dissenting.
The majority opinion here goes far beyond any prior decisions of this court, or of any other court, in emasculating the Fourth Amendment protection against unreasonable searches and seizures. This court now holds that if an affidavit for a search warrant shows only that a “reliable” informer reported that a named individual orally stated that he “had pounds of grass for sale,” that information standing alone is sufficient to establish probable cause for the issuance of a warrant to search the residence of the individual who reportedly made the statement. The holding necessarily means that a search warrant could also have been properly issued to search the individual’s automobile, office, place of business, or any other place under his control. There is no case cited in the majority opinion, nor have we found one anywhere, in which the affidavit for the search warrant contained nothing more than the bare report of an informer that a suspect had stated that he had contraband.
The law is clear that in passing on the validity of a search warrant, the court may consider only information brought to the attention of the magistrate. For the affidavit of a tip from an informant to be sufficient, the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the articles were located where he claimed they were, and (2) some of the underlying circumstances from which he also concluded that the informant was credible. See, Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; State v. Holloway, 187 Neb. 1, 187 N. W. 2d 85; State v. Glouser, 193 Neb. 190, 226 N. W. 2d 328; State v. LeDent, 185 Neb. 380, *820176 N. W. 2d 21. It is conceded in this case that the informer was reliable.
A recital of some of the underlying circumstances in the affidavit for a search warrant is essential if the magistrate is to perform his function. Mere affirmance of belief or suspicion is not sufficient. See State v. Holloway, supra. The affidavit here recited a bare conclusion reflecting only suspicion. It recited none of the underlying circumstances from which either the informer or the affiant concluded that the marijuana was located in the residence of the defendant. There was no information against the defendant before the magistrate except the quoted statement from the affidavit, nor was any other information presented at the suppression hearing. There is no information in the affidavit that the defendant had ever been associated with drug or criminal activities, or had ever possessed, sold, or used marijuana. There is no information or circumstance of any kind to support any such assumption, except for the fact that the defendant reportedly made the quoted statement. Yet the majority opinion says: “The defendant was obviously a dealer.” If that be true, then the same conclusion would necessarily follow as to any citizen who was reliably reported to have made the same statement, even if the statement was made in jest. As the trial court said at the original suppression hearing: “Well, I guess I’d better not tell anyone that I have marijuana in my home, or I may be invaded by the police.”
The Fourth Amendment to the Constitution of the United States and Article I section 7, of the Constitution of Nebraska, provide: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant(s) shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person(s) or thing(s) to be seized.”
*821The decision of this court effectively destroys the protection afforded to every citizen under the specific terms of the Constitution of the United States and the Constitution of Nebraska. It also sets out a new and unique basis for determining what constitutes probable cause for the issuance of a search warrant. If the home of any citizen is open to police search whenever a reliable informer reports that the citizen made a statement implicating himself in the possession of illegal substances or things, the dread spectre of a police state is all too close and real. Constitutional freedoms should never be so easily discarded. The trial court’s determination at the original suppression hearing was eminently correct, and should have been approved by this court.