(dissenting) :
I dissent and adhere to the views which I expressed in the panel’s majority opinion.
I fail to see anything in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), that compels a different result. As the majority recognizes in its in banc opinion here, the issue in Harris was whether or not a law enforcement officer’s affidavit was sufficient to constitute probable cause for a federal magistrate to issue a search warrant, whereas the issue here is whether or not there was probable cause for a warrantless entry into a private dwelling in order to arrest and for the consequent seizure of the narcotics and attendant equipment.
To me, this distinction is significant because in the case of a search warrant, the law enforcement officer has to appear before the magistrate who can question him further and call for more information or clarification if he is not satisfied that the officer’s affidavit constitutes sufficient probable cause for issuing the warrant. Indeed, it is the intervention of an impartial judicial officer in deciding when probable cause exists that makes the search warrant an important safeguard against unwarranted intrusions by government agents into private dwellings. See United States v. Robinson, 325 F.2d 391, 394 (2d Cir. 1963). That safeguard, of course, is not present when the law enforcement officers themselves make the determination that they have probable cause for an entry in order to arrest. Hence, in my view, the test of probable cause required for entry without a warrant should be more stringently applied than that for obtaining a search warrant. Otherwise, private dwellings would be subject to warrantless invasions upon the law enforcement officers’ suspicion, with the scantiest sort of corroboration, that a crime was being committed inside, and the policy underlying the search warrant requirement could be subverted. As I pointed out in the panel opinion, the circumstances leading to the entry in this case, in my opinion, fell far short of those which would justify a warrantless intrusion.
Furthermore, the indicia of the unknown informant’s reliability in Harris *1004were, in any event, stronger than those here. For example, the informant in Harris made a statement against his own penal interest when he admitted his illicit liquor purchases; and such a statement, of course, is a good indication of an informant’s reliability. In fact, it was solely on this basis that Mr. Justice White joined in the Supreme Court’s judgment thus making the necessary five-man majority. There is nothing in the record here to show that the unknown informant made any such statement; and the indications of his reliability were very slight indeed. His information had been confirmed solely as to facts which by themselves were wholly innocent — Manning’s ownership of a car and his visiting at Audrey’s apartment— and not as to any fact tending to show that Manning was actually engaged in the distribution of narcotics.
At the very least, in such circumstances, we should remand the case for a further hearing on the identity and reliability of the informant, as we did in United States v. Robinson, supra, in order to give defense counsel the opportunity to cross-examine the government agents regarding that informant. If at that hearing the government could not introduce additional corroborating evidence so that the arrest might be supported by that other evidence, the government should be required to disclose the informant’s' identity or run the risk of having the arrest and subsequent search held invalid. Here, of course, it is possible that the purpose of such a further hearing would be frustrated because the informant is dead and thus cannot be produced and cross-examined himself. But for the Court today to uphold a warrantless entry based primarily upon the word of an unknown informant, untested as to any suspicious fact, without requiring any disclosure whatsoever, is, in my opinion, a dangerous undermining of Fourth Amendment rights.
The fact that the majority also relies on the agents’ hearing running, scuffling, and hurried conversation inside after they had knocked on the door and announced their identity does not persuade me. As I pointed out in the panel opinion, the response of the people inside to the knocking of persons identifying themselves as federal agents can hardly be said to constitute probable cause for entry into a private dwelling, when the agents had no prior knowledge of any suspicious acts to indicate that the persons inside might be dealing in narcotics, when the agents had failed to announce their purpose, and when there had been no face-to-face confrontation between them.