concurring:

I concur in Judge Kennedy’s well crafted opinion under compulsion of the law of this circuit as expressed in our decisions in United States v. Cardwell, 680 F.2d 75 (9th Cir.1982) and United States v. Washington, 782 F.2d 807 (9th Cir.1986). As pointed out by Judge Kennedy, had the warrant contained a description of the crimes committed by the defendants instead of a citation to the statutes criminalizing such conduct, the warrant may have met our standards of particularity. Majority opinion, page 963. In United States v. Timpani, 665 F.2d 1, 4-5 (1st Cir.1981), the First Circuit upheld a warrant containing a similar list of generic terms, which was followed by a listing of several statutes, because specific reference was made to the crimes of loan sharking and gambling. Id. at 5 . The court in Timpani stated: “it is difficult to see how the search warrant could have been made significantly more precise.” Id. The only substantial difference between the warrants in Timpani and those before us is that here the words “loan sharking and gambling” were not used to refer to the crimes specifically described in elaborate detail in the 157 page affidavit.

I find it ironic that we can trust law enforcement officers to use their training and specialized knowledge to make arrests and searches incident thereto without a warrant on facts that appear innocent to the untrained eye, but we cannot assume that experienced FBI agents have read the statutes recited in a search warrant and will limit their search to evidence of these crimes. See United States v. Bernard, 623 F.2d 551, 560 (9th Cir.1980) (search of a mobile home without a warrant valid as incident to a lawful arrest where probable cause existed based on conduct, which although, “innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer” (quoting Davis v. United States, 409 F.2d 458, 460 (D.C.Cir.), cert. denied, 395 U.S. 949 , 89 S.Ct. 2031 , 23 L.Ed.2d 469 (1969)).

In United States v. Washington, 782 F.2d at 819 , we determined, without remanding for an evidentiary hearing, that the officers did not act in good faith in relying on an overbroad warrant. The Eleventh Circuit, in United States v. Accardo, 749 F.2d 1477 (11th Cir.), cert. denied, — U.S. -, 106 S.Ct. 314 , 88 L.Ed.2d 295 (1985), concluded that it could not review the good faith of officers who had seized evidence under an insufficiently particular warrant without an evidentiary hearing in the district court because “[i]t is not clear that we have had the opportunity to consider all the circumstances in this case.” Id. at 1481. The court in Accardo remanded to the district court to afford the parties “a hearing on the good faith issue.” Id. Unfortunately, we did not discuss Accardo in our opinion in Washington , although the Eleventh Circuit published its decision 13 months earlier.

The Supreme Court has instructed us to construe the descriptive words in a search warrant “in a common sense fashion.” United States v. Cardwell, 680 F.2d at 77 . In United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), the Supreme Court, in discussing the preference to be accorded to searches under a warrant stated that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” Id. at 106 , 85 S.Ct. at 744 (citing Jones v. United States, 362 U.S. 257, 270 , 80 S.Ct. 725, 735 , 4 L.Ed.2d 697 (1960).

I am troubled that in this doubtful and marginal case we are compelled by the law of this circuit to hold a search under a warrant invalid notwithstanding our conclusion that probable cause existed for an arrest of the defendants for loan sharking and bookmaking. The existence of probable cause would have justified a search without a warrant and the seizure of all items in plain view. Thus, contrary to the instruction of our Supreme Court, that we should reward officers who obtain warrants from neutral magistrates, we have penalized their conduct and denied them an opportunity to testify to their good faith in *970 attempting to satisfy the requirements of our Constitution. I think we have gone astray.