¶ 58. 0dissenting). While I agree with the majority that there may be instances when a warrant application proceeding can be reconstructed, I cannot agree with the reconstruction procedure the majority has adopted. The majority's approach fails to protect adequately a defendant's right to meaningful review and undermines the warrant judge's role as a neutral and detached decision maker.
¶ 59. In analogizing to State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985), the majority sidesteps the import of the significant differences between the facts in those cases and the facts at hand. Reconstruction of an ex parte proceeding requires additional safeguards if review is to remain meaningful and if the warrant judge is to remain neutral and detached.
¶ 60. Even the State acknowledges that it would be better to have additional safeguards that the majority has now rejected. I would require procedures different from the majority's that would serve as the additional safeguards necessary in the reconstruction of an ex parte proceeding. Because those safeguards were not present here, I conclude that Rafhk's right to meaningful review was violated and that the evidence against her should have been suppressed. Accordingly, I respectfully dissent.
HH
¶ 61. I begin by highlighting the principal reasons that the majority's application of Perry and DeLeon gives me pause. First, both Perry and DeLeon arose in contexts where only a portion of a full transcript was missing. In DeLeon, 127 Wis. 2d at 76, approximately 15 minutes of testimony was unavailable from the tran*627script of a first-degree sexual assault trial. The court of appeals agreed with the circuit court that the testimony could be reconstructed adequately. See id. at 83. In Perry, 136 Wis. 2d at 96, 107, "significant portions" of the transcript for two of eight days of a trial were missing. We agreed with the court of appeals in Perry that the missing portions could not be adequately reconstructed, and we concluded "as a matter of law that the transcript is insufficient." Id. at 104, 108-109.
¶ 62. As the majority recognizes in form if not in substance, one of the factors for circuit courts to consider in determining whether reconstruction is appropriate is "the length of the missing portion in relation to the entire transcript." Perry, 136 Wis. 2d at 101. Here, it is the full transcript of a proceeding that is unavailable, yet the majority has concluded that it may be reconstructed.
¶ 63. Second, Perry and DeLeon involved the reconstruction of adversarial proceedings. In DeLeon, the court of appeals explained that the reconstruction procedure would also be adversarial:
[T]he parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation or by the amendment and counteramendment procedure outlined in Fed. R. App. R 10(c). Then, if any dispute remains as to what occurred, the difference shall be submitted to and settled by the trial court.
127 Wis. 2d at 79. This court in Perry approved of this methodology. 136 Wis. 2d at 102. The procedure contemplated by both Perry and DeLeon is an adversarial reconstruction of an adversarial proceeding. In contrast, here both the proceeding to be reconstructed as well as the reconstruction procedure adopted by the majority are ex parte.
*628¶ 64. Thus, Raflik's case presents a situation significantly different from those in Perry and DeLeon. Given the standards the majority has adopted, I am not convinced that an ex parte proceeding reconstructing an ex parte proceeding will sufficiently protect a defendant's right to meaningful review. In DeLeon, 127 Wis. 2d at 82, the court of appeals recognized that reconstruction is "not a normal fact-finding process but is actually a process for refreshing recollection." Therefore, the court concluded, procedural safeguards are necessary to protect an appellant's right to meaningful review. Id. In Perry and DeLeon, one of those safeguards was the defense's ability to challenge, as a first-hand witness of the trial, the State's recollection of the trial events. Here, the parties do not stand on such a level playing field, and the majority has failed to build in additional safeguards to restore the equilibrium.
¶ 65. My hesitation at the majority's decision is compounded by a close examination of this court's opinion in Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). The Glodowski court rested its decision, at least in part, on principles of meaningful review. Id. at 271. Additionally, Glodowski is more instructive than either Perry or DeLeon because it involved the impermissible supplementation of a warrant application.
¶ 66. In Glodowski, a sheriff testified before a magistrate in order to establish probable cause for a warrant. 196 Wis. at 266. After the execution of the warrant, the magistrate testified at a suppression hearing as to "further statements made by the sheriff under oath before the warrant was issued," apparently to bolster the finding of probable cause. Id. The court admitted the- evidence, and the defendant was convicted. Id. This court reversed, explaining that a war*629rant judge is prohibited from contributing to the record after the probable cause determination has been made:
Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made... .
Mature deliberation satisfies the court that State v. Blumenstein, 186 Wis. 428, 202 N.W. 684, and Hiller v. State, 190 Wis. 369, 208 N.W. 260, must be overruled in so far as these cases hold that the reviewing court may supplement the record made by the magistrate by taking oral testimony to disclose the proof that was in fact offered before the warrant was issued.
Id. at 271-72. We concluded:
Upon hearing the motion to suppress, the court should not have considered the proof of additional testimony given by the sheriff before the warrant issued or the proof offered by the defendant, but should have considered only the record made before the search warrant was issued.
Id. at 272.
¶ 67. The majority fails to acknowledge this language because the majority cannot reconcile Glodowski with its analysis. When asked at oral argument whether a decision adopting its position would require this court to overrule any cases, the State answered: "I think Glodowski presents the problem for the State." That is because Glodowski forbids a warrant judge from supplementing the record after the warrant was executed, which is precisely what has occurred in this case.
*630II
¶ 68. This Glodowski prohibition leads into yet another concern I have with the majority's methodology. The majority condones a warrant judge's active participation in reconstruction, thereby undermining the neutrality of the judge. Although the majority begins its discussion of active judicial participation by saying it does not encourage it, the majority then backtracks by explaining that some judicial participation is acceptable as long as it is not "excessive." Majority op. at ¶ 45. The majority adds that a judge's participation is "more appropriate during the reconstruction of a warrant application than it might be during the reconstruction of a trial segment." Majority op. at ¶ 46.
¶ 69. The majority asserts that the judge's testimony is "particularly helpful given the ex parte nature of the warrant application process, and the limited number of participants in the application process." Majority op. at ¶ 46. I, however, conclude that it is exactly these qualities of the warrant application process&emdash;the ex parte nature of the proceeding and the presence of witnesses for only one side&emdash;that demand the strictest caution in reconstructing a warrant appli- cation. I am bothered by the specter of a warrant- issuing judge as the State's star witness at a reconstruc- tion proceeding. As a general rule it will prove difficult for a judge's role as an active participant in a recon- struction hearing to coexist with that judge's role as a neutral and detached decision maker. Asking judges to fill both roles places them in an awkward and unseemly position. ¶ 70. Some of
the judge's questions at the recon- struction hearing in this case raise the Glodowski problem because they provide crucial information that 630 OFFICIAL WISCONSIN REPORTS *631was not a part of Detective Kocher's affidavit: information supporting the reliability of the informant and information providing a nexus between the location of the search and the location set forth in the affidavit. The search warrant included authorization to search Raflik's house, although Kocher's affidavit stated that he had seen marijuana plants only in an unattached garage and "in an orchard behind the residence." Kocher's affidavit did not provide any particular facts establishing a nexus between Raflik's house and the drug evidence found in the yard and unattached garage. Instead, it was the judge's leading questions that solidified a link between the house and the garage and verified the reliability of Kocher's informant. Yet, the majority concludes that these questions "did not amount to excessive testimony" without telling us what would be excessive. Majority op. at ¶ 48.
( — I hH hH
¶ 71. I would require procedures different from the majority's that would better protect the defendant's right to meaningful review and do less damage to the judge's role as a neutral and detached decision maker. The police investigators, the district attorney, and the judge involved in the warrant application should independently prepare affidavits detailing their recollections of the information in support of probable cause. Because police investigators who applied for the warrant may also have executed it, they should specifically aver whether the information supplied in their affidavits was known to them at the time of the warrant application. As the State acknowledges, this sort of independent reconstruction has support in case law and *632is preferable to the procedure approved by the majority. See State v. Smith, 941 P.2d 691, 694 (Wash. Ct. App. 1997.)
¶ 72. As the State also advances, if reconstruction is done independently, then the defendant has a meaningful opportunity to challenge the reconstruction at a suppression hearing. At that hearing, a judge other than the judge who issued the warrant would preside. This procedure would better maintain each judge's neutral role, and it is yet another safeguard recommended by the State that the majority does not require.
¶ 73. Finally, I note that although the majority correctly acknowledges that under Perry and DeLeon, a circuit court is to determine that reconstruction is accurate to the "same level of proof as the proceeding that is being reconstructed," the majority nevertheless concludes that the burden the State must meet is a preponderance of the evidence because that is "generally appropriate in a suppression hearing." Majority op. at ¶¶ 55-56 (emphasis added). The proceeding to be reconstructed in this case, however, is a warrant application where the State must establish probable cause. See State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991).
¶ 74. What does the majority mean when it says it agrees with the State that "the trial court must find, by a preponderance of the evidence, that the reconstruction adequately replaces the missing portion of the record"? Majority op. at ¶ 53. How does this burden relate to the requirement that the State show probable cause for a warrant or prove facts beyond a reasonable doubt in a criminal case?
¶ 75. The majority's statement of the burden of proof is deceptively simple. It gives little indication as to how the standard applies when it concludes without *633explanation that "the trial court had ample evidence to conclude that the State met its burden of proof in reconstructing the warrant application, and in doing so, protected Raflik's right to a meaningful appeal." Majority op. at ¶ 57.
¶ 76. In sum, I do not agree with the majority that Raflik's right to meaningful review was adequately protected by the reconstruction procedures employed. Additional safeguards are necessary when a court attempts by an ex parte proceeding to reconstruct in its entirety another ex parte proceeding. The procedures approved by the majority both compromise a defendant's right to meaningful review and undermine the warrant judge's role as a neutral decision maker. Thus, I would reverse the decision of the court of appeals.
¶ 77. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.