¶23
J.M. Johnson(concurring) — I concur with the majority’s conclusion that David Reep’s voyeurism convictions must be reversed.5 However, I would hold the second warrant was invalid for failure to comply with constitutional requirements and with our rule providing for telephonic warrants. CrR 2.3(c).
¶24 The Fourth Amendment to the United States Constitution provides, “no warrants shall issue, but upon probable cause, supported by oath or affirmation.” These protections are also found in the Washington Constitution, article I, section 7: “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Both of these provisions require the State, when seeking a search warrant, to present to a neutral magistrate the facts establishing probable cause. State v. Myers, 117 Wn.2d 332, 337, 815 P.2d 761 (1991). The constitutional provisions require that only an independent magistrate may make the probable cause determination and issue a warrant. Id.
¶25 The warrant requirements serve an important purpose by separating from the police officer executing a search *818the power to decide whether the search is justified. That power must be exercised by a detached magistrate. Two branches of government must agree before a citizen or his residence may be forcibly searched, thus minimizing the risk of abuse. See United States v. Karo, 468 U.S. 705, 717, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (“The primary reason for the warrant requirement is to interpose a ‘neutral and detached magistrate’ between the citizen and ‘the officer engaged in the often competitive enterprise of ferreting out crime.’ ” (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948))).
¶26 However, courts are mindful of the occasional need to allow an immediate search warrant, especially to stop a crime or preserve evidence, which may vanish or be destroyed. For this reason, the presentation supporting probable cause need not always be in person and “may be an electronically recorded telephonic statement.” CrR 2.3(c). To allow a challenge and review of such a warrant’s sufficiency, a recording of the statement made or a duplicate must be part of the court record. Id. If a warrant is challenged, evidence seized based on a telephonic warrant must be suppressed if “the failure to record sworn statements deprives the appellate court of a record sufficient to review the magistrate’s probable cause determination.” Myers, 117 Wn.2d at 334.
¶27 The duplicate of a missing recording may be a written reconstruction of the entire sworn statement. Id. at 343. Nevertheless, the reconstruction is valid only if a disinterested person — nearly always the magistrate — corroborates. Id. This magistrate corroboration may be by written notes taken during or immediately after the telephone conversation if no recording exists; but it must be the magistrate, and not the person seeking the warrant, who corroborates the conversation. See id. at 342-43 (“If a magistrate completely fails to record statements that support a telephonic warrant . . . , then this gross procedural deviation generally renders the warrant invalid.” (emphasis added)).
*819¶28 In Myers, an officer went to the defendant’s house after receiving a tip that the defendant was selling drugs. Id. at 334. The officer asked the defendant if he could search the house. Id. The defendant refused, and so the officer had recording equipment sent to the house and called a judge to obtain a warrant. Id. at 334-35. After hearing the officer’s sworn testimony, the judge granted a warrant to search the house. Id. at 335.
¶29 Unfortunately, the recording machine malfunctioned and the recording of the conversation was lost. Id. On learning this the next day, the officer wrote down the conversation as he recalled it. Id. The judge did not, and when the defendant moved to suppress the evidence, the judge testified he did not accurately recall the conversation. Id. at 335-36.
¶30 When the issue reached this court, we suppressed the evidence seized, holding that the officer’s reconstruction satisfied neither the telephonic recording rule nor constitutional standards. Id. at 333-34. The court would have overlooked minor deviations from the recording rule, provided the “irregularity does not impair review of the trial court’s probable cause determination.” Id. at 342. Since the judge had no independent recollection of the conversation, this court could not review his probable cause determination and so ordered the evidence suppressed. Id. at 343-44.
¶31 Here, Detective Jason Mayse may well have acted correctly. Not only did he seek judicial review before executing a search, he prepared a script for his telephone application to the issuing magistrate. This is entirely appropriate when seeking a telephonic warrant. However, the magistrate here had no recollection of the telephone conversation. This prevents us from reviewing the probable cause determination, and this requires suppression of the evidence from the search.
¶32 I would hold that the trial court erred when it held the officer’s reconstruction alone sufficient to give an appellate court the ability to review the magistrate’s decision. Clerk’s Papers at 199 (Conclusion of Law 7). This error is *820twofold. First, one reason for telephonic recording is to assure an appellate court can review the magistrate’s analysis or conclusion and not simply to review what evidence the officer presented to justify the warrant. Second, a hurried officer with later gathered evidence (from the search) could erroneously reconstruct a conversation to support probable cause. Allowing the person seeking a warrant to reconstruct the basis for probable cause undermines the power-checking function of the warrant requirements. Each magistrate must assure there is some record of his or her recollections of the evidence presented to support the warrant.
¶33 Since Judge Brown did not recall the conversation here, the warrant does not comply with either CrR 2.3 or constitutional requirements. Therefore, the evidence seized must be suppressed.6 Since Mr. Reep’s conviction was based on that evidence, his convictions for voyeurism should be reversed.
Chambers, J., concurs with J.M. Johnson, J.
Mr. Reep also pleaded guilty to the unlawful possession of a controlled substance and has served that sentence.
My conclusion logically precludes the need to decide whether the warrant described the things to be seized with sufficient particularity. However, were I to reach the issue, I would fully concur with the majority’s analysis.