[17] SUMMERS, Justice (dissenting).

Writs were granted under the Court's supervisory jurisdiction on the application of Stephen Humble in this prosecution for possession of marijuana. The Court reviews a ruling of the trial judge on whether probable cause existed for the issuance of a search warrant. Since I cannot agree that the trial judge erred in finding that probable cause existed, I file this separate opinion to express my dissent.

Humble was charged by bill of information with possession of marijuana. He was found guilty in a bench trial, and sentenced.

The conviction was based upon evidence seized as a result of a search warrant issued upon the affidavit of a deputy sheriff to search "One 1963 Brown Chevrolet registered to Raymond H. Humble, License # 67 E 528 1972-73" for the purpose of seizing "Marijuana or any other Controlled Dangerous Substance defined by LSA R.S. 40:961 et seq." The following reasons were set forth in the affidavit to support the issuance of the search warrant:

"A reliable informant has given me reliable information on one prior occasion two months or so ago concerning a pending criminal investigation and the information given to me proved to be true. My informant is (sic) never been in trouble, he pays his bills, he is peaceable in the community and is known in the community to tell the truth. He has recently informed me that Steve Humble, white male who drives and uses the above described car, uses and sells marijuana. The informer says he sells the marijuana out of his car to teenagers around Jonesville, La. Steve Humble has been suspected of using and distributing marijuana for a year or more. The undersigned has received reports from various sources, other than the reliable informant, referred to above, that Steve Humble has possessed and used marijuana. A Search Warrant is requested to search the above described car."

This certificate appears in the per curiam of the trial judge who issued the search warrant:

"This is to certify that prior to signing the search warrant dated February 23, 1974 to search the 1963 brown Chevrolet registered to Raymond H. Humble, I obtained from the affiant Clyde Walker the name of the informer. The informer was a person who was a regular informer or 'stool pigeon' for Deputy Walker who I had known for some time was serving in that capacity, and at the time I signed the search warrant I knew him to be a responsible person and I knew that he was truthful and that his reputation in the community for truth and veracity was not questioned. His name was not mentioned in the affidavit to protect his confidential status and this per curiam is written and signed on the condition that his name not be used in public or in the press."

Prior to trial, Humble moved to suppress the evidence seized by virtue of the search warrant. He contended that the affidavit did not contain sufficient reasons to establish probable cause as measured by standards set in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 684 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The motion to suppress was denied by the trial judge.

The issue in this court is said to be that where the statement of the informer is the sole basis for establishing probable cause, it is imperative that the first element of the two-pronged test of Aguilar for establishing reliability be satisfied — that is, the request for a warrant in this case did not inform the magistrate of how the unidentified informer came to the conclusion that the defendant uses and sells marijuana out of his car. Defendant also complains that there is no showing of any independent corroboration by the law enforcement officers as required in Spinelli.

In my view the affidavit contains sufficient facts to give rise to the establishment of probable cause and the ruling of the trial judge is correct. The pivotal information given in the affidavit upon which the search warrant was founded is "He (the informer) has recently informed me (affiant) that Steve Humble, white male who drives and uses the above described car, uses and sells marijuana. The informer says he sells the marijuana out of his car to teenagers around Jonesville, La." This affirmative statement of fact made by the informer contains specific details. He names the offender (Steve Humble) and describes him as a "white male who drives and uses" a carefully described automobile ("one 1963 Brown Chevrolet registered to Raymond H. Humble License # 67 E 528 1972-73"). Humble's offense is particularly said to be that he "uses and sells" a certain drug, "marijuana"; the manner of sale being "out of his car"; the purchasers being "teenagers", and the place of the sale being "around Jonesville, La."

It is reasonably to be inferred, if not implicit, from an affirmative statement giving these detailed facts and information, when not qualified as in this case, that the statement is made from the informer's personal knowledge. It is not the statement of a belief, a suspicion or a conclusion; it is not hearsay; it is not an expression of opinion; it is presumed to be uttered on the basis of personal knowledge.

In addition to the specificity pointed out above, other reasons set forth in the affidavit make it quite clear that the affidavit upon which the trial judge based the search warrant was not "mere affirmation of suspicion and belief without any statement of adequate supporting facts." Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). For instance, the affidavit in the present case reinforces the reliability of the informant's tip when the affiant's sworn statement declares: "A reliable informant has given me reliable information on one prior occasion two months or so ago concerning a pending criminal investigation and the information given to me proved to be true." This is a categorical sworn statement by the affiant that the informant did give him information concerning a pending criminal investigation and the information did in fact prove to be true. Also, the timeliness of the informant's facts giving rise to the tip is shown to be within "two months or so"; further evidence of its reliability.

The informant's general good reputation is also sworn to by the officer applying for the search warrant. He swears to the magistrate: "My informant is (sic) never been in trouble, he pays his bills, he is peaceable in the community and is known in the community to tell the truth." Taken alone this statement would not be sufficient to establish a basis for an informant's reliability in an otherwise vague statement of facts. But when considered with the other specific circumstances recited here, this affidavit of veracity and indicia of trustworthiness should be considered by the magistrate in his determination of the informant's reliability and truthfulness.

Still other factors appear in this affidavit to support probable cause for the magistrate's search warrant. The deputy sheriff made an oath that "Steve Humble has been suspected of using and distributing marijuana for a year or two." This is taken to mean that the law enforcement organization (the sheriff's office) with which affiant is associated has some independent basis for the statement. This inference is supported by the affiant's concluding statement. "The undersigned has received reports from various sources, other than the reliable informant, referred to above, that Steve Humble has possessed and used marijuana." Although the "sources" are anonymous, the information furnished by these "various sources" gains substance when considered in connection with the other facts and circumstances contained in the affidavit. At the same time, the statement adds reliability to the informant's tip.

Finally, there is the certificate of the trial judge setting forth that he required disclosure of the informant's identity and that he knew the informant to be truthful. This is entirely in keeping with the instructive expression of Chief Justice Weintraub in State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964), approved in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967):

"The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced."

Thus with disclosure of the informant's identity the issuing magistrate was further supported in his determination of probable cause. He was assured of the informant's truthfulness and, by this assurance, of the affiant's trustworthiness.

The essential constitutional requirement for the validity of the warrant is that it be based upon "probable cause". Both the Federal and State Constitutions make this requirement. U.S.Const. amend. IV; La. Const. art. I, ¶ 7. In determining probable cause for the issuance of a search warrant, it should be remembered that the issuing magistrate is not conducting a trial. Trials are necessarily surrounded with evidentiary rules developed to safeguard men from dubious and unjust convictions. Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). But before the trial we deal only with probabilities that "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 175, 69 S.Ct. at 1310.

Probable cause exists where the facts and circumstances within the knowledge of the officers executing the affidavit and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the most recent decision of the United States Supreme Court on the subject, Mr. Chief Justice Burger wrote:

"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, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):

"'[T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teaching 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 non-lawyers 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 will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'" 380 U.S. 108, 85 S.Ct. 741.

Taken together, the statements of the affidavit in this case furnish a substantial basis for believing the informant's statement. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The informant's tip is not a mere belief or suspicion; it is a statement of fact within the tipster's personal knowledge, substantiated by general statements of affiant and from other "sources" known to the affiant. Thus, considering all of the facts and circumstances upon which the search warrant is based, there was probable cause for the magistrate to issue the warrant. As the Court said in Spinelli v. United States, 393 U.S. 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) "their (the magistrate's) determination of probable cause should be paid great deference by the reviewing Courts."

In summary, as was said in Spinelli, Courts must carefully avoid

". . . 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, 379 U.S. 89, 85 S. Ct. 223, 228, 13 L.Ed.2d 142 (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, 87 S.Ct. 1056, 1062 [18 L.Ed.2d 62] (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, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, [13 L. Ed.2d 684] (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, 80 S.Ct. 725, 735-736 [4 L. Ed.2d 697] (1960)."

The Court's decision offends all the admonitions against undue concern for technicalities in the determination of probable cause.

I respectfully dissent.