirement that an officer give notice of his purpose before bursting into a house, has been weakened as the majority apparently believes. The suggestion that Miller rests on the basis that the officer there spoke in a low voice, 357 U.S. at 303, 78 S.Ct. at 1193 is, I fear, wishful judicial thinking, for footnote 3 at 304 of Miller seems to me to make it plain that the failure to make a formal announcement of the purpose of police presence is the point on which that case turns. Nor is announcement of purpose a mere formality which may be disregarded at police whim. See Ac-carino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 462 (1949), Mr. Justice Brennan’s dissent in Ker v. California, 374 U.S. 23, 46-64, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), adds to, and does not detract from, Miller. His first exception referred to by the majority here speaks of “the officers’ authority and purpose," 374 U.S. at 47, 83 S.Ct. 1623 (emphasis supplied). Sabbath v. United States, 391 U.S. 585 (1968) and its footnote 8 at 591, 88 S.Ct. 1755, 20 L.Ed.2d 828, simply reiterate Mr. Justice Brennan’s exceptions mentioned in Ker v. California, supra.
Appellant Manning, however, did not raise this point below and, on the confused state of this record, adverted to in the majority opinion, I would not consider this “plain error” within Rule 52 (b), Fed.R.Cr.P.; see United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).