(concurring in part, dissenting in part)— There is no immunity from tort liability when the same police officer provides unreliable information or withholds material information to obtain a search warrant and then also executes the warrant. Bender v. Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983). If there is a genuine issue about providing unreliable information or withholding material information, a jury question exists. Bender v. Seattle, supra. However, when an officer in an exercise of caution as to the existence of probable cause takes the informant to the prosecutor who questions him at length about probable cause and then presents the informant to a magistrate who places him under oath and further examines him, the situation is different. The issuing magistrate presumably made his own determination of probable cause based on what the informant told him as well as the information contained in the affidavit.
The probability of criminal activity is a determination to be made by the issuing judge. His duty is to ascertain whether the warrant sought is being reasonably requested on reasonable grounds. State v. Patterson, 83 Wn.2d 49, 515 P.2d 496 (1973). The determination of probable cause should be given great deference by reviewing courts. State *314v. Smith, 93 Wn.2d 329, 351, 610 P.2d 869, cert. denied, 449 U.S. 873, 66 L. Ed. 2d 93, 101 S. Ct. 213 (1980); State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981).
There is little in the record to indicate the informant was unreliable or the information provided was not credible at the time the warrant was obtained. He had provided 12 reports of criminal activity on prior occasions which were corroborated by Detective Niehl although only one prosecution resulted. At most it is unclear from the record whether the police officers informed or did not inform the magistrate that the informant was a felon on probation who may have been subject to a probation violation for having been in possession of a stolen firearm.
The fact nothing was found at the residence searched cannot be used to discredit the informant, after the fact, any more than discovery of contraband can be used to establish his credibility. The fact that the informant during discovery in the present action admitted lying to the police does not vitiate the prior finding of probable cause by a neutral and detached magistrate. The allegation that the officers deliberately misled Judge Stokes as to the reliability of the informant is unsupported by any specific facts in the record and merely invites speculation. As noted by Judge Andersen in Turngren v. King Cy., 38 Wn. App. 319, 328, 686 P.2d 1110 (1984) (quoting Turngren v. King Cy., 33 Wn. App. 78, 84, 649 P.2d 153 (1982)):
" [cjonclusory allegations, speculative statements or argumentative assertions that unresolved factual matters remain are not sufficient to preclude an order of summary judgment."
(Citations omitted.)
Nor is there any suggestion in the record that the police attempted to cleanse the information by any subterfuge or calculation. Under these circumstances police officers should not be subject to tort liability because the search failed to reveal the suspected munitions cache. The constitutional requirement for obtaining search warrants through the judicial process should offer some protection to police *315officers absent wrongdoing on their part in obtaining the warrant.
On remand for trial, I would limit the issue to whether the police officers reasonably believed they continued to have probable cause to search the Turngrens1 house when the informant indicated it was the wrong house immediately before they entered onto the premises. The reason for proceeding with the execution of the warrant should be fully presented to a jury in connection with the issues of false arrest, false imprisonment and malicious prosecution.
The causes of action based on slander, defamation and violation of 42 U.S.C. § 1983 (1976) are not supported by the record. I would affirm the Court of Appeals on these matters.
Brachtenbach, Callow, and Goodloe, JJ., concur with Skimas, J. Pro Tern.Judge John N. Skimas is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. 4, § 2(a) (amend. 38).