dissenting.
My fellow colleagues forgive the violation of the provisions of Rule 41(c)(2)(D)1 and deny the sanction of suppression based on the teachings of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 0984). I respectfully disagree and thus dissent.
Initially, I find the violation of Fed. R.Grim.P. 41(c)(2)(D) to be considerably more serious than does the majority. The majority opinion concludes that the violation in this case, i.e. the failure of the recording and transcription requirements of Rule 41(c)(2)(D), does not warrant suppression of the evidence. The majority bases its holding on cases from the Fifth and Ninth Circuits which held this same violation to be a mere “technical” violation of Rule 41(c)(2)(D), which did not mandate suppression. I find the majority’s reliance on these'cases to be misplaced for the reason that there exists a significant factual difference between the instant case and the cases cited by the majority. In the cases forgiving the violation of Rule 41, the magistrate judge testified at the suppression hearing as to his memory of the conversation, thus corroborating the testimony of the affiant and presenting the reviewing court with a more complete record as to the facts which led to the initial determination of the existence of probable cause; in the instant case, however, Magistrate Judge Hooe did not testify.
In the first case cited by the majority, United States v. Richardson, 943 F.2d 547, 549 (5th Cir.1991), the Fifth Circuit was faced with the review of a telephonic search warrant application in which the recording equipment did not work, and, as a result, the magistrate failed to make any record of the communication in which the affiant applied for the search warrant. At the subsequent suppression hearing, while the district court had no record of the oral affidavit, both the magistrate and the affiant testified as to their memory of the conversation. Id. The district court was therefore able to corroborate the affiant’s testimony with that of the magistrate judge, and thus come to the appropriate judicial determination as to whether probable cause was in fact presented to the magistrate judge at the time the warrant was issued. The appellate court in that case noted with approval the district court’s review of the magistrate’s testimony: “[s]inee *366the [district] court could not review a tape or transcription of the telephone call between [the affiant] and the magistrate, it acted well within its discretion in basing its decision on a thorough review of the testimony of [the affiant] and the magistrate.” Id-
The other case cited by the majority, United States v. Stefanson, 648 F.2d 1231 (9th Cir.1981), involved the application fór a telephonic search warrant in which the magistrate judge recorded only a portion of the telephone call due to problems with the recording device. Two days after granting the search warrant, the magistrate judge executed a transcript of the phone call, using his memory and the portion of the tape recording that existed. Id. at 1233. At the subsequent suppression hearing, the district court heard testimony from the magistrate judge as to his memory of the events, and denied the motion to suppress the evidence. The Ninth Circuit upheld this denial, holding that the mere “technical” violation of Rule 41 did not justify suppression due to the fact that the magistrate judge testified to his memory of the conversation and thereby corroborated the affiant’s statements and satisfied the reviewing courts that probable cause had, in fact, been presented to the magistrate judge. Id. at 1235.
In sharp contrast to those eases is the instant case, in which the only evidence of the conversation presented to the district court at the suppression hearing was the affidavit of the affiant, executed nineteen months after the issuance of the warrant, and the affiant’s subsequent testimony detailing his memory of what facts he provided to Magistrate Judge Lynn Hooe, unaided by the either corroborating or conflicting testimony of Magistrate Judge Hooe. The lack of any testimony by the magistrate judge distinguishes this case from the cases cited by the majority in which the magistrate judges did testify. See also United States v. Allen, 586 F.Supp. 825 (N.D.I11., 1984)(holding that even though tape recording of phone call from affiant to magistrate was blank, suppression was not necessary due to the fact that the magistrate and the affiant both testified as to the contents of the conversation). For this reason, I find the violation of Rule 41(c)(2)(D) in this case to be more than a mere “technical” violation.
The obvious purpose behind the requirements of a transcription of the information provided by the affiant under the provisions of Rule 41(c)(2)(D) is to allow reviewing courts to determine if the application for the warrant met the probable cause requirements of the Fourth Amendment. The failure to comply with those provisions in this case prohibits the appropriate judicial determination as to whether probable cause was presented to Magistrate Judge Hooe in support of the issuance of the warrant. Moreover, the lack of any testimony by the magistrate judge makes reliance on the above-cited cases improper.
The majority acknowledges the fact that the magistrate judge did not testify in this case, but concludes that this only worked to disadvantage the defendant, since, as the party seeking suppression, he bore the burdens of persuasion2 and production.3 See United States v. Blakeney, 942 F.2d 1001, 1015 (6th Cir.1991), cert. denied, 502 U.S. 1035, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992). It is my belief that this circular rationale fails to recognize the shifting of the burden of production that occurs on a motion to suppress, and in this case put the burden on the government to produce the testimony of the magistrate judge.
Initially, the burden of production is on the defendant to make a prima facie showing of illegality. United States v. de la Fuente, 548 F.2d 528, 533-34 (5th Cir.1977). Following such showing, the burden of production shifts to the government to present rebuttal evidence. Richardson, swpra, at 548-49. In this case, I believe that the defendant met *367Ms imtial burden of production concerning the illegality of the warrant by presenting evidence of the Rule 41(c)(2)(D) violation. The burden of production then shifted to the government to rebut tMs showing of illegality with evidence that the warrant was properly supported by probable cause. TMs could have been done by presenting the testimony of the magistrate judge who issued the warrant. However, since no such testimony was offered, I believe that the showing of illegality was never rebutted by the government, and thus the motion to suppress should have been granted.
In addition to my finding that the failure to record the conversation or have the magistrate judge testify at the district court level is a substantial violation of Rule 41(c)(2)(D), I disagree with the majority’s decision that this search was constitutional under the “good faith exception” of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon proMbits the sanction of exclusion of the evidence seized in violation of the Fourth Amendment if the reliance on the magistrate’s determination of probable cause by the officers executing the warrant was objectively reasonable. Id. at 922, 104 S.Ct. at 3420. However, Leon recognizes exceptions to that general rule, including: (1) “bare-bones” affidavits, where the affidavit does not provide the magistrate with a substantial basis for determining the existence of probable cause; and (2) situations where the officer’s reliance on the warrant was neither reasonable nor in good faith. Id. at 923, 104 S.Ct. at 3420-21. It is my position that the teacMngs of Leon cannot be applied to tMs case because both of the aforementioned exceptions apply, rendering the warrant invalid.
Under the first exception, Leon will not uphold a search based on an affidavit which did not provide the magistrate judge with a sufficient basis on wMch to find probable cause. Leon therefore necessarily requires an examination of whether the affidavit was so inadequate as to preclude the magistrate judge from malring a determination of the existence of probable cause. In tMs ease, however, such an examination, is impossible, and therefore the application of Leon is improper. Here, the only evidence of the tele-phomc affidavit is the memory of the affiant as to what information he provided to the magistrate judge to justify the finding of probable cause. Moreover, that memory is based on the áffiant’s recollection nineteen months after the issuance of the warrant, with no corroboration from the magistrate judge who issued the warrant. These facts simply do. not provide the reviewing courts with sufficient evidence to apply Leon. Rather, we are being asked to now extend the “good faith exception” to a situation in which we must conjecture as to what facts the affiant presented the magistrate judge, and whether based on those facts, the magistrate judge should have determined that probable cause existed.
The majority here engages in sheer speculation as to what facts the magistrate judge was presented with, and concludes that Leon does apply:
Viewing the evidence at its weakest, the magistrate judge had good reason to believe, based on Rrappmann’s corroboration, that Chaar stored two lockers worth of cigarettes. , The magistrate judge could reasonably have made the inferential leap (more like a hop) that someone storing so many cigarettes, about whom a tip had been received, could very well be smuggling those cigarettes.
The majority therefore finds a sufficient basis on wMch to conclude that probable cause existed; and thus rejects the first exception to Leon. I, however, find an insufficient basis on wMch to review the conversation between the affiant and the magistrate, and therefore find that the first exception to Leon exists and renders the warrant invalid.
Furthermore, I find that the second exception to Leon exists, namely, that there was no reasonable basis for the officer to believe that good faith existed. The affiant here concedes that the investigation and search were commenced on the same day, based upon an anonymous tip received by another officer. This situation necessarily requires an application of tMs circuit’s previous rule stating that when an anonymous tip provides the basis for establisMng probable cause, the affiant must meet a Mgher *368standard to establish probable cause due to the inherent limitations of anonymous tips. See United States v. Leake, 998 F.2d 1359, 1363 (6th Cir.l993)(holding that review of warrant issued on the basis of anonymous tip requires test of whether “totality of the circumstances”. supports the conclusion that evidence or contraband will be found at a particular place). In Leake, we found Leon inapplicable, and held that there was no probable cause to support the issuance of the warrant due to the “limited information provided by the anonymous caller, coupled with the brief limited surveillance by the affiant officer that turned up nothing unusual.” Id. at 1367.
I find that similar insufficiencies exist in the evidence presented to the district court in this case, which prevent the application of Leon. Here, as in Leake, it was an anonymous tip that led to the initial investigation of the defendant. What is more is that the tipster’s information as to the location of the facility proved to be incorrect, and there was no future activity described by the tipster which could be corroborated by the officers before applying for the search warrant. As a result, what we know of the tipster’s information fails to suggest even a hint of sufficient indicia as to the tipster’s credibility. See Leake, supra, at 1365.
Therefore, based on the record before the district court, the motion to suppress should have been granted.4 I would vacate the conviction and sentence and remand for further proceedings. Thus I dissent.
. The rulemaking process led to the 1977 amendment to Rule 41 by adding the provisions of Rule 41(c)(2). The advisory committee notes for the 1977 amendment, presented in support of the passage of the amendment, stated that for such a subdivision (c)(2) warrant to issue, four requirements must be met. The fourth requirement would have solved the problem in the instant case:
Return of the duplicate original warrant and the original warrant must conform to subdivision (d). The transcript of the sworn oral testimony setting forth'the grounds for issuance of the warrant must be signed by affiant in the presence of the magistrate and filed with the court.
(Emphasis added).
An examination of subdivision (c)(2), however, fails to disclose the underlying material. Section (2)(e) of Pub.L. 95-78 provided in part that the amendment by the Supreme Court (in its order of Apr. 26, 1976) to subdivision (c) of Rule 41 of the Federal Rules of Criminal Procedure (subdivision (c) of this rule) is approved in a modified form. Presumably, the underlying material in the committee notes referring to item 4 was deleted by the Congress.
. "[OJbligation which rests on one of the parties to an action to persuade the trier of the facts, generally the juiy, of the truth of a proposition which he has affirmatively asserted by the pleadings.” Director, OWCP, Department of Labor v. Greenwich Collieries [Ondecko], 512 U.S. 267, 275, 114 S.Ct. 2251, 2256, 129 L.Ed.2d 221 (1994).
. "[A] party's obligation to come forward with evidence to support its claim.” Greenwich Collieries, supra, at 272, 114 S.Ct. at 2255.
. I acknowledge that the teachings of Leon emphasize that the purpose of the exclusionary rule is to deter police misconduct rather than to punish errors of judges and- magistrates. However, every police officer worth his salt knows that the proper execution of a search warrant includes the subsequent filing of an inventory of those things seized. Presumably a sophisticated police officer, such an agent of the ATF, knowledgeable enough of Rule 41(c)(2)(D) to make use of the rale, and, assisted in the application by an assistant United States Attorney, would be conscious of and concerned with the need to comply with the transcription provisions of Rule 41(c)(2)(D). If the errors in this case pass muster, when revealed, it is difficult to conceive of a violation of the transcription provisions of Rule 41(c)(2)(D) that would cause judicial concern.