(dissenting):
The search warrant in this case was issued by a United States magistrate sitting in the Eastern District of New York, who, before he assumed office, took the same oath to administer justice as did the judges of this Court. 28 U.S.C. §§ 631(f), 453. The proper role for a reviewing court is to show deference to a determination of probable cause made by such a magistrate, United States v. Rahn, 511 F.2d 290, 292 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42, 44 U.S.L.W. 3201 (October 7, 1975); United States v. DePugh, 452 F.2d 915, 921 (10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805 (1972), with any doubt being resolved in favor of upholding the search warrant he issued. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Iverson v. North Dakota, 480 F.2d 414 (8th Cir. 1973), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1974); Griffin v. Hudson, 475 F.2d 814, 815 (6th Cir. 1973).
We have held that in close cases the very fact that a magistrate found probable cause is itself a substantial factor tending to uphold the validity of a warrant. United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960); United States v. Freeman, 358 F.2d 459, 462 (2d Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966). We have also said that “one of the best ways to foster increased use of warrants is to give law enforcement officials the assurance that when a warrant is obtained in a close case, its validity will be upheld.” United States v. Lewis, 392 F.2d 377, 379 (2d Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 710 (1968). In United States v. Desist, 384 F.2d 889, 897 (2d Cir. 1967), aff’d, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), we said that warrants issued by an independent magistrate will be examined less rigorously than searches without a warrant. Instead of following this oft-stated and salutary rule, the majority has, I fear, examined the warrant and supporting affidavit herein with the same “microscopic intensity” they would use if it were a municipal bond, United States v. Pond, 523 F.2d 210, 214 (2d Cir. 1975), or a trust indenture, United States v. Desist, supra, 384 F.2d at 897.
There is no magic formula which a magistrate follows in determining whether there is probable cause for the issuance of a search warrant, and precedent is of little value. The existence of probable cause depends on the facts and circumstances of each particular case, and decided cases are helpful only in declaring the general rule. United States v. Ramirez, supra, 279 F.2d at 714. The affidavit which is submitted to the magistrate is usually drafted by a non-lawyer in the course of a rapidly moving criminal investigation and should be tested in a common-sense and realistic fashion. United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741; United States v. Lewis, supra, 392 F.2d at 379; United States v. Manfredi, 488 F.2d 588, 599 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Wong, 470 F.2d 129, 131 (9th Cir. 1972); Iveson v. North Dakota, supra, 480 F.2d at 418. A hypertechnical reading should be avoided. United States v. Spach, 518 F.2d 866, 872 (7th Cir. 1975); United States v. Holliday, 474 F.2d 320, 321 (10th Cir. 1973). Reasonable inferences from the facts stated are not *37precluded. United States v. Pond, supra, 523 F.2d at 213. Finally, and most importantly, the magistrate need not be convinced of the existence of the evidence sought to be uncovered by the search. It is sufficient if there is a substantial basis for him to conclude that it exists. United States v. Burke, 517 F.2d 377, 381 (2d Cir. 1975).
Using the above criteria as our guide, let us now put ourselves in the position of the magistrate in the instant case and decide whether we, as prudent persons, would believe that an offense was being committed on defendants’ premises. McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Would the flags fly and the rockets go off when we read that Mr. Athanasiou, an illegal alien, had been living for one and one-half years with eleven other persons in “six (6) foot by six (6) foot cubicles” in the basement of defendants’ restaurant? Or, would we simply “ho-hum” this information by saying, as does the majority, that this “is not inconsistent with traditional employers’ past treatment of law-paid lawfully admitted immigrants”? (Emphasis supplied).
Would we recognize that the information supplied by Mr. Athanasiou is “toto coelo removed from a ‘meager report’ that ‘could easily have been obtained from an offhand remark heard at a neighborhood bar’, as to which prior history of providing accurate information is required, Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969)”? United States v. Burke, supra, 517 F.2d at 381; United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975). Would we be appreciative of the fact that Mr. Athanasiou was not an unknown informant passing on idle rumor or irresponsible conjecture but was, himself, a confessed participant in and victim of a crime allegedly taking place on defendants’ premises? United States v. Burke, supra, 517 F.2d at 380; United States v. Miley, 513 F.2d 1191, 1204 (2d Cir. 1975). Would we agree that an admission against penal interest is a “significant, and sometimes conclusive, reason for crediting the statements of an informant”? Armour v. Salisbury, 492 F.2d 1032, 1035 (6th Cir. 1974); United States v. Mahler, 442 F.2d 1172, 1175 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); Agnellino v. New Jersey, 493 F.2d 714, 726 (3d Cir. 1974).
Would we ignore the fact that, during the past five years, at least eleven named illegal aliens had been apprehended on defendants’ premises? Would we consider it unusual that Mr. Athanasiou, himself an illegal alien residing in defendants’ basement, “knew” that six other people with whom he had resided in that basement for one and one-half years were also illegal aliens? Would we consider Mr. Athanasiou, illegally living in defendants’ basement, a “stranger” to the other illegal aliens with whom he resided in such close quarters for eighteen months, so that none of them would reveal their similar illegal status? Would we completely ignore the commonly accepted truism that “birds of a feather flock together”?
If we answer all these questions as does the majority, we would not issue the warrant. However, if we do not, and if we recognize that “only a probability of criminal activity is necessary for there to be probable cause”, United States v. Gimelstob, 475 F.2d 157, 160 (3d Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 491 (1973), we would issue it, and properly so. The fact that I am dissenting indicates what my own answers would be.
The Nature of the Sanction
My brothers correctly hold that the privilege of overruling Supreme Court decisions should ordinarily remain with that court. However, having professed our adherence to this rule, we are duty bound to see that our pronouncements concur with those of the majority of the members of that Court. Moreover, we need not wait for the proverbial “brown cow” case to be decided before moving in the same direction as that majority.
In United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), *38Mr. Justice Powell, speaking for the majority, said of the exclusionary rule:
In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
This Court said substantially the same thing in United States v. Burke, supra, 517 F.2d at 386 n.12:
In contrast to cases involving confessions or identifications, where exclusion not only may tend to enforce decent police practices but may prevent the introduction of unreliable evidence, exclusion in Fourth Amendment cases generally can serve only the former function.
We have recognized that there is a growing disenchantment with the exclusionary rule, United States v. Artieri, 491 F.2d 440, 446 (2d Cir.), cert. denied, 417 U.S. 949, 95 S.Ct. 142 (1974), and such disenchantment is particularly apparent when it is applied in cases such as this. We have stated that the rule is a “blunt instrument, conferring an altogether disproportionate reward not so much in the interest of the defendant as in that of society at large.” United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970). Should we not, then, look at the latest decisions of the Supreme Court to see whether it is moving away from the harshness of this rule?
In Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974), Mr. Justice Rehnquist, speaking for the court, said:
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
This language is peculiarly apposite to the situation with which we are dealing and is, I think, a signpost indicating the direction in which we should be traveling. The statement of the majority that “there is no reason to assume that the [exclusionary] rule does not help to deter unconstitutional searches” is a rather weak argument against so doing.
The Court in Tucker also stated at 448, 94 S.Ct. at 2366:
Whatever deterrent effect on future police conduct the exclusion of those statements may have had, we do not believe it would be significantly augmented by excluding the testimony of the witness Henderson as well.
and at page 451, 94 S.Ct. at 2367:
To extend the excision further under the circumstances of this ease and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.
Mr. Justice White, in concurring, said at page 461, 94 S.Ct. at 2372:
Miranda having been applied in this Court only to the exclusion of the defendant’s own statements, I would not extend its prophylactic scope to bar the testimony of third persons even though they have been identified by means of admissions that are themselves inadmissible under Miranda. The arguable benefits from excluding such testimony by way of possibly deterring police conduct that might compel admissions are, in my view, far outweighed by the advantages of having relevant and probative testimony, not obtained by actual coercion, available at criminal trials to aid in the pursuit of truth.
If we are not yet prepared to follow in the direction in which Tucker indicates the Supreme Court is traveling, we should not resolutely set our faces in the opposite direction. I respectfully dissent from the *39opinions of my brothers which appear to me to do exactly that.1
. Were I not dissenting, I would nonetheless disassociate myself from the majority’s remarks concerning “magistrate-shopping”, “patronization by the police of lenient or ‘rubber-stamp’ justices of the peace” or “least demanding” or “most lenient” magistrates. The majority’s implication that justices of the peace and other elected state officials who are entitled to issue search warrants are not honorable and dedicated men does them a grave disservice. Moreover, the majority’s willingness not to assume that United States magistrates are “necessarily prone” to act as rubber stamps is damning with exceedingly faint praise. The concept of unscrupulous police and amenable magistrates being thwarted in their conspiratorial aims only by our vigilance has little basis in actual fact and certainly none in this case.