dissenting.
I respectfully dissent. In Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, the United States Supreme Court established what has come to be known as the “two-pronged” test for judging the sufficiency of an affidavit for a search warrant. In order to pass that test, the affidavit must inform the magistrate of: (1) Some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded (a) that the informant, whose identity need not be disclosed, was credible, or (b) that his information was reliable. I feel that the affidavit before us entirely fails to satisfy the second prong.
In determining whether the magistrate was justified in the issuance of a warrant, the State is not per*672mitted to supplement information contained in the affidavit or given the magistrate for a search warrant at the hearing on the motion to suppress. See Whiteley v. Warden, 401 U. S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306.
Since the affidavit and the evidence at the hearing on the motion to suppress are devoid of any evidence that the informant was a “citizen informant,” the majority opinion cannot and does not contend that his report of a crime would be presumptively reliable. Nor does the majority opinion contend that there is any indicia of previous reliability of the informant contained in the affidavit or presented to the magistrate. The second prong of the Aguilar test must then be met by the officer’s affidavit of a “controlled buy.”
It is conceded that an affidavit setting forth the underlying circumstances of a sufficiently controlled buy would justify a decision of the magistrate that the information provided by the informant in a particular case is “reliable” and thus obviate the necessity of an inquiry into the credibility of the informant in general. The vice in the majority opinion, it seems to me, is its interpretation of the words “controlled buy.” As recited in the majority opinion, the police officer was permitted to testify at the suppression hearing that the words meant the purchase of a controlled substance by a cooperating individual from a specific designated person or a specific designated place made under the personal supervision and control of an officer or officers. Despite the officer’s concession that the amount of “control” possible will depend on the circumstances, the majority opinion finds the term “controlled buy” to be capable of precise definition, reads that definition into the affidavit, and finds the affidavit sufficient. Again, it must be pointed out, the definition of “controlled buy” was not present in the affidavit nor presented to the magistrate.
*673In the affidavit for the search warrant in Jones v. United States, 336 A. 2d 535, a decision of the District of Columbia Court of Appeals, the first paragraph of the affidavit stated that the officer had “met with a reliable informant, this informant has proven reliable in at least 5 occasions in the past two months, all of which resulted in the arrest of narcotic violators and the seizure of narcotic drugs. This source stated that illicit narcotic drugs were being dispensed inside 1111 Mass. Ave. N. W. #308. This source of information further stated that it had illegally purchased illicit narcotic drugs in the past and that it was willing to purchase illicit narcotic drugs for the Third District Vice Unit.” The affidavit went on to describe an oft-repeated scenario. The court there stated that: “A controlled purchase of drugs from the apartment was arranged. The officer and the informant went to the apartment building. The informant was searched by the officer and found to have no money or narcotics on his person. The officer then gave the informant police funds, and watched him enter the building. On the informant’s return a few minutes later, as described in the affidavit, the ‘affiant then searched the source of information and found it (the informant) to contain a quantity of brown envelopes all of which contained green plant material. The search also revealed the source of information to be free of any money.’
“The informant further told the officer that he had purchased the material from a particular person in that particular apartment, and a preliminary field test undertaken promptly reflected that the substance purchased was marijuana.”
The court concluded that the observation of the informant by the police officer, which extended only to the door of the apartment complex and not to the door of the specific apartment, was sufficient based on previous criteria of reliability and that no direct *674observation of the apartment door itself would be required. The differences between the two cases are obvious. In this case we have no previous indicia of credibility of the informant. There is no indication in the affidavit that the substance purchased actually turned out to be a controlled substance. More importantly, the decision in Jones as to whether the buy was “controlled enough” was made by the magistrate after consideration of underlying circumstances, while in the instant case, the magistrate merely accepted the conclusion of the officer on that issue. As Mr. Justice Jackson noted in Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436: “The point of the Fourth Amendment, which is not often grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from the evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” This protection function of the warrant requirement affords protection in name only when the magistrate fails to inquire into the “underlying circumstances” as required by Aguilar and accepts instead the conclusions of the officer.
It appears from the record of the suppression hearing that the only evidence before the magistrate was the affidavit and that the amount of “control” in a controlled buy could vary depending on the circumstances. I have no hesitancy in saying that if testimony of the officer at the hearing on the motion to suppress had been contained in the affidavit, the evidence would be admissible. However, it is my understanding of the law that since the evidence was not before the magistrate, and the words “controlled buy” are not so precise that any particular meaning can be attributed to them, that we do violence to Whiteley v. Warden, supra, by approving this affi*675davit. The evidence is probably conclusive that the defendant was a large dealer in dangerous drugs and that suppression of the evidence would result in his freedom. As it was put by Mr. Justice (then judge) Cardozo: “The criminal is to go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 150 N. E. 585. I am as reluctant as the majority to bring about this result, but as Mr. Justice Clark responded in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081: “* * * ‘there is another consideration — the imperative of judicial integrity.’ * * * The criminal goes free, * * * but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”
I would reverse.
Kuns, Retired District Judge, joins in this dissent.