(dissenting)—In my opinion the majority, in its effort to sustain the validity of the search warrant issued in this case, overlooks the vital issue (alluded to by appellant in his brief, and urged before this court in oral argument) which requires that appellant’s conviction be reversed. I, therefore, respectfully dissent.
The requirements for the issuance of search warrants is governed by the fourth amendment to the United States Constitution, which provides, in part, that:
*969[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The fourteenth amendment to the United States Constitution provides, in part:
No state shall . . . deprive any person of life, liberty, or property, without due process of law; ....
The Fourth Amendment is applicable to this state through the Fourteenth. Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 Sup. Ct. 1684 (1961); Ker v. California, 374 U. S. 23, 10 L. Ed. 2d 726, 83 Sup. Ct. 1623 (1963).
In addition, article 1, section 7, of the Constitution of Washington provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
It has been held that, although this latter provision differs very slightly in language from the fourth amendment to the United States Constitution, the two provisions are identical in purpose and substance. State v. Miles, 29 Wn.2d 921, 190 P.2d 740 (1948); Seattle v. See, 67 Wn.2d 475, 408 P.2d 262 (1965), rev’d on other grounds, 387 U. S. 541, 18 L. Ed. 2d 943, 87 Sup. Ct. 1737 (1967).
In Aguilar v. Texas, 378 U. S. 108, 114, 12 L. Ed. 2d 723, 84 Sup. Ct. 1509 (1964), the requirements of an application for a search warrant based, as in the present case, upon hearsay information, which are necessary to meet the requirements of the fourth and fourteenth amendments to the United States Constitution, were set forth as follows:
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U. S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 *970U. S. 528, was “credible” or Ms information “reliable.”[1] Otherwise, “the inferences from the facts which lead to the complaint” will be drawn not “by a neutral and detached magistrate,” as the Constitution requires, but instead, by a police officer “engaged in the often competitive enterprise of ferreting out crime,” Giordenello v. United States, supra [357 U. S. 480, 2 L. Ed. 2d 1503, 78 Sup. Ct. 1245], at 486; Johnson v. United States, supra [333 U. S. 10, 92 L. Ed. 436, 68 Sup. Ct. 367], at 14, or, as in this case, by an unidentified informant. (Footnote omitted.) (Italics mine.)
In this case, the written complaint (set forth in substance in the majority opinion at page 961), when considered alone, clearly fails to state sufficient probable cause for the issuance of a search warrant. The magistrate is not informed thereby of any of the “underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or . . . [her] information ‘reliable.’ ”" 2
It is only by the consideration of the written complaint, together with the affidavits signed by Detectives Waitt and Fawcett, Justice of the Peace Evangeline Starr, and Deputy Prosecutor Stang, which were prepared after a motion to suppress had been interposed by appellant, that the trial court and this court were and are able to find any semblance of probable cause to support the issuance of the search warrants in this case.
In Aguilar v. Texas, supra, the Supreme Court stated, in a footnote at page 109 of the opinion, that:
It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.
*971Appellant incorrectly contends that such requirement is met only where consideration is limited to the face of the written complaint or affidavit for search warrant. This is the net effect of Fed. R. Crim. P. 41, 18 U.S.C.A., which is referred to in the majority opinion at page 955.
Rule 41 provides, in part:
(c) Issuance and contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant.
It has been held that, under this rule, “affidavit” refers to a sworn statement in writing, and that, if sworn information was presented to the commissioner other than that contained in affidavits, such information could not be considered by him or by the reviewing court on motion for the return of property seized and to suppress such property for use as evidence. United States v. Birrell, 242 F. Supp. 191 (S.D. N.Y. 1965); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966); United States v. Walters, 193 F. Supp. 788 (W.D. Ark. 1961). I agree, however, that this federal rule of criminal procedure is not applicable to criminal cases in this state, as is correctly pointed out in the majority opinion.
In this state, the magistrate is not limited to the written complaint for search warrant in determining the existence of probable cause. In Ladd v. Miles, 171 Wash. 44, 49, 17 P.2d 875 (1932), we said:
That all the facts going to show probable cause need not be stated in the affidavit or complaint, seems to be established by our own cases of State ex rel. Hodge v. Gordon, 95 Wash. 289, 163 Pac. 772; State v. Voelker, 137 Wash. 156, 242 Pac. 6, and State v. Noah, 150 Wash. 187, 272 Pac. 729; . . . .
And, in State v. Malbeck, 69 Wn.2d 695, 419 P.2d 805 (1966), it was held that a signed affidavit for a search warrant was not required, so long as the information contained in the unsigned document constituting probable cause was stated under oath.
However, even though the issuing magistrate is not limited to a consideration of the written complaint or affidavit *972under the law in this state (as he would be under Rule 41), but may consider oral testimony and such other evidence as may be presented to him at the time the warrants are sought, the question is whether or not there must be some form of contemporaneous record made of such evidence.
As appellant points out in his brief, in contending that Rule 41 should be applied:
The problem created by not requiring a writing is that a “swearing contest” then results as to what occurred before the magistrate.
Since no person is present before the magistrate except the police officer complainant a defendant is faced with a “chamber of mirrors” or “selective rememberance” problem in determining whether the magistrate actually had probable cause to issue the warrant.
The present rule allows the officers seeking the warrant to file affidavits as fast as the defendant can raise omissions thus precluding any appellate regulation of whether the magistrate acted properly in granting the complaint.
Unfortunately, there is a dearth of authority on the question of whether, in the absence of specific statutory requirement of a contemporaneous record or language in a state constitution which requires such a record, due process requires such a record. The reason for such a hiatus is obvious since in the federal courts, and in most states, when the question has arisen, such statutory or constitutional requirement does, in fact, exist.
My research has disclosed no authority in this state specifically requiring or not requiring some contemporaneous record. The question seems one of first impression in this court.
One state, Wisconsin, has considered the question absent specific statutory authority. In Glodowski v. State, 196 Wis. 265, 271, 220 N. W. 227 (1928), the Wisconsin Supreme Court stated that:
It is an anomaly in judicial procedure to attempt to review the judicial act of a magistrate issuing a search warrant upon a record made up wholly or partially by oral testimony taken in the reviewing court long after *973the search warrant was issued. 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. This record of the facts presented to the magistrate need take no particular form. The record may consist of the sworn complaint, of affidavits, or of sworn testimony taken in shorthand and later filed, or of testimony reduced to longhand and filed, or of a combination of all these forms of proof. The form is immaterial. The essential thing is that proof be reduced to permanent form and made a part of the record which may be transmitted to the reviewing court.
Without some such requirement, there is no reliable way that a reviewing court can determine whether the evidence before the magistrate at the time the warrants issued complied with the constitutional requirements as applied in Mapp v. Ohio, supra, Ker v. California, supra, and Aguilar v. Texas, supra. Such a requirement seems to me to be imperative.
I would note in addition to the above that, even considering the attempts to recreate the justice court proceedings as valid, the subsequent affidavits introduced, together with the record from the justice court and testimony elicited at the superior court hearing, fail, in my opinion, to establish that a sufficient showing of probable cause was made before the issuing magistrate to justify her issuance of warrant No. 0297.
In State v. McClung, 66 Wn.2d 654, 659, 404 P.2d 460 (1965), we quoted with approval from State v. Bantam, 163 Wash. 598, 600, 1 P.2d 861 (1931), as follows:
[M]ere anonymous information, unsupported by other facts then within the knowledge of the officer or learned by subsequent investigation, is not of itself sufficient to constitute reasonable and probable cause. (Italics mine.)
See, also, In re Little v. Rhay, 68 Wn.2d 353, 357, 413 P.2d 15 (1966).
*974Turning to the affidavit of the officers, Fawcett and Waitt, which purportedly reflects the information which was presented to the magistrate at the time the search warrants were sought, we find the statement:
Regarding 5514% 11th N. E., Seattle, Washington, your affiants advised that this was the residence of Irving Walcott, a partner in the Eigerwand Coffee House in the University District where many of the suspected drug users in the University District congregate; that Walcott and the Eigerwand had been suspected as a source of marihuana and dangerous drugs in the District since March of 1965 when it came to the attention of the Seattle Police Department from informants that both were involved.
I cannot agree with the majority that this information, if given to the magistrate at the time the warrants issued, fulfills the second requirement of Aguilar, supra.
Certainly, the fact that a man’s place of business is frequented by suspected drug users cannot constitute corroboration for information from an otherwise untested and unknown informant, sufficient to fulfill the constitutional requirements of Aguilar, supra, and to justify the issuance of a search warrant authorizing an invasion of that man’s home. Such would constitute a flagrant application of the odious doctrine of “guilt by association.”
Secondly, no basis is given for the police suspicion that appellant and the Eigerwand Coffee House were a source of marijuana and dangerous drugs other than that, in March, 1965, the police received some unspecified information “from informants that both were involved.” Such informants are not identified, nor do the officers even allege that they were “reliable.”
It is not sufficient that the officers do not refer to informants as “untested or unreliable” (see majority opinion, page 966), but rather it is necessary that the state establish the informant’s reliability. Aguilar v. Texas, supra.
Finally, the statement in the majority opinion that “the magistrate’s affidavit conclusively shows that she was told by the officers that these [italics mine] informants were reliable,” is simply incorrect.
*975During the hearing in superior court, referred to on page 961 of the majority opinion. Justice of the Peace Starr testified as follows:
Q. They [the officers] talked about other informants with respect to that address [5514% 11th N. E.]? A. I couldn’t say if they did.
And later during the same hearing she testified as follows:
Q. . . . Did the officers tell you who those informants were, these informants of March, 1965? A. No. Q. They didn’t tell you. Did they tell you anything about these informants? Did they tell you their age, whether they were narcotics users themselves? A. I am sure they didn’t. I mean, that is my recollection. Q. Based upon your recollection can you tell me anything about those informants? A. They may have given some information about those informants. Q. What information was that? A. I can’t recall. Q. So for the purposes here today you can’t remember any information given to you about those informants. If I were to ask you to describe those informants and tell me about those informants, you would have to say I don’t know? A. If you would refresh my recollection I probably would recall. Q. I can’t refresh your recollection for the simple reason I wasn’t present there this day and there was no record kept and this is one of the problems that we have here.
At the time the detectives appeared before Justice of the Peace Starr, five separate complaints were presented, upon the basis of which five separate search warrants were sought by the officers, one for each of five separate addresses. We are concerned with only one of those addresses in this case, 5514% - 11th N.E., where appellant Walcott resided.
The statement contained in the portion of the magistrate’s affidavit quoted in the majority opinion at page 967 does not relate to 5514% - 11th N.E., nor to any specific address.3
*976I am unable to find in the record any support for the assertion in the majority opinion that the magistrate’s affidavit “conclusively” shows that she was told by the officers that the informants of March, 1965 were reliable.
In summary, the written complaint for search warrant No. 0297, considered alone, was insufficient to justify the issuance of the search warrant in question. The insufficient, written complaints, together with the warrants themselves and the return thereon, constituted the entire record of the evidence which was before the issuing magistrate. The state contends that the record could have reflected more, but the fact remains that it did not.
Two months after the warrants were issued and the dwelling house of appellant was invaded and searched by the police and evidence was seized upon which the conviction of appellant is based, motions to suppress were interposed by appellant. The state then, for the first time, sought to “fill the gaps” in the insufficient, written record made before the magistrate, with affidavits based upon affiant’s memory of what had occurred at the time the search warrants were issued. The consideration of these subsequent affidavits by the trial court, and the consequent denial of appellant’s motion to suppress, in my opinion, constituted a denial of due process requiring a reversal of appellant’s conviction.
However, even if the anomaly proposed by the majority opinion is to now be adopted as the rule in this state, it is clear, from the recreated record of the proceedings before the issuing magistrate, that there was not a showing of probable cause sufficient to satisfy the constitutional standards set forth by the United States Supreme Court in Aguilar, supra, at the time the warrants issued. No credible basis was presented for the officers’ reliance on the word of the anonymous informant.
*977The warrant having been improperly issued, the conviction of appellant, which rests on the evidence unlawfully seized pursuant thereto, must be reversed, and appellant’s sentence vacated. I would so order.
February 13, 1968. Petition for rehearing denied.
Justice of the Peace Starr testified at the superior court hearing, referred to on page 949 of the majority opinion, as follows: “Q. Well, what did the police tell you that made you believe that she [the informant] was a person entitled to be believed? A. Nothing. Q. What did Mr. Stang tell you that made you believe she was entitled to be believed? A. Nothing. I relief [sic] upon my observations.” (Italics mine.)
The informant, under oath at the hearing on the motion to suppress, denied having given information to the officers relating to three of the five addresses, and further denied having any knowledge at all regarding those three addresses.
If the magistrate’s statement can be rationally construed to relate to any specific address, it must necessarily (if it is to be read consistent with the version offered in the affidavits of the police officers) relate to 2303 N. E. 65th and 4243 11th N. E. Regarding these two addresses, the officers assert in their affidavit that information was received from *976“reliable” informants. See majority opinion, page 964. There is simply no basis for contending that it related specifically to 5514-1/2 11th N. E., let alone that it “conclusively” establishes that information as to that, specific address came from “reliable” informants.