(dissenting).
We respectfully dissent.
As late as May, 1972, this court in LeDent v. Wolff, 460 F.2d 1001 (8 Cir. 1972), acknowledged that the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), are “still controlling.” The majority of this court today discards the second prong of the Aguilar test, i. e., whether the affidavit discloses the underlying circumstances as to how the informant gained his information so as to demonstrate sufficient probability of credibility to allow a search. The majority opinion does so because it senses an “inclination of the present Supreme Court to relax the standards by which the credibility of informers tips are to be judged.” We refuse to speculate as to what that court may do in the future preferring to rest our judgment on what it has done to date.
Spinelli v. United States, supra, did not lay down any new rule of law. To “overrule” Spinelli might change the result there reached but hardly would alter the viable principles of Aguilar which still rationally and logically remain the law. Spinelli did very little more than offer explication to the principles of Aguilar under a different factual setting.
The majority opinion suggests that United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) has destroyed the underpinnings of the “underlying circumstance” rule of Aguilar. We respectfully suggest this misreads Harris and its relationship to Aguilar and Spinelli. The search warrant in Harris was attacked on the ground that the reliability of the informant was not established. The plurality opinion of Chief Justice Burger upheld the warrant finding (1) that sufficient factual foundation for believing the informant was presented (Justice Stewart concurring) and (2) that since the informant’s statement was against his own penal interest, additional basis for crediting the tip was provided. (Justice White concurring.) The Chief Justice, relying upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), distinguished Spinelli saying:
“The affidavit in the present case, like that in Jones, contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant — a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information. Both recite prior events within the affiant’s own knowledge . . . indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was ‘known . . . as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.’ Spinel-li, supra, at 422 [89 S.Ct. 584].” (Emphasis ours.) United States v. Harris, supra, at 581, 91 S.Ct. at 2081.
The only qualification in Harris of Spinelli is found in the plurality opinion where four justices discounted the “dictum” in Spinelli that the defendant’s reputation cannot be used in weighing probable cause. 403 U.S. at 582, 91 S.Ct. 2075 (1971).
However, what is germane here is that the Aguilar test requiring the disclosure of underlying circumstances which show that the informant has gained his information in a reliable way, still must be applied. The trial court found this information missing. The only circumvention of this rule is found *817in the factual setting of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1957). See, e. g., United States v. Mitchell, 425 F.2d 1353 (8 Cir. 1970), cert. denied, 400 U.S. 853, 91 S. Ct. 85, 27 L.Ed.2d 90. However, the clear admonition in Spinelli has never been overruled or even doubted. It was there said:
“A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer’s tip which — even when partially corroborated — is not as reliable as one which passes Aguilar’s requirements when standing alone.
“. . .In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. at 415-416, 89 S.Ct. at 589.
It is this caution which should control our decision here.
The fallacy of the majority’s ruling is that it assumes, without discussion, the conclusory charge that the defendants had burglarized the house. The affidavit is without any detail which discloses that these informants had gained this information in a reliable way, and unlike Draper it is without any description of the suspects or any projections concerning their future activities. No detailed information is provided that these men (1) placed the guns in a large paste board box or (2) that they would be at Magnuson’s apartment with such a box at the time and at the place where they were later observed and found. There is no nexus made by the informants between the conclusory statement that the men committed the burglary and that they might be located at a certain time and place which might have provided further credence to their original Charge. Cf., Draper v. United States, supra. The fact that the informants stated that the men used a certain car with license plates belonging to Magnuson hardly corroborates the informants’ charge that they had committed the offense. This does not differ significantly from the unlisted telephone number rejected in Spinelli.1
There are undoubtedly some that feel that Aguilar and Spinelli impose technicalities which unduly restrict effective police enforcement. We are not in this group. Spinelli and Aguilar impose the simple common sense requirement that the “unidentified reliable informant” reveal how he knows that the accused participated in illegal activities. Draper relaxes this requirement only where the informant describes in sufficient detail future activities which subsequently occur. The rationale of Draper is that where the affidavit discloses sufficient corroborative factors which demonstrate a guarantee of personal knowledge of the “modus operandi” of the criminal activity, the necessary trustworthiness as to the source of the information, as distinguished from the reliability of the informant, is provided. If we stay with these simple rules we will not impede effective law enforcement. If we chip away at them, we will not only erode the rights of all citizens under the Fourth Amendment but we will, as well, confuse law enforcement officers in the performance of their duties.
. The majority of our court erroneously gave credence to this information, however, we were overruled by the Supreme Court. Mr. Justice Harlan observed:
“Here, the only facts supplied were that Spinelli was using two specified telephones and that these phones were being used in gambling operations. This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar.” Spinelli v. United States, 393 U.S. at 417, 89 S.Ct. at 589.