(dissenting).
I respectfully dissent. In my view, the majority errs in holding that the affidavit was sufficient to justify the issuance of the warrant to search the defendant’s home. Certainly, the reliable informant’s statement that she observed a large number of brownish tablets in the apartment was not sufficient in and of itself to establish probable cause for believing that the tablets were marijuana. Nor was the additional statement by an occupant of the home to the informant that the tablets were “THC” sufficient for that purpose. The majority justifies crediting the statement on the theory that it was adverse to the penal interest of the declarant, i. e., there was probable cause for believing that the occupant was in constructive possession of marijuana and thus implicated in the crime.
This theory assumes not only that the occupant knew the tablets were marijuana but also that every occupant of a dwelling in which contraband is found is probably guilty of possessing it. None of the cases cited by the majority support the latter proposition. In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the declarant was a purchaser of illicit materials. In United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973), the declarant was more than an occupant. She was the wife of the defendant and had full knowledge of prior narcotics transactions between her husband and the government agent. Additionally, she “in words and conduct assumed more than a passive role.”
Nor is there support for the majority view in Rule 804(b)(3) of the Federal Rules of Evidence for United States Courts and Magistrates, Pub.L. No. 93— 595 (Jan. 2, 1975). That rule requires that a statement to be admissible must so far tend to subject the speaker to criminal liability that a reasonable person in the speaker’s position would not have made the statement unless he or she believed it to be true. Here, there is nothing in the affidavit that would indicate that this occupant was one who reasonably believed that he or she possessed the tablets, let alone believe that criminal liability would attach for their possession.