The opinion
GUSTAFSON, J.
I dissent.
Since an officer cannot make a warrantless arrest on less information than that which he would need to obtain an arrest warrant (Wong Sun v. United States (1963) 371 U.S. 471 [ 9 L.Ed.2d 441 , 83 S.Ct. 407 ], the crucial question is whether the information possessed by McClain immediately prior to the door of the apartment being kicked in would have enabled him to obtain a valid arrest warrant. Such a warrant could not properly have been issued if McClain’s affidavit therefor did not “establish *572 that the informant spoke with personal knowledge” of the defendant’s possession of heroin. (People v. Hamilton (1969) 71 Cal.2d 176 [ 77 Cal.Rptr. 785 , 454 P.2d 681 ].)
Before making a warrantless search or a warrantless arrest on information supplied by an informant, an officer must have had described to him “the accused’s criminal activity in sufficient detail that [the officer] may know that he is relying on something more substantial than a casual rumor circulating in the underworld.....” (Spinelli v. United States (1969) 393 U.S. 410 [ 21 L.Ed.2d 637 , 89 S.Ct. 584 ].)
The court concludes from what the informant told McClain “that the informer . . . had seen [defendant] carry heroin on his person and knew defendant had heroin with him that morning.” I disagree. As I read the court’s opinion, those conclusions are based upon the wholly unsupported assumption that the informant had been in the apartment. Even the Attorney General does not indulge in this assumption, but rather admits in his brief that the “informant told Officer McClain that he . . . had never been in the apartment.”
With respect to the defendant here, the informant’s only personal knowledge was that he knew the defendant and that he “had seen the actual gun” which defendant allegedly possessed. 1 Although this is stretching quite far, I am willing to infer that the informant saw the gun in the possession of the defendant. But I cannot conclude that because a person carries a gun, he also possesses narcotics.
I do not understand it to be the law that personal knowledge of the informant of a criminal act of defendant may be inferred from the fact that the information of the informant proves to be correct after what would otherwise have been an unlawful search has occurred. Here the officers, except as mentioned in the next paragraph, had not verified a single fact told to McClain by the informant before they kicked in the door. They did not know from any independent source or from their own knowledge who lived at the apartment or to whom the automobiles pointed out by the informant belonged.
Spinelli characterizes Draper v. United States (1959) 358 U.S. 307 [ 3 L.Ed.2d 327 , 79 S.Ct. 329 ] as “a suitable benchmark” which, as I understand it, means the minimum amount of information which an officer must *573 possess before acting without a warrant. In Draper the informant told the officer that the defendant would disembark from a train on the 9th of September in Denver with heroin in his possession, gave the officer a detailed description of the defendant and of the clothes he Would be wearing, said that the defendant would be carrying a tan zipper bag and said that the defendant would be walking fast. The officer was at the train station at the designated time when “he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that [the informant] had described, alight from one of the very trains from the very place stated by [the informant] and start to walk at a ‘fast’ pace toward the station exit.” Thus the officer “had personally verified every facet of the information given by him by [the informant] except whether [defendant] had accomplished his mission and had the three ounces of heroin on his person or in his bag.” Because everything else told to the officer by the informant was verified by the officer before the arrest, the court concluded that the officer had reasonable ground “to believe that the remaining unverified bit of [the informant’s] information — that [the defendant] would have the heroin with him — was likewise true.” In the case at bench, the only information supplied by the informant which was verified by the officer before he acted was that a Buick Riviera would be parked near the apartment. The officer did not even verify that the automobile belonged to defendant. Surely the fact that an informant has correctly described an automobile which will be found near a house or an apartment does not afford the officer probable cause for believing whatever the informant tells the officer about the criminal activities of the occupants of the house or apartment. If this court’s decision today is correct, a warrantless arrest or search is authorized when an officer verifies a very meager irrelevant and nonincriminating fact.
Since the California Supreme Court in People v. Hamilton (1969) 71 Cal.2d 176 [ 77 Cal.Rptr. 785 , 454 P.2d 681 ] refused to infer personal knowledge of the informant on the basis of the affidavit in that case, I do not see how personal knowledge of the informant can be inferred from the testimony of the officer in the case at bench. Justice Mosk dissenting in Hamilton objected to requiring that “affidavits for warrants be drafted with the finesse of a Montgomery Street contract” because such affidavits “are prepared, generally hurriedly because of exigent circumstances, by laymen with limited legal background.” That objection does not lie in the case of a warrantless arrest. If the informant has in fact told an officer that he has personal knowledge of a crime committed by a person whom the officer *574 then arrests, the prosecutor, presumably skilled in the law, can easily elicit this when examining the officer as a witness.
I think it was error to deny the motion to suppress the evidence and I would reverse the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied May 15, 1970. Peters, J., and Sullivan, J., were of the opinion that the petition should be granted.
It is interesting to note that the significance of the gun was that the informant told McClain that defendant “would carry the gun” on his person when “he was away from his car.” That proved to be incorrect because when defendant was arrested in the apartment, the gun was in the automobile.