dissenting.
I cannot agree with the majority opinion that the information supplied by the undisclosed informant constituted sufficient facts upon which a neutral and detached magistrate could base a conclusion that probable cause to search existed.
At the pre-trial hearing on appellant’s motion to suppress, San Antonio police officer Clyde Gentle testified that he received a telephone call at approximately 10:30 a.m. on August 24, 1977. The call was from an informant, who was never identified by name but from whom Gentle testified he had received information several times in the past which had proven to be reliable, credible and accurate.
The information received on the morning of August 24, was that there was a subject at 915 South Leona Street described as a white male, approximately thirty years old, six feet one to two, with light-colored brown hair and a mustache, wearing a tan long-sleeved shirt. The informant further stated to Gentle that the subject would be driving a maroon-colored Pontiac with a tan top, license plate number 582 SSM, and that he would be in possession of a quantity of heroin and would be leaving the location at any minute.
Because of the exigency of the circumstances, Gentle testified that he did not have time to procure a warrant. It had been his experience that it took approximately 45 minutes to obtain a warrant. Gentle recruited Detective De La Garza and Sergeant Otis Doyle and immediately proceeded to the location indicated by the informant.
While driving past the location they identified the car described by the informant which was parked in front of the house at 915 S. Leona. They proceeded to an area on Colima Street close to the location of 915 S. Leona and set' up a point of surveillance. De La Garza, on foot, went in an alley between two houses where he could see directly to 915 S. Leona. Gentle and Doyle remained in the unmarked detective vehicle which they had parked at such a location that they were unable to observe the scene. De La Garza testified that there were several men standing near the suspect’s vehicle but that there was nothing suspicious in the area which would lead him to believe that any illegal activity was occurring.
Approximately seven or eight minutes were spent at the scene without suspicious activity being noticed when De La Garza motioned that the suspect was coming out of the house. De La Garza then turned and ran to the detective’s vehicle. The three officers observed the suspect’s vehicle come to the corner of Leona and Colima Streets, make a u-turn and proceed north on Leona Street. This was the first time Gentle and Doyle had seen the suspect. The officers at this point began to follow the suspect’s car which turned west on Guadalupe Street, north on Frio Street and east on El Paso Street.
Thinking that the suspect would circle the block and proceed back the opposite way, the officers turned on Frio Street and started back towards Guadalupe Street. During this time, the suspect’s car was not within sight of the officers. The suspect was intercepted at the intersection of Guadalupe Street and Frio Street.
Gentle testified that the sole basis for stopping the suspect was the informant’s information. There had been no violation of any traffic regulations and nothing resembling criminal activity had been seen.
The officers were walking towards J.he vehicle when Gentle yelled out “He is swallowing it,” at which time De La Garza went immediately to the suspect and grabbed him by the throat. A struggle ensued between the officers and the suspect. The suspect’s head went down between the console and the passenger’s side of the vehicle. The suspect was subdued and taken out of the car, placed under arrest and advised of his rights. Doyle found some balloons on the console side of the seat.
*945The car was impounded and inventoried by De La Garza and a total of five balloons was found in the car. The balloons contained a powder which was later identified as heroin.
During the hearing on the motion to suppress, defense counsel attempted to learn the name of the informer. The State objected to this line of inquiry and the court sustained. Gentle testified that the informant had not been present at the time of the surveillance or the subsequent arrest. Several things about the suppression hearing deserve special mention to paint a proper scenario.
At no time on direct examination did the prosecutor inquire of Gentle regarding the reliability of the source of his information. In fact, it is apparent that the prosecutor intentionally avoided inquiry into this area.
On cross-examination defense counsel delved into the source of the information received from the informant and Gentle answered that he knew the informant to be speaking from personal observation. Further cross-examination disclosed that Gentle supposed the information to be from firsthand observation because that was the way he (Gentle) had insisted the information be gathered.
After the remaining officers had testified to related matters, the State recalled Gentle to the stand for very limited examination.1
It was at this juncture that Gentle admitted for the first time that he had no idea how his informant had obtained the information given him. Gentle admitted that the only personal knowledge he possessed regarding the pre-search and arrest was that the location at 915 South Leona was a heroin connection.
Almost without exception, but without objection, all of the testimony of Gentle which we must examine in evaluating the existence or nonexistence of probable cause is before us in the form of affirmative and negative responses to leading questions.
Nevertheless, the determination must be made from the evidence as presented to the examining court.
The trial court overruled the motion to suppress and allowed the introduction of the evidence which was seized during the search. Appellant was convicted of possession of heroin and sentenced to ten (10) years’ confinement in the Texas Department of Corrections. Appellant’s ground of error raises the issue of the validity of his arrest and the admissibility of the “fruit” of that arrest in evidence at this trial.
The purpose of the Fourth Amendment, as well as of the corresponding State constitutional provision, (see Art. I, § 9, Texas Constitution), is protection of innocent and guilty alike from arrest or search based upon suspicion or upon common rumor and report rather than upon proof of reasonable grounds for believing a crime has been or is being committed, either through direct evidence or through reasonable inferences from suspicious acts. See Wilson v. State, 621 S.W.2d 799 (Tex.Cr.App.), opinion delivered Sept. 30, 1981.
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court established a two-pronged test to be applied as a prelude to issuing an arrest or search warrant. It is axiomatic in our law that the standards applicable to the factual basis supporting an officer’s probable cause assessment at the time of a challenged warrantless arrest and search are at least as stringent as the standards Aguilar sets forth with respect to a magistrate’s assessment in issuing an arrest or search warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Because the probable cause assessment of this case is based upon information received from an informant, I therefore assess the probable cause by applying the same standards used by a magistrate in determining probable cause for the issuance of an arrest or search warrant. Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974).
*946The Supreme Court, in Aguilar, held that an affidavit for a search warrant may be based on hearsay information and need not reflect the direct observations of the affi-ant; however, the magistrate must be informed of some of the underlying circumstances on which the informant based his conclusions and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was “credible” or his information “reliable.” 378 U.S., at 114, 84 S.Ct. at 1514. The court, in holding that the evidence obtained as a result of the search warrant in Aguilar was inadmissible, stated:
Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affi-ant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession.
378 U.S., at 113, 84 S.Ct. at 1513.
Thus, the two-pronged test of Aguilar requires: (1) disclosure of underlying circumstances on which the informant based his conclusions or knowledge, and (2) disclosure of the underlying circumstances from which the officer concluded that the informant was credible or that his information was reliable. 378 U.S., at 114, 84 S.Ct. at 1514.
In dealing with the first (“basis of knowledge”) prong of the Aguilar test, the evidence adduced at the pre-trial hearing on the motion to suppress illustrated that the informant had given Officer Gentle a description of an unknown suspect, a description of the car he would be driving and had stated that he would have heroin in his possession.
In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Supreme Court indicated that the purpose of the Aguilar “basis of knowledge test” could be fulfilled without a statement of the circumstances from which the informant derived his information and that in absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. 393 U.S., at 416, 89 S.Ct. at 589.
What is remarkable about the instant case is that unlike other cases where there is no mention of how the information was obtained, we have here a positive admission from the officer that he has no idea how his informant obtained his information.
If we are to presume sufficient underlying circumstances from the sketchy information supplied we would in effect have to disregard the clear language in Spinelli.
The assertion was made in Spinelli that a tip may be so detailed as to be “self-verifying,” on the ground that extensive detail may imply that the informant has based his conclusion on personal observation. 393 U.S., at 416, 417, 89 S.Ct. at 589, 590.
What details were supplied to Gentle indicating criminal activity? What evidence of criminal activity was corroborated through independent investigation or surveillance?
The answer has to be an unqualified “none.”
Details of an unknown person’s appearance together with a particular car’s description are totally consistent with innocent facts. We need not even contrast innocent conduct versus criminal activity since neither the information supplied nor facts gained from surveillance reveal anything but innocent conduct.
If we are to rely on any single fact supplied by the informant, we must do so on the conclusory allegation that appellant was going to be in possession of heroin. But the *947test requiring underlying circumstances was designed specifically to test such con-clusory allegations and affidavits containing nothing more were condemned as unacceptable in Spinelli, 393 U.S., at 424, 89 S.Ct. at 593.
In Spinelli the affidavit contained allegations that surveillance had been in effect for five days and reflected detailed movements of the accused. It further reflected numerous instances of independent investigation in addition to revealing that the accused was personally known to the affi-ant as a gambler, bookmaker and associate of gamblers and bookmakers. The affidavit finally concluded that Spinelli was engaging in wagering operations and using the phones previously investigated.
As in our case, all of the information supplied, except the conclusory one charging the violation, was consistent with innocent conduct. The conclusory allegation with nothing more has been held insufficient to establish probable cause. Aguilar v. Texas, 378 U.S., at 113, 84 S.Ct. at 1513.
Had the informant in the instant case given detailed accounts of the premises, persons located therein, names, source of the heroin, prior dealings, or any other fact which would have aided the examining court in concluding that such facts could only have been obtained by someone intimately connected with the transaction, then perhaps the test in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), would suffice.
The Court of Criminal Appeals has consistently required more than the instant case supplies.
In Gomez v. State, 470 S.W.2d 871 (Tex.Cr.App.1971), the informant was only a few blocks away from the vicinity described and further described persons by name and detailed what they were doing. The court correctly concluded that “... there would appear to be some indication that the informant spoke with personal knowledge or had gained his information in a reliable way.”
In Anderson v. State, 467 S.W.2d 434 (Tex.Cr.App.1971), both the informant and the officer knew the defendant as a user of narcotics. The informant’s tip that the defendant was selling marijuana at a particular location, together with independent surveillance of an event consistent with the tip, was held to supply the requisite probable cause.
In Rivas v. State, 506 S.W.2d 233, 234 (Tex.Cr.App.1974), the informant supplied extreme details of cars, names and events which, with corresponding investigation and corroboration, were held to be sufficient. But the corroboration included independent observation of packages shaped like “kilos” of marijuana.
In Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975), the informant overheard the defendant say he was going to deliver a large quantity of marijuana to be transported in a pickup truck with a camper shell. Independent investigation and corroboration of the criminal activity supplied the requisite probable cause.
In Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973), the informant’s tip was corroborated through independent observation of acts consistent with a drug transaction.
The instant case is practically indistinguishable from Brunson v. State, 506 S.W.2d 594 (Tex.Cr.App.1974), where the Court of Criminal Appeals, speaking through Judge Douglas, was called upon to declare whether an informant’s statement that he had reason to believe that heroin was being possessed, together with other detailed facts, was sufficient to supply the requisite probable cause. The court held it was not.
In the instant ease, the affiant’s statement that he believed the informant to be speaking from personal knowledge because he had trained him in a manner of obtaining information, together with the admission that he had no knowledge of how his informant had obtained the information, can only be interpreted as a “reason to believe” the information to be true. Mere affirmance of belief or suspicion is not enough. Aguilar, supra, 378 U.S. at 112, 84 S.Ct. at 1512. The only significant difference between Brunson and the instant case *948is that in Brunson the informant’s information is questionable because of the lack of verifiable means and in the instant case the affiant’s testimony is questionable for the same reason. The results should be the same. See also State v. Robey, 577 P.2d 1226 (Mont.1978).
I feel that the tip in the instant case does not contain a sufficient statement of the underlying circumstances from which a hearing court may conclude that appellant was involved in illegal activity. See Bazan v. State, 522 S.W.2d 224 (Tex.Cr.App.1975).
In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the Supreme Court allowed the basis of knowledge prong of Aguilar to be met where there was personal observation and corroboration by the investigating officers. However, in the case at bar, I feel that there was not sufficient corroboration of the informant’s tip. The officers set up a surveillance which lasted only seven to eight minutes. They observed nothing suspicious at the scene. They were merely able to corroborate innocent factual data received from the informant (description of the suspect and his car). There was nothing at the scene to indicate that illegal activity was occurring.
Article 14.04, Tex.Code Crim.Pro., provides:
Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.
I fail to see how the information supplied by the informant was “satisfactory proof . .. that a felony has been committed ...” as required by Article 14.04, Tex.Code Crim.Pro.
Since there was insufficient evidence informing Officer Gentle as to the underlying circumstances upon which the informant based his conclusions that appellant was going to be in possession of heroin, there was no probable cause for the search. Aguilar v. Texas, supra. The information failed to adequately describe the appellant’s criminal activity in sufficient detail to allow Gentle to conclude that the informant was relying on substantial information. Spinelli v. United States, supra. Furthermore, there was insufficient corroboration by the officers to produce probable cause to search appellant. United States v. Ventresca, supra.
Therefore, I would hold that the Aguilar test has not been met and that there was insufficient probable cause for the search. Thus, the search was illegal and the fruits of such a search cannot be admitted into evidence. Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976).
The judgment should be reversed and the cause remanded. I dissent.
. Defense counsel urged the court to recall Gentle and the prosecutor, noting that he had not yet rested his case, volunteered to recall the officer as the State’s witness.