(dissenting).
I confess my inability to follow the reasoning of the majority of the court in reaching the conclusion that, because in the search warrant the commissioner made express mention of but one of tho affidavits which were before him when he issued the same, and because he was not called as a witness to testify that he did in fact consider all the affidavits, the judgment must be reversed. It is not disputed that the affidavits, if all were considered, were sufficient. The fact that but one affidavit was referred to in the warrant is explainable on the ground that the commissioner must have deemed it unnecessary to mention the others. But they were all before him, and the presumption should follow that he considered them all.
In addition to that presumption, there was actual and sufficient proof that he did consider them all. Certainly it cannot be said that no competent proof that he did consider them all could have been furnished, *26otherwise than by his own testimony.. Obviously circumstances might arise, to prevent the production of such testimony. All the necessary proof was furnished by the testimony of the prohibition agent, who stood by and observed the fact that the commissioner considered all the affidavits. That testimony was prima facie sufficient. If further information was desired as to how the witness knew that the commissioner considered the affidavits, whether he discussed them with the witness or read them in his presence, the facts might have been adduced by the petitioner on cross-examination. His counsel was content to let the matter rest upon the showing so -made, and, when the court inquired of him, “Any cross-examination?” answered: “No, sir; I simply rely on the record. The record shows that the search warrant was issued on the affidavit of Mr. Donnelly alone.” He relied upon the proposition that the recital in the warrant was conclusive. ■ The burden of proof was upon the petitioner ¡to show that the search' warrant was -illegally issued. He made a prima facie ease of illegality when he pointed out the defects of the affidavit referred to in the warrant, but his prima facie ease was overcome 'by the -proof that in fact the warrant was issued upon all the affidavits;
“It is the existence of - probable cause, and not -the finding by the magistrate, that makes warrant issue legal, and, as the existence of probable cause must be disclosed by the affidavit, the question before the Commissioner, the court below, and this court is: Do the affidavits in question show probable cause?” Hawker v. Queck, 1 F.(2d) 77. “There is no requirement that the satisfaction of the officer shall be either preserved or expressed in writing or in the warrant. His satisfaction may be presumed from the fact of the issuance of the warrant.” Tucker v. United States (C. C. A.) 299 F. 235. “The affidavit upon which the search warrant was asked was not the only paper be-before the commissioner. He had the complaint and affidavit upon which the warrant of arrest was sought. Both of these could be, and in fact were, used in determining probable cause. These papers together make out a showing of probable cause. * * * But, under the circumstances of the issúanee of both warrants in this case, the action of the commissioner wás justified in law, and the government is not estopped from relying upon the entire reeord,- by the failure of the Commissioner to clearly state that his conclusions are not drawn from one complaint or one dffidavit alone.” In re Rosenwasser Bros. (D. C.) 254 F. 171.
I submit that the judgment should be .affirmed.