The opinion
ODOM, Judge
(dissenting).
This case should be reversed and the cause remanded to the trial court because the search warrant was based upon an affidavit that did not show sufficient facts to justify a magistrate in finding probable cause for the search.
The majority cogently and candidly admits that the hearsay portion of the affidavit in question fails to meet either of the prongs of the test required by Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 . Then they proceed to find “the independent buttressing observations sufficient to satisfy the requirements of probable cause.” In reaching this conclusion, the majority purports to follow the test promulgated by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 . I believe this test has been improperly applied in the instant case.
When hearsay is made the basis of an affidavit for a search warrant, Aguilar requires two kinds of information to be disclosed. The first prong requires information showing that matter which is lawfully subject to seizure is probably where it is alleged to be. The second prong of the Aguilar test requires information showing the reliability of the informant. See Jaben v. United States, 381 U.S. 214 , 85 S.Ct. 1365 , 14 L.Ed.2d 345 ; Wright, Federal Practice and Procedure: Criminal Sec. 662.
The holding in Spinelli is that corroborating facts from police observations which *768 are stated in the affidavit can be taken into account to determine whether the affidavit as a whole meets both requirements of Aguilar. However, where the hearsay portion of the affidavit does not meet Aguilar standards, the corroborating observations must supply sufficient information to correct the particular deficiency in the hearsay portion. 1
The majority opinion finds the corroborating information sufficient to meet both prongs of Aguilar. I, however, can find nothing in the affidavit to indicate that either the informant or the affiants had personal knowledge that heroin was being possessed and sold. The hearsay portion of the affidavit recites that persons “ . . - go over to the ball park located in the 1500 block of Toomey Road and exchange objects.” The independent buttressing observations state only “that an object believed to be HEROIN was exchanged for money” in the ball park.
The mere assertion that contraband is being possessed is insufficient to meet the first prong of Aguilar. See Nicol v. State, Tex.Cr.App., 470 S.W.2d 893 . A warrant must contain allegations which go beyond the affiant’s mere suspicion or his repetition of another’s mere suspicion. Ruiz v. State, Tex.Cr.App., 457 S.W.2d 894 (Onion, J., concurring). An inference that persons who talk to narcotics addicts are engaged in the criminal traffic of narcotics is not the sort of reasonable inference required to support an intrusion by police upon an individual’s personal security. Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 . A bald assertion that contraband is being possessed by a specific person at a specific place “is merely conclusory and does not set out facts as would permit a finding of probable cause by the magistrate.” Ruiz v. State, supra, 457 S.W.2d at 897 .
An unsupported assertion remains only an assertion. An informant’s tip which is insufficient under one of the prongs of the Aguilar test cannot be buttressed by observations which merely restate the same assumptions. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 ; Spinelli v. United States, supra.
In the instant case, suspicions and assumptions have been carefully nurtured and forced to blossom into probable cause. The Fourth Amendment requires more. It requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As Lord Chief Justice Pratt stated in Wilkes v. Wood, 19 How.St.Tr. 1153 (1763): 2
“ . . . a discretionary power given to messengers to search wherever their suspicions may chance to fall certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.”
I am concerned that the majority opinion may have the effect of granting such power.
I respectfully dissent.
. In Spinelli, the hearsay portion of affidavit was found to be insufficient under both prongs of Aguilar. Tire corroborating circumstances were found insufficient to support either prong. The af-fiant had attempted to corroborate the hearsay portion of the affidavit with information that the defendant had two tel-. ephones with different listings, a circumstance which might be found in the type of the book-making operation alleged. As Mr. Justice White stated in his concurring opinion:
“ . . .if the officer simply avers, without more, that there is gambling paraphernalia on certain premises, the warrant should not issue, even though the belief of the officer is an honest one, as evidenced by his oath, and even though the magistrate knows him to be an experienced, intelligent officer who has been reliable in the past.”
. This case and the later decision in Entick v. Carrington, 19 How.St.Tr. 1029 (1765), formed the basis for Fourth Amendment requirements. Stanford v. Texas, 379 U.S. 476 , 85 S.Ct. 506 , 13 L.Ed.2d 431 (1965).