(concurring and dissenting) with whom
Judges JOHN W. PECK and McCREE join.I concur in the holding that this case is not moot, but respectfully dissent from the reversal of the judgment.
The judicial preference for warrants and for rules which encourage officers to seek *517them instead of conducting warrantless searches is universally recognized. Thus it has been held that the determination of an impartial magistrate on the issue of probable cause is entitled to “great deference.” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Coury v. United States, 426 F.2d 1354, 1356 (6th Cir. 1970). However, such a determination is not conclusive, but is subject to review under standards which have been variously stated by this court. In Evans v. United States, 242 F.2d 534, 536 (6th Cir.), cert. denied, 353 U.S. 976, 77 S.Ct. 1059, 1 L.Ed.2d 1137 (1957), we stated that the magistrate’s determination of probable cause is “conclusive unless his judgment is arbitrarily exercised.” See also United States v. Nicholson, 303 F.2d 330, cert. denied, 371 U.S. 823, 83 S.Ct. 43, 9 L.Ed.2d 63 (6 Cir. 1962); United States v. Plemmons, 336 F.2d 731 (6 Cir. 1964); United States v. Gosser, 339 F.2d 102, cert. denied, 382 U.S. 819, 86 S.Ct. 44, 15 L.Ed.2d 66 (6 Cir. 1964); United States v. Jordan, 349 F.2d 107 (6 Cir. 1965); United States v. Arms, 392 F.2d 300 (6 Cir. 1968); DiPiazza v. United States, 415 F.2d 99 (6 Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971).
The words “arbitrarily exercised” are not defined in our opinions. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court, in confirming that an affidavit for a search warrant may be based on reliable hearsay rather than personal knowledge of the affiant, stated the test for a magistrate’s determination of probable cause as follows:
But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient. Id. at 271, 80 S.Ct. at 736.
Almost identical language was used in Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828, 11 L.Ed.2d 887 (1964), where the Court said—
We believe that there was substantial basis for the Commissioner to conclude that stolen furs were probably in the petitioner’s basement. No more is required.
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in dealing with the general standard of review the Court said, “Thus, when a search is based upon a magistrate’s, rather than a police officer’s determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,’ Id. at 111, 84 S.Ct. at 1512 [quoting from Jones v. United States, supra, 362 U.S. at 270, 80 S.Ct. 725,] . . ” and then recited the language from Jones previously quoted which established the “substantial basis” test.
It thus appears that a reviewing court may not hold that a magistrate’s judgment has been arbitrarily exercised if there is substantial basis for the magistrate to conclude that the property to be searched will probably produce evidence of the crime described by the one seeking the warrant. This is precisely what I find lacking in the affidavit in the present case. Though the affidavit recites an abundance of detail which formed the “underlying circumstances” that led the FBI agent to seek the warrant, it appears to me that a substantial basis for his conclusion that the automobile of Joseph Giacalone was involved in the disappearance of James R. Hoffa is lacking.
This conclusion that the affidavit is deficient does not result from a “hypertechnical, rather than a commonsense” approach. Even conceding the probability that the unexplained disappearance of James R. Hoffa resulted from an abduction engineered by his enemies in the International Brotherhood of Teamsters, this is not enough. There must be some link between this assumed federal crime and the automobile of Joseph Giacalone. When the affidavit is read as a whole it is clear that the activities of O’Brien on July 30, 1975 are relied upon to supply the connecting link. However, I find completely tenuous the conclusion that Charles O’Brien probably used the automobile of Joseph Giacalone to abduct James R. Hoffa. It is possible, of *518course, that this did occur, but the facts recited in the affidavit do not supply the probability that is required. Though O’Brien did borrow the automobile of Giacalone on the day of the disappearance, the affidavit fails to place O’Brien or the automobile at any place where Hoffa was said to be on that day. The government contends the magistrate could take judicial notice of the fact that Farmington, Michigan is about a ten-minute drive from the Machus Red Fox restaurant where Hoffa had gone. Nevertheless, the affidavit places O’Brien at Farmington between only 12:00 noon and 1:00 p. m., which was at least one and one-half hours before Hoffa disappeared. There is absolutely nothing to indicate that Hoffa and O’Brien were in the same vicinity after 2:30 p. m., when Hoffa was last heard from. The statement that the affiant “feels” that there is probable cause to believe that evidence consisting of fingerprints and microscopic particles of human blood, flesh, hair and clothing is being concealed on the automobile of Joseph Giacalone should properly be treated as a “mere conclusion,” Aguilar v. Texas, 378 U.S. 108, 113, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), or as a “mere affirmation of suspicion and belief.” Nathanson v. United States, 290 U.S. 41, 46, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933).
I would affirm the judgment of the district court.