concurring and dissenting:
I concur in the result reached by the majority opinion and much of its analysis. However, I am unable to join in the opinion fully as written because of my disagreement with the majority’s analysis of the issue of alleged violation of the constitutional requirement that a neutral and detached magistrate determine whether probable cause has been shown for the warrant sought. My analysis, however, leads me to the same result that the majority reaches on this issue and I also would reject the claim that reversal is required because the judge who issued this warrant, on his own initiative, made significant additions and alterations to the affidavit and warrant. On the other issues presented, I am in agreement with the majority opinion and its affirmance of the judgment.
I
A
Turning to the Fourth Amendment issue raised, the principal claim is that the magistrate who issued the search warrant was not neutral and detached; thus the warrant was invalid and suppression of all evidence seized in the searches based on the warrant was required. The underlying facts about this issue are not in dispute and they are covered by the testimony of the state district judge who issued the warrant, VI R. (Rojas Record) at 5-13, and of Officer Flores, who presented his affidavit and obtained the search warrant. II Supp.R. at 7-16.
The troubling facts are stated clearly in the majority opinion. Majority Opinion at 940. After reading the affidavit of Officer Flores, the state judge who issued the warrant altered the warrant and the portion of *948the affidavit listing the items to be searched for and seized. Specifically, the judge inserted the handwritten word “and” between the words “person” and “place” on the warrant, and put his initials immediately underneath that insertion. To the warrant affidavit the judge also added the handwritten words “and Luis Ramirez himself: J.F.B.” (the initials of the issuing judge), by which were written the initials “R.F.” (of Officer Ramino Flores). Moreover the judge added to the affidavit, which was attached to the search warrant and referred to by it, the words “keys to the doors and/or locks on the door(s) at 838 Bridge, SW.” The initials “R.F.” (of Officer Flores) and “J.F.B.” (of the issuing judge) were also added. I Supp.R., Affidavit at 1. The effect of the alterations and additions by the judge was to command the seizure and search of defendant Ramirez himself, and a search for keys to doors and locks — significant further steps which the affidavit and warrant as submitted to the judge did not do.
The state judge who issued the warrant testified at the suppression hearing. He said that when he read the narrative portion of the affidavit, he “felt that those [items he added] would be concealed on the person of Luis Ramirez.” VI R. (Rojas Record) at 12. He acknowledged that he made the handwritten additions himself, with his insertion of the wording “and Luis Ramirez himself,” his addition of “and” between “person” and “place,” and his addition of the words “Keys to the doors and/or locks on the doors at 838 Bridge ...,” which the warrant commanded to be searched for. Id. at 8. It is undisputed, as the judge testified, that he did not participate in any way in the actual execution of the warrant in question. Id. at 13.
As the majority opinion notes, in the instant case the federal district judge made written findings following the suppression hearing. He found that (1) the changes, noted above, did not indicate that the state judge breached his duty to be a neutral and detached magistrate, citing Lo-Ji Sales v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), and United States v. Levasseur, 699 F.Supp. 965 (D.Mass.1988); (2) the state judge’s conduct amounted to a judicial review of the affidavit and a neutral determination on probable cause to search defendant Ramirez’s person; and (3) in truth, the state judge fulfilled his judicial obligation to review the affidavit and determine whether probable cause existed to justify the issuance of a search warrant. Order at 1-2.
B
The troubling question is, having performed his proper judicial duty to review the affidavit and determine whether probable cause was shown, why should the issuing judge have made the significant changes and additions to the affidavit and the search warrant? The majority opinion dismisses this concern, viewing the insertions into the warrant and the affidavit as “common sense extensions” and “rather minor additions.” Majority Opinion at 941. I cannot agree with that analysis in light of clear pronouncements by the Supreme Court and other courts that the Fourth Amendment requires a determination and action by a neutral and detached magistrate.
Nevertheless I join in the result of the majority opinion on this issue. This concurring and dissenting opinion will explain my analysis in three steps: First, my reasons for rejecting the majority opinion’s dismissal of the constitutional claim as involving mere “common sense extensions” and “minor additions” to the warrant and affidavit; second, my analysis that nevertheless the denial of the motion to suppress should be upheld as to the evidence (the cocaine, the scale, the plastic baggies and. the loaded revolver) obtained in the search of the building at 838 Bridge on consideration of the valid portions of the warrant and affidavit, after redacting the invalid additions made by the state judge; and third, my reasoning that the denial of the motion to suppress as to the evidence seized from Ramirez’s person should be upheld because probable cause existed, independently of the warrant and affidavit, for the seizure of Ramirez, and that therefore the search of his person was valid as a search incident to a lawful arrest.
*949C
1
First, my disagreement is basically with the analysis of the majority opinion at pages 941-42, rejecting the constitutional claim of violation of the mandate that a neutral and detached magistrate make the determination on probable cause and the issuance of a search warrant. There the majority opinion, among other things, dismisses the additions to the affidavit and warrant as “mere common sense extensions of the contents of the narrative portion of the same affidavit.” Id at 941. The opinion says that such common sense changes do not indicate that the state judge “breached his duty to be a neutral and detached magistrate,” id at 941, and that the insertions made in the affidavit “constitute rather minor additions to the list of items to be searched or seized.” Id. at 941.
I disagree. When the state judge inserted the provision that Ramirez himself should be seized and searched, and when he ordered that the search include keys to the doors and locks at 838 Bridge, he made significant substantive additions to the affidavit and the warrant. In doing so, the judge was not then conforming to his prescribed constitutional duty “[sjince he was not the neutral and detached magistrate required by the Constitution.” Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971); see Lo-Ji Sales, Inc., 442 U.S. at 327, 99 S.Ct. at 2324-25; Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783 (1972) (“[A]n issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.”). Indeed, in Coolidge, the Court voided a search warrant because it was issued by a state attorney general who was actively in charge of the investigation and later was to be the chief prosecutor at trial. See also Welsh v. Wisconsin, 466 U.S. 740, 748 n. 10, 104 S.Ct. 2091, 2097 n. 10, 80 L.Ed.2d 732 (1984) (requiring inferences from warrants to be drawn “by a neutral and detached magistrate instead of by the officer engaged in the often competitive enterprise of ferreting out crime”); Franks v. Delaware, 438 U.S. 154, 164, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978) (“The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search.”).1
Turning to other cases concerning the requirement of a neutral and detached magistrate, I am not persuaded that United States v. Banks, 539 F.2d 14 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976), cited by the Majority Opinion at 941, helps the government here. There a commanding officer was held sufficiently neutral and detached to issue a search warrant. The challenge to his action was general, and the argument was merely that such an officer could in no way be neutral and detached due to his position. Here, however, specific actions of the state judge in making the changes in the affidavit and warrant, on his own initiative, raise serious concerns. United States v. Dorman, 657 F.Supp. 511 (M.D.N.C.1987), aff'd, 846 F.2d 74 (4th Cir.1988) (Table), is also relied on by the majori*950ty opinion. While Dorman upheld a conclusion that the actions of a magistrate did not rise to the level of actions prohibited by the Constitution, the judge reviewing the issue seriously questioned the magistrate’s actions:
The court strongly disapproves of some of the actions of Magistrate Moon in this matter. A magistrate has absolutely no business telephoning a detective and requesting that he report to the Sheriffs Department and assist in the investigation of a case. It well may be that “procedure” dictates that such a call be made, but such is the junction of a fellow officer, not of a magistrate. “Judges and magistrates are not adjuncts to the law enforcement team.” United States v. Leon, 468 U.S. 897, 917, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984).
657 F.Supp. at 514 (emphasis added).
The judgment we are making here involves a fundamental ingredient of Fourth Amendment protection. We must not dismiss the acts in question as insignificant, nor condone them by a precedent which may invite disregard of the strict requirement of neutrality and detachment of a magistrate issuing a warrant. I am convinced that the challenged actions of the state judge in making alterations and additions to the warrant and affidavit were violations of the standard of conduct required of a neutral and detached magistrate. Therefore I cannot agree with the majority opinion’s analysis and its conclusion that the alterations and additions to the warrant should be upheld.
2
Second, despite my disagreement with the analysis in the majority opinion on the neutral and detached magistrate issue, I join in the affirmance of the denial of suppression. In my opinion, the proper remedy for the invalid additions made here by the state judge to the affidavit and warrant does not require the invalidation of the warrant and search as a whole. Instead I believe the proper remedy is that the warrant and affidavit be redacted and that only the evidence obtained under the unlawful additions to the affidavit and warrant be set aside. This would follow the practice approved in Franks v. Delaware, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. There, the Court said that when a proper showing is made of deliberate falsehood or reckless disregard for truth in an affidavit supporting a search warrant, then, after setting aside the material that is the subject of the alleged falsity or disregard for truth, if there remains sufficient further information to support a finding of probable cause, no’ hearing is required.
Following a similar procedure here, only the evidence obtained as a result of the improper additions to the warrant and affidavit would be inadmissible. I feel this procedure is proper here since this case does not involve circumstances like those in Coolidge where a warrant was rejected in its entirety because it had been issued improperly by the chief investigator and state prosecutor in the case — obviously tainting the affidavit and warrant as a whole. 403 U.S. at 453, 91 S.Ct. at 2031. Here the state judge’s office and his duty to judge whether there was probable cause for a warrant did not demonstrate such a fundamental conflict of interest as Coolidge involved. As the Court noted in Coolidge, 403 U.S. at 450, 91 S.Ct. at 2029-30, where the State’s chief investigator and prosecutor issued the warrant, “there could hardly be a more appropriate setting for a per se rule of disqualification.... ” No such per se rule for invalidation of everything the state judge did is justified here.
It was only when the particular actions by the state judge were taken in making the invalid additions to the affidavit and warrant that the constitutional violation occurred. These discrete actions by the state judge distinguish this case from Lo-Ji. There the Court noted that because of the overall conduct of the magistrate, “[i]t is difficult to discern when he was acting as a ‘neutral and detached’ judicial officer and when he was one with the police and prosecutors in the executive seizure_” 442 U.S. at 328, 99 S.Ct. at 2325.
Under the Franks rationale, here I would reject reliance only on the portions of the affidavit and warrant invalidly added by the judge. To me, this is a reasonable constitutional accommodation, protecting the Fourth Amendment right of the defendant while *951avoiding an unnecessary wholesale invalidation of the warrant and suppression of evidence.
3
Third, while I would reject reliance on the improperly added portions of the affidavit and warrant, I would uphold the denial of suppression of evidence obtained in the search of Ramirez and the fruits of that search. I would do so on the alternative basis argued by the government that even if the warrant for the search of Ramirez was defective, his arrest was supported by probable cause and thus the subsequent search was a lawful search incident to arrest. Ap-pellee’s Answer Brief at 17.
United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), supports the arrest of Ramirez which was made in a public place in daytime. Watson noted that history clearly supports warrantless felony arrests in public places, and that such arrests need only be supported by probable cause at the time of arrest. Id. at 417, 96 S.Ct. at 824. Neither an arrest warrant nor exigent circumstances is required. Id. at 423, 96 S.Ct. at 827-28; see also United States v. Wright, 932 F.2d 868, 877 (10th Cir.) (“Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime.”), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991); United States v. Maez, 872 F.2d 1444, 1449 n. 7 (10th Cir.1989) (a warrantless arrest in public with probable cause does not violate the Fourth Amendment, even though exigent circumstances do not exist).
Here in his order denying the motion to suppress, the district judge cited Watson and found:
The officers who arrested defendant were aware of a controlled drug transaction consummated in the recent past at 838 Bridge, SW, between defendant and a confidential informant. Moreover, the officers knew prior to defendant’s arrest that cocaine and a loaded firearm were found at 838 Bridge, SW, based on the successful execution of the search warrant. These factors rise to the level of probable cause and justify the officers’ warrantless arrest of defendant. “The facts and circumstances within the knowledge of the agents and those of which they had reasonably trustworthy information were sufficient to warrant an objective belief that a crime had been committed.” United States v. Skowronski 827 F.2d 1414, 1417 (10th Cir.1987). The evidence seized from defendant’s person was legally obtained per the dictates of the search warrant, and alternatively, was validly seized pursuant to a constitutionally permitted search incident to a lawful arrest.
Order of September 24, 1993 at 2-3 (emphasis added).
I agree with the trial judge to the extent that he found that the evidence seized from Ramirez’s person was validly seized pursuant to a constitutionally permitted search incident to a lawful arrest. The valid search incident to the lawful arrest of Ramirez thus supports the admissibility of the key and cash found on his person. The remaining evidence — the cocaine, the scale, the baggies and the loaded revolver — was obtained by a valid search under portions of the search warrant which were not affected by the invalid additions. Therefore all of the evidence in question was properly held admissible, and the motion to suppress was correctly denied.
II
In sum, I respectfully dissent from the analysis of the majority opinion on the constitutional claim of violation of the mandate concerning a neutral and detached magistrate. However, as is explained above, on the basis of a different analysis I reach the same result on the issue as does the majority opinion, namely that suppression was not required. On all other issues, I concur fully in the analysis and conclusions of the majority opinion.
. See also State v. Valenzuela, 130 N.H. 175, 536 A.2d 1252, 1266 (1987) (Justice Souter stating for the court that "[Wjhatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.") (quoting Shadwick v. City of Tampa, 407 U.S. at 350, 92 S.Ct. at 2123), cert. denied sub nom. Young v. New Hampshire, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 703 (1988); State v. Stanley, 167 Ariz. 519, 526, 809 P.2d 944, 950-51 (disapproving magistrate's actions but upholding warrant in circumstances), cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991); Gardner v. State, 567 A.2d 404, 411 (Del.1989) (upholding warrant but noting "[t]he judge or magistrate must maintain his impartiality and not ally himself with one party"), cert. denied, 494 U.S. 1067, 110 S.Ct. 1785, 108 L.Ed.2d 786 (1990); State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182, 188 (1981) ("While we affirm the lower court on this issue, we are troubled by the fact that the justice of the peace worked with the State Police in preparing the warrant." (Emphasis added.)). But see State of Tennessee v. Nolan, 617 S.W.2d 174, 175-76 (Term.Ct.Crim.App.1981) (rejecting complaint concerning "certain [unspecified] deletions and additions made by the issuing magistrate...." to an affidavit; action of the magistrate upheld on reasoning that it did not detract from his neutrality, but demonstrated it).