dissenting:
I respectfully disagree with the holding of the majority that the affidavit upon which the search warrant was issued indicates insufficient basis for the finding of probable cause by the judicial officer issuing the search warrant. Although the affidavit falls far short of being ideal, I think it meets the requirements of G.S. 15-26 (b) and the Fourth Amendment to the Federal Constitution.
In Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 637, 89 S.Ct. 584 (1969) Black, Justice, dissenting said, “(I)n my view, this Court’s decision in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964) was bad enough. That decision went very far toward elevating the magistrate’s hearing for issuance of a search warrant to a full-fledged trial. . . . But not content with this, the Court today expands Aguilar *498to almost unbelievable proportions.” Even in Spinelli, the zenith of technicality for probable cause to support a search, the Court stated that it does not retreat from the established propositions “that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 879 U.S. 89, 96, 13 L.Ed. 2d 142, 147, 85 S.Ct. 223 (1964) ; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 18 L.Ed. 2d 62, 70, 87 S.Ct. 1056 (1967) ; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, 380 U.S. 102, 108, 13 L.Ed. 2d 684, 688, 85 S.Ct. 741 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 4 L.Ed. 2d 679, 707, 708, 80 S.Ct. 725, 78 ALR 2d 233 (I960).”
If these principles were not retreated from in Spinelli, suffice to say they were temporarily lost sight of by the Court. However, in United States v. Harris, 403 U.S. 573, 29 L.Ed. 2d 723, 91 S.Ct. 2075 (1971) the Court distinguished Aguilar and Spinelli with Justice Black and Justice Blackmun concurring, stating that Spinelli should not be distinguished but overruled. In Harris, the Court held:
In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment’s prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U.S. 102, 13 L.Ed. 2d 684, 85 S.Ct. 741 (1965) : “[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by the nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants *499will tend to discourage police officers from submitting their evidence to a judicial officer before acting. 380 US, at 108, 13 L.Ed. 2d at 689.
Quoting further from Harris, the court continued:
The substance of the tip held sufficient in Jones, closely parallels that here held insufficient by the Court of Appeals. Both recount personal and recent* observations by an unidentified informant of criminal activity, factors showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information.
Quoting further from Harris we find:
We cannot conclude that a policeman’s knowledge of a suspect’s reputation — something that policemen frequently know and a factor that impressed such a “legal technician” as Mr. Justice Frankfurter — is not a “practical consideration of everyday life” upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer’s knowledge of a suspect’s reputation.
In State v. Vestal, 278 N.C. 561, pp. 576-577, 180 S.E. 2d 755 (1971), Justice Lake quoted from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723, as follows: “[W]hen a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing court 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,’ * * * and will sustain the judicial determination so long as ‘there was substantial basis for [the *500magistrate] to conclude that [the articles searched for] were probably present.’ * * * ”
Applying Harris to the case at bar the following findings are justified: The affiant, a special agent of the State Bureau of Investigation, is holding arrest warrants for the three occupants (including defendant) of the premises to be searched charging them with the sale or possession of narcotics on various days of April 1971. The warrants charge defendant with sale and possession on 16 April 1971 and possession on 28 April 1971. These arrest warrants would of necessity involve the reliability of unnamed magistrates and police officers in securing and issuing the warrants. This information coupled with the personal knowledge of the affiant that all of the subjects live together, all have sold narcotics to a special agent of the SBI (which could involve sales up to the date of the affidavit) and all are still actively involved in drug sales to Campbell College students are sufficient for probable cause.
These findings' seem to fall squarely within the holding of United States v. Harris, supra, and upon such information a magistrate would be reasonably justified in concluding that there was a reasonable basis for a search when he is concerned only with a balancing of probabilities. Further, in the balancing of probabilities the magistrate would be justified, in the reasonable belief upon the information presented to him of the probability that narcotics would be found at the premises where all three subjects resided in light of their extensive dealing with narcotics, even if the sales occurred elsewhere which is not clear from the affidavit.
For the reasons stated, I vote
No error.
We reject the contention of respondent that the informant’s observations were too stale to establish probable cause at the time the warrant was issued. The informant reported having purchased whiskey from respondent “within the past 2 weeks,” which could well include purchases up to the date of the affidavit. Moreover, these recent purchases were part of a history of purchases over a two-year period. It was certainly reasonable for a magistrate, concerned only with a balancing of probabilities, to conclude that there was a reasonable basis for a search.