State v. Meizo , 1980 Minn. LEXIS 1508 ( 1980 )

WAHL, Justice

(dissenting).

I must respectfully dissent. Minn.Stat. §§ 626.08, 626.09 and 626.10 (1978) and our own cases, State v. Burch, 284 Minn. 300, 170 N.W.2d 543 (1969) and State v. Miernik, 284 Minn. 316, 170 N.W.2d 231 (1969), require that oral testimony supplementing a warrant affidavit be reduced to writing contemporaneously with the application for the warrant.

Minn.Stat. § 626.08 (1978) provides: “A search warrant cannot be issued but upon probable cause, supported by affidavit * * *.” Minn.Stat. § 626.10 (1978) states: “The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.” (Emphasis supplied.) The statutory section on oral testimony, Minn.Stat. § 626.09 (1978), provides: “The court or justice of the peace may, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and must take his affidavit or their affidavits in writing, and cause same to be subscribed by the party or parties making same.” (Emphasis supplied.)

The majority has no trouble concluding that the affidavit in the instant case appears deficient on its face but, citing State v. Campbell, 281 Minn. 1, 161 N.W.2d 47 (1968), holds the evidence seized pursuant to that warrant admissible because the officer who sought the warrant testified at the omnibus hearing to sufficient additional facts which he said he swore to before the magistrate. In Campbell, decided before Burch and Miernik, we upheld a search based upon a deficient affidavit and unrecorded sworn testimony. In Miernik we discharged a writ of prohibition because of unrecorded facts disclosed orally to the magistrate by the officer-complainant. In both Campbell and Miernik, however, the supplementary unrecorded sworn testimony was set out either in a post-trial affidavit or return filed by the issuing magistrate, thus removing, as we said in Campbell, any vestige of possible doubt as to the substance of the information. 281 Minn, at 8, n.6, 161 N.W.2d at 52-53, n.6. To uphold a search on the basis of unrecorded sworn testimony on the sole recollection, after the search, of the officer charged with ferreting out the crime is a step not taken by this court before today. Such a holding directly contravenes the rule we propounded in Burch. There we held that:

[I]n order for a determination of probable cause to be sustained against a constitutional challenge, there must be a complaint or a sworn record, made at the time of the determination, which contains facts sufficient to support a finding of probable cause; the source of those facts; and where appropriate, the facts necessary to determine the reliability of the source.

284 Minn, at 308, 170 N.W.2d at 549. (Emphasis supplied.)

Burch made mandatory public recordation of the examination of the complainant and any other witnesses in support of the application for a warrant. State v. Miernick, 284 Minn, at 320, 170 N.W.2d at 233-34. Such a recordation requirement for oral testimony provides substantial protection to the constitutional requirement of probable cause by insuring a meaningful review of the magistrate’s determination. To ignore the recordation requirement and allow nonrecorded oral testimony to provide the basis for a probable cause determination invites circumvention of the affidavit requirement I would reverse.