(dissenting):
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),1 the Supreme Court ruled that where proba*990ble cause for a search or arrest warrant is established through an informant’s tip, the affidavit presented to the issuing magistrate must show (1) that the informant is a credible person and (2) that the inferences drawn are based on fact and are reasonable.
In the instant case, a search warrant was issued on the basis of statements emanating from a 15-year-old tipster. The affidavit presented to the magistrate contained no evidence of the declarant’s credibility. The majority excuse this patent noncompliance with the first of Aguilar’s dual requirements through purported reliance on the language of the Second Circuit in U. S. v. Burke, 517 F.2d 377 (CA2, 1975), that “there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion where the information comes from an alleged victim of or witness to a crime.”
I am unable to join in the majority opinion. The decision of this court in U. S. v. Bell, 457 F.2d 1231 (CA5, 1972), requires us to recognize that there can be circumstances in which a person gives information to police which is used in obtaining a warrant but Aguilar and Spinelli will not be applied. Burke does not, however, fall within the circumstances set out in Bell. It carves out a new and unfortunate exception that is out of keeping with the underpinnings of Aguilar and Spinelli. Additionally, even if Burke is treated as correct, it is misapplied to the facts of this case.
Taking the second point first — application of Burke if accepted as correct — I do not read that decision to say that Aguilar and Spinelli standards are always limited to professional informers or that they never have application to “victims” and “witnesses.” Such an approach would sweep too broadly, too undiscriminatingly, and in disregard to the rationale of Aguilar and Spinelli. Burke does not purport to go that far — the reference to not applying Aguilar and Spinelli “in a wooden fashion” makes this clear. Nor does Judge Gee go that far— rather he says that sometimes Aguilar and Spinelli apply to victims and witnesses and sometimes they don’t, and for this case he draws a line at the “identified nonprofessional.” This has the advantage of convenience but little more than that.
“Identified nonprofessional” victims and witnesses come in all shapes, sizes and circumstances, and so do the offenses of which they declare knowledge. We can best see this by looking at Bell. In that case the arrest warrants were based on an affidavit reciting information given to police by three named persons who had witnessed events immediately preceding or following an armed robbery and information given the affiant by three named police officers that tended to tie together and corroborate the information given by the three persons at or near the robbery scene. We upheld the warrants despite the affidavit’s failure to evidence declarants’ credibility. Judge Clark, writing for the court, declined to hold Aguilar and Spinelli applicable to the “identified bystander” or the “victim-eyewitness” to a crime. 457 F.2d at 1238. Following this he stated:
Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance would also affect their credibility. None of these considerations is present in the eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. (Footnote omitted.)
Id. at 1238-39. Thus the decision does not rest upon an overbroad characterization of ambiguous status, such as “witness,” but precisely drawn criteria that relate to indicia of reliability. The informants and the persons identified shared no relation apart from the “actor-detached observer” roles arising directly from the armed robbery. The ages of the three witness-informants were not given, but two bore the prefix “Mrs.,” so *991we may infer that at least these two were not children. In addition, the number of persons willing and able to supply corroborative identification tips tended to establish reliability. The possibility of misuse by police of information received was too remote to arouse serious concern.
The 15-year-old youth in the instant case was neither the “pure” nor fortuitous bystander, observing events with which he had no connection, nor the “victim-eyewitness” to which Bell referred. Rather he falls within the very class of persons from which Judge Clark carefully excluded the declarants there involved. He was a person “involved with the miscreant[s] or the crime.” 457 F.2d at 1239. He was sufficiently involved and trusted by the defendant to the extent that the defendant allegedly invited him to participate in a violent felony, told him that he had successfully pulled off the job, and showed him a portion of the loot. His connection with the events was such that there was risk of his tip’s having been given to exculpate himself or to curry police favor useful in the event he became a suspect (principal or accessory). The information he gave police was not corroborated by statements of others. Yet his statements were the crucial link in establishing probable cause for the warrant. None of the indicia of reliability present in Bell exists here. All signs point in the other direction.2 Under Burke’s standards, Aguilar and Spinelli should apply. Judge Gee’s mechanical application of a case which by its own terms was not intended to be so applied merely circumvents what Bell teaches us is the real issue — reliability. The indicia of reliability approach was used by this court in U. S. v. Barfield, 507 F.2d 53 (CA5, 1975), which held sufficient an affidavit disclosing information from a person not stated to be a reliable informer because the person was a co-defendant and co-participant in the robbery and his statement was against his penal interest, which supplied indicia of reliability.3
At least Judge Gee’s opinion has the merit of candor. On other facts he might urge that the statement of one claiming to be a nonprofessional victim of or witness to an alleged offense4 may be the basis for a warrant without any further showing of reliability, unless it affirmatively appears from other revealed information that the person who gave the statement is not reliable — in short, status alone [or, more accurately, a claim of status] carries its own credentials of reliability, which is prima facie established unless and until other revealed information casts doubt on reliability. Thus, in Barfield, supra, the status of the source person as co-defendant and co-participant made his self-inculpatory statement sufficiently believable.5 Reliability may also be drawn from the source person’s official status.6 However, the facts here do not permit application of a theory of prima facie reliability not sufficiently put in question. The source person’s youth, his involvement with the alleged miscreant, his possible motive of self-exculpation, and the lack of corroboration, cast doubt on his reliability. Thus, Judge Gee must, and does, take the position that the [assertion of] status as nonprofessional victim or witness is sufficient even if other and revealed information tends to show that the source person is nonreliable. Thus, the [assertion of] status is not merely *992prima facie but conclusive. Or to put it another way, reliability is an irrelevant consideration when [one claiming to be] a nonprofessional victim or witness is the source of information. I hope that we would hold insufficient a warrant based on information from an identified nonprofessional who asserts he is a victim or witness and is revealed to be either six years old, dead drunk, standing 600 yards from the alleged miscreant that he identifies, or a pathological fantasizer. A magistrate could not validly issue a warrant based on first-hand information of a police officer if the revealed facts throw serious doubt on its reliability. The rule cannot be less demanding for a warrant based upon hearsay.
I turn to the first question — whether Burke is correct in its premise that Aguilar and Spinelli were “addressed to the particular problem of professional informers.” It seems to me that the Aguilar court was concerned with a larger problem which includes — but is hardly limited to — the use of professional informants. It was attempting to regulate the complex realities of investigation and prosecution of “victimless” crimes and possessory offenses. Where the forbidden act is consensual, the victim, if any, seldom seeks prosecution. Where the crime is perpetrated in solitude or secrecy, there will be no witness to come forward and accuse. In such a context, informants necessarily are the primary vehicle through which police work is accomplished. See Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 59-60 (1971).
Where informants are necessary, their utilization carries a risk of prevarication, for the informant may be under such pressure or feel such desire to supply incriminating information that he will invent or embellish facts before he allows himself to fail at his task. It was to eliminate even the possibility of such abuse of power — which could “make a mockery of the warrant process” — that Aguilar and Spinelli were written. Note, The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 181 (1969); see also 85 Harv.L.Rev. at 61. The potential for abuse of power by informants is not restricted to paid tipsters. Inducement to invent or to embellish facts may be quantitatively different as between paid and unpaid informants, but it is not necessarily qualitatively distinct, nor is untruthfulness of demonstrated greater or lesser incidence in those two classes.
Bell was not a “victimless” crime but an armed robbery witnessed by a number of persons willing and able to identify the assailants. Such is not a situation in which the use of informants is necessary or usual to police work, unlike the passive or undercover police work the Supreme Court considered in Aguilar.
In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), an informer’s tip provided the impetus for defendant’s arrest and the search incident thereto. The complaint on which the arrest warrant was issued did not refer to the informer but rested on conclusory statements by the sheriff. The Supreme Court held the complaint inadequate and also rejected a contention that the informer’s description of defendant and the car in which he was arrested supported a warrantless, probable cause arrest. The status of the informer was neither revealed nor inquired into by the Court, which re-emphasized Aguilar and Spinelli, and there is nothing to suggest he could not have been a mere bystander who had witnessed the crime. Yet the Court’s implication is that whatever the informer’s status, the Aguilar-Spinelli standards apply when either an arrest warrant or a probable cause arrest has its factual basis in an informer’s tip.
Similarly, in U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1973), neither the affidavit nor the opinion indicated that the informer was previously known to or used by the police as an informer. The Sixth Circuit relied on Aguilar and Spinelli to hold the affidavit insufficient. Had the Supreme Court viewed those decisions as establishing standards applicable only to professional informers, the Harris facts warranted at least an initial inquiry into the inform*993er’s status. Instead the opinion acknowledged applicability of Aguilar and Spinelli but rationalized noncompliance with their commands. Chief Justice Burger’s language explaining the grant of certiorari in Harris further evidences an intent that nonprofessionals not be excluded in a plenary matter from the AguilarSpinelli requirements. He defined the issue as involving the “informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity.” Id. at 575, 91 S.Ct. at 2078, 29 L.Ed.2d at 729. That description includes nonprofessionals, bystanders, and victims as well as paid informers. Even the dissenting opinion’s framing of the issue seems to acknowledge inclusion of nonprofessionals within the rule, referring to “unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers.” Id. at 586, 91 S.Ct. at 2083, 29 L.Ed.2d at 735.
Arguably these cases tend to reject the carving out of eyewitnesses and victims from Aguilar and Spinelli. At least they show that the distinction now made between professional informers and other persons who give information to the police has not been apparent to the Supreme Court. Nor was such a distinction apparent to this court in Texas v. Gonzales, 388 F.2d 145, 148 (CA5, 1968), a post-Aguilar case, where the search warrant was based on a tip that narcotics were being peddled at a particular address and that the informer had seen a person who lived at that address pick up a small package from the alley. Without indicating the informer’s status as a professional or bystander witness, we held the warrant invalid, saying, “there was nothing to suggest that the informer was reliable or that his tale was credible.”
I would affirm the holding of the District Judge who held the affidavit insufficient because it lacked information as to the reliability of the 15-year-old tipster.
I would also affirm the District Judge on the issue of misdescription. This is a factual inquiry, made on a case-by-case basis. The District Judge below had' a complete record before him. He considered this matter twice. Following the first hearing he granted the motion to suppress and the government appealed. On request of the government we remanded to permit, in the District Court’s discretion, the receipt of additional evidence from the government. The District Judge admitted the additional evidence and again granted the motion to suppress. He heard the testimony of one of the executing officers and the brother of the defendant (who lived in apartment 70 with the defendant) and received the affidavit of the manager of the apartment complex. He had before him both a diagram and a large aerial photograph of the area. He is a resident of Baton Rouge. In these circumstances the District Judge was in a much better position to reach a correct decision than appellate judges far removed from the scene. His decision regarding misdescription was not plainly erroneous.
I respectfully dissent.
. See also Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
. The single factor that tends to make this tipster believable is the fact that the gun was found where he said it was. If one thing is clear, it is that this discovered evidence cannot validate the warrant.
. Compare the present case where the tipster’s statement is self-exculpatory.
. Of course, one claiming to be a nonprofessional victim or witness to an offense may prove to be neither victim, witness nor nonprofessional when the facts are in. Indeed, there may have been no offense at all.
. Accord, U. S. v. Viggiano, 433 F.2d 716 (CA2), cert. denied, 401 U.S. 938, 91 S.Ct. 934, 28 L.Ed.2d 219 (1971); U. S. v. Brown, 455 F.2d 1201 (CA9, 1972).
. Stone v. U. S., 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968) (unnamed Special Agent of Internal Revenue Service).