(dissenting):
The result reached by the majority seems to me very grievous. Under it a rather high-level heroin dealer — not a mere street pusher — goes free, unpunished and as a practical matter likely unpunishable, for acts in which he was caught red-handed in the course of a search authorized by a conscientiously-issued warrant. He does so, although the magistrate was furnished sufficient facts for an affidavit amply supporting the issuance of the warrant, solely because under the pressure of events all of these facts were not reduced to affidavit form as required by Rule 41(c).1 The warrant being infirm, the majority brings the exclusionary rule into play to invalidate Acosta’s conviction and sentence. If this be the law’s demand it must, of course, be honored. Since I do not think it is, I respectfully dissent.
1. The Deficiencies of the Affidavit.
Aguilar2 requires a policeman’s affidavit to set forth
some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was “credible” or his information “reliable.” 378 U. S., at 114, 84 S.Ct., at 1514. (emphasis added).
Beyond per adventure the affidavit in this case fulfils the first of these requirements, and, to my mind, it complies on its face with one of the disjunctive requirements of the second: showing a basis for the policeman’s conclusion that the informant’s “. . . information [was] reliable.” It is admittedly somewhat weak on the informant’s intrinsic credibility, though it does not seem to me a very strained construction of the reference to her as being Detective Maya’s confidential informant as indicating he placed some credence in her, or of the description of her as having helped Federal Agents in initiating cases as forming a sufficient basis for the inference that the cases were not disasters — as indeed, in fact, they were not. I do not place much weight upon the presence or absence in the affidavit of such magic words as “reliable” or “accurate,” which cost little to add and mean little more. Transmitting such signals as these, we may expect affidavits which smell of the lamp and smack of common-law pleading.
At any rate, under Aguilar it is not necessary that the informant be shown to be credible; the alternative and sufficient course of showing circumstances justifying a conclusion that his information in this instance is reliable is available. Even paranoids sometimes have enemies, and liars sometimes tell the truth.
Here there are at least strong hints of the informer’s reliability. In addition, the affidavit is specific and detailed, telling just about all there was to tell about Acosta and his activities as then *1336relevant to his traffic in misery.3 “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). Had such an inference been made, it seems the affidavit in this case would clearly have supported it.
The trouble is our magistrate did not make this requisite inference, or rather declined to make it solely from the proper matter furnished him. Not content with the affidavit, even as supplemented at his suggestion, he went on to require matter beyond it — the informant’s name —and only then, when he recognized her as the source of earlier information personally known to him to have been reliable, was he satisfied that a warrant should issue.4
A magistrate’s “. . . determination of probable cause should be paid great deference by reviewing courts.” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969); see Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). By a parity of reasoning, his refusal to do so until satisfied by consideration of material technically improper, as here, has weight. I am therefore unable to say with any assurance, in view of his testimony quoted at note four above, that he would have issued the warrant without the consideration of improper matter. Its basis was therefore infirm, both constitutionally as based in part on unsworn matter5 and procedurally, as relying on matter not reduced to affidavit form. Fed.R.Crim. P. 41(c). Thus though I think the majority wrong in holding, as I believe it does, that this affidavit is an insufficient basis for a magistrate’s inference of probable cause, I agree that the magistrate’s action in issuing the warrant was technically erroneous. Unlike the majority, however, I do not think this concludes the matter.
2. The Inapplicability of the Exclusionary Rule.
It is now clear both that the exclusionary rule represents, not a constitutional right, but a judge-made remedy to secure one 6 and that its prime function is to deter future overzealous police conduct by removing the incentive to it.7 Moreover, “. . . [t]he deterrent purpose of the exclusionary rule neces-arily assumes that the police have engaged in willful, or at the very least, *1337negligent conduct which has deprived the defendant of some right.” Michigan v. Tucker, 417 U.S., at 447, 94 S.Ct., at 2365, 41 L.Ed.2d, at 194 (emphasis added).
I search this record in vain for such conduct. Informed that Acosta was at that moment preparing his dreary elixirs for sale, the detective hopefully entered his essay in the cosmic contest. The magistrate, unsatisfied but plainly disturbed, questioned him further and satisfied himself in a good faith which shines in the record that probable cause existed to believe him and his informant. “[T]his situation furnishes no occasion to apply the exclusionary rule to bar the evidence of . criminality that was obtained in executing the warrant. [The detective] acted properly in going to the magistrate and seeking a warrant. [The magistrate] acted properly in calling for additional information to demonstrate credibility. Thus, the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.” United States v. Hill, 500 F.2d 315, at 322 (5th Cir. 1974) [No. 73-1098].
Correctly noting that Rule 41(c) has been amended to require matter supplementing an affidavit to be made part of it since presentation of the affidavit in Hill, the majority opinion seeks to dispose of that holding as a precedent on that basis. I do not think it will go away so easily. It is true that the Rule’s amendment is one basis of the Hill decision. It is also true, however, that the language quoted above appears immediately following the court’s conclusion “. . . that the warrant was duly authorized” and constitutes an alternate ground of the decision: that even had the warrant not been duly authorized, “. . . this situation furnished] no occasion to apply the exclusionary rule . . . [since] the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.” Ibid.
I would uphold the district court’s implied finding that this police conduct was neither wilful nor negligent and furnished no proper occasion for application of the exclusionary rule. Nor would I expand the rule to “deter” magistrates from failing to record matter upon which they rely, conceiving that they will obey the mandates of reviewing magistrates, such as we, when these are understood. At the least, I would remand to the district court for a fact finding whether the conduct of the police in this case was either wilful or negligent, and be guided accordingly. As here it was plainly at worst inartful, I would affirm.
3. The Sentencing Procedure.
So concluding, I would reach the question of the sentencing procedure employed by the court. Two sentencing hearings were held. At the first of these, the court gave Acosta to understand that if he would cooperate with the authorities by revealing his drug sources this would redound to his credit, recessing to permit him to do so.8 At the second hearing the Court, noting that the “Probation Officer doesn’t think you have shown any desire to cooperate,” passed a heavy, though not a maximum, sentence.
While I can only sympathize with the court’s efforts to reach the drug hierarchy through Acosta, the record suggests the possibility that the court may actually have taken Acosta’s refusal to cooperate into account in sentencing. If so, under such authorities as Thomas v. United States, 368 F.2d 941 (5th Cir. 1966) and United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974), the sentence should be vacated and a new sentence imposed without consideration of this refusal. As we said in Rodriguez,
In Thomas v. United States, . we held it a clear abuse of discretion for the sentencing judge to threaten the man before him with a more severe sentence if he did not “come clean” and admit his guilt. As we explained, the defendant retains *1338important Fifth Amendment rights after the jury reaches a verdict, rights which must not be made the price of sentencing leniency. The court cannot place the defendant in the dilemma of either abandoning his Fifth Amendment rights or risking a harsher sentence.
True it is that in both cases the court was urging the convicted defendant to acknowledge only his own guilt, but I am unable to see how Acosta could have implicated others without, at least tacitly, admitting his own complicity. I would therefore affirm his conviction, but vacate his sentence and remand for resentencing.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, and WISDOM, GEWIN,' BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
BY THE COURT:A member of the Court in active service having requested a poll on the application for rehearing en bane and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk shall set a briefing schedule for the filing of supplemental briefs.
. As Mr. Justice Fortas might have said, he failed the essay contest. Spinelli v. United States, 393 U.S. 410, 438, 89 S.Ct. 584, 600, 21 L.Etl.2d 637 (1969) (dissent) “A policeman’s affidavit should not be judged as an entry in an essay contest.”
Among the facts, known or made known to the magistrate, but not reduced to affidavit form, were the name of the informant, that she had furnished accurate information which resulted in a heroin arrest not a month earlier, and that her declarations were against her own penal interest.
. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
. The address where he was, who he was, his age and ethnic group, where in the house Hie contraband was located, that he was in the very act of diluting and packaging it for street sale, and that Hie informant had seen it there with her own eyes and knew it was still there.
It is interesting to compare this affidavit with the relevant portion of that in Aguilar bearing in mind that three Justices thought even it sufficient:
Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law. 878 U.S., at 109, 84 S.Ct., at 1511.
If the majority are correct in their appraisal of this affidavit, we have indeed come a long way since Aguilar.
. As he testified at the suppression hearing: . . . once I learned the name of the informant I immediately reviewed all of thesej details about the informant’s past reliability and on that basis, in addition to the information which Agent Licon said he could .swear to under oath about the informant having said she had seen heroin there that day and knew it to be there, at that point T agreed to issue the search warrant. At that- point I became convinced that this was a reliable informant and Hie search warrant should issue, (emphasis added).
. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).
. United States v. Calandra, 414 U.S. 338, at 347, 94 S.Ct. 613, at 619, 38 L.Ed.2d 561, at 571 (1974). Indeed, that is the sole suggested function of the exclusionary rule which could conceivably apply here. The others which have been advanced, avoidance by the judiciary of “the taint of partnership in official lawlessness” and maintenance of "the imperative of judicial integrity,” United States v. Calandra, 414 U.S. 338, at 357, 94 S.Ct. 613, at 624, 38 L.Ed.2d 561, at 576-578 (1974) cut no figure in this fact situation.
. Michigan v. Tucker, 417 U.S. 433, at 447, 94 S.Ct. 2357, at 2365, 41 L.Ed.2d 182, at 194.
. “THE COURT: ... I am sure you could help clear up some of this if you were of a mind to do so. Of course if you are not of a mind to do it, it doesn’t indicate to the Court that you are on the road to rehabilitation. ... I wish you would talk to the Probation Officer about this. ... I hate to see as good a mind as you have got be wasted. Talk to him and let’s see if we can’t do something.”