(concurring):
I concur in the court’s opinion but write separately to express some trepidation at the United States Supreme Court’s willingness to grant so much deference to the magistrate’s determination of probable cause when it is based solely on a written affidavit. The stated reason, as alluded to in the main opinion, is to encourage the use of warrants. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (“If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches_”). This strikes me as quite unsatisfying. It should be reason enough to rigidly require the use of warrants that the Constitution requires them and further requires that they be supported by probable cause.1 U.S. Const, amend. IV. If some deference is due the magistrate’s determination, it should be premised on some firmer basis.
For example, appellate courts sometimes accord deference where someone else has superior expertise. See, e.g., Taylor v. Utah State Training School, 775 P.2d 432, 434 (Utah App.1989). Perhaps the magistrate’s determination is entitled to some deference because the magistrate will see innumerable affidavits accompanying warrant requests in a year’s time, while appellate courts will review decisions to grant warrants only infrequently. Maybe the magistrate becomes a kind of probable cause expert as compared to appellate judges, and maybe that expertise should be recognized and deferred to.
Alternatively, some deference might be in order because the statements in the affidavit might be expanded upon, or any ambiguities clarified, in the course of the warrant applicant’s colloquy with the magistrate. Cf. Wilburn v. Interstate Elec., 748 P.2d 582, 584-85 (Utah App.1988) (while appellate court will construe unambiguous contract as a matter of law, deference is accorded to findings which proceed from extrinsic evidence offered to clarify ambiguous contract), cert. dismissed, 774 P.2d 1149 (Utah 1989). Perhaps the appellate court, not being privy to these explanations, should defer to someone who is. (On the other hand, such explanations should be made of record even if only by appropriate interlineation of the affidavit.)
Finally, perhaps some deference is due to reflect the institutional disadvantage under which the magistrate operates. The magistrate acts alone in considering warrant applications, often under hurried circumstances with minimal time for reflection or research. By contrast, appellate judges have the luxury of group decision-making, more time, and research assistance. See State v. Vigil, 815 P.2d 1296, 1298 (Utah App.1991). Perhaps in a very close case it is appropriate, in recognition of this institutional disadvantage, to affirm a probable cause determination that is found to be technically flawed upon close scrutiny, if a magistrate acting in good faith could nonetheless reasonably have concluded there was probable cause.
*836While rejecting the articulated basis for the federal courts’ willingness to defer, I am open to consideration of these other grounds for according deference to the magistrate. But on the surface, one wonders why a detailed, written affidavit should not be reviewed by an appellate court in the same way as other writings not requiring testimony (and thus a chance to judge credibility) to understand what they mean — as posing a question of law, with no particular deference accorded. See, e.g., Zions First Nat’l Bank v. National Am. Title Ins., 749 P.2d 651, 653 (Utah 1988) (issues of contract interpretation not requiring consideration of extrinsic evidence are matters of law); Wilburn, 748 P.2d at 584 (“When a contract is unambiguous, its interpretation is a question of law.”). Either an affidavit establishes probable cause or it does not. No credibility issues exist; no evidence has to be weighed. Why should not the appellate court read the affidavit and decide for itself the conclusion to be drawn, like it would with a written contract?
For my part, even if no deference was due the magistrate’s determination, I would still vote to affirm. The written affidavit in this ease clearly and unambiguously establishes probable cause to believe stolen goods would be found at the nearby place defendant frequented. With or without deference, the probable cause determination in this case may be readily sustained.
. Significantly, the Fourth Amendment does not speak in terms of what is arguably probable cause or what might have seemed at the time to be probable cause.