concurring in part and dissenting in part:
Relying in part upon a misbegotten footnote of my creation in State v. White, 167 W.Va. 374, 280 S.E.2d 114 (1981), the majority today holds that:
Under Rule 41(c), W.Va.R.Civ.P., it is improper for a circuit court to permit testimony at a suppression hearing concerning information not contained in the search warrant affidavit to bolster the sufficiency of the affidavit unless such information had been contemporaneously recorded at the time the warrant was issued and incorporated by reference into the search warrant affidavit.
Supra, 167 W.Va. at 374, 280 S.E.2d 114. Because I now believe my understanding of Rule 41(c) was incorrect in White, I believe the majority’s understanding is incorrect today. Accordingly, I dissent in part.
Rule 41(c) provides in pertinent part:
Before ruling on a request for a warrant the magistrate or circuit judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit.
Rule 41(c) thus provides that a warrant affidavit may be supplemented by contemporaneous oral testimony given the judge or magistrate by the affiant provided two conditions are met: (1) The affiant is under oath when giving the testimony, and (2) the affiant’s testimony is contemporaneously recorded and incorporated into the affidavit.
U.S. Const. Amendment IV requires that "... no warrants shall issue, but upon probable cause, supported by oath or affirmation ...” (emphasis supplied). Few courts have ruled directly upon the issue of whether this clause requires that all oral statements presented in an application for a warrant must be made under oath. However, those courts that have considered the issue have uniformly held that unsworn oral testimony may not form a basis for a determination of probable cause. See Frazier v. Roberts, 441 F.2d 1224 (8th Cir.1971); Tabasko v. Barton, 472 F.2d 871 (6th Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2288, 36 L.Ed.2d 974 (1973); People v. Asaro, 57 Misc.2d 373, 291 N.Y.S.2d 613 (1968). I greet with some skepticism the contention that, in this secular age, oath-taking provides a meaningful prophylaxis against prevarication. However, courts having considered the question make colorable contentions that oath-taking is constitutionally required. Although I am not persuaded that an oath should be accorded talismatic qualities in the law, I am not prepared to say that an oath is not required by the law of the land.
In the case at bar, it is undisputed that Officer Davis was not under oath when he testified to the magistrate regarding the reliability of the confidential informant. Accordingly, the circuit judge should not have permitted testimony regarding Officer Davis’ unsworn statements to the magistrate to be offered during the suppression hearing. Insofar as the majority’s holding is based on the Fourth Amendment’s re*627quirement that oral testimony supporting probable cause be sworn (of which requirement Rule 41(c) is merely reiterative), I concur.
However, although the oath-taking prong of Rule 41(c) may be a constitutional imperative, the contemporaneous recording prong is not. The Fourth Amendment does not require that sworn oral testimony given in support of an application for a search warrant be recorded or reduced to writing. United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3rd Cir.1973); Sherrick v. Eyman, 389 F.2d 648 (9th Cir.1968), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968); United States v. Berkus, 428 F.2d 1148 (8th Cir.1970); McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984); Tygart v. State, 248 Ark. 125, 451 S.W.2d 225 (1970); State v. Walcott, 72 Wash.2d 959, 435 P.2d 994 (1967). Contra, see Note, “The Constitutionality of the Use of Unrecorded Oral Testimony to Establish Probable Cause for Search Warrants,” 70 Va.L.Rev. 1603 (1984).
Today the majority elevates the contemporaneous recording prong of Rule 41(c) to a quasi-constitutional level in that it implies that the same sanctions should be applied for violation of the rule as are applied to violation of the Constitution. The majority holds that testimony regarding sworn but unrecorded statements made in support of a warrant application may not be introduced “to bolster the sufficiency of the affidavit” at a suppression hearing. The result of such a holding is that warrants issued upon probable cause and supported by oath or affirmation may be held invalid due to the violation of a rule of mere procedural rather than constitutional dimension. Given the practicalities of law enforcement in this State, I believe this to be grossly ill-advised.
The Federal Rules of Criminal Procedure were promulgated by the 'Supreme Court of the United States in order to outline the procedures to be followed by federal law enforcement officers, federal magistrates, and federal judges. Rule 41(c) at promulgation comported with the formalistic spirit exemplified by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In a grand gesture of mimesis, expedience and sloth, the West Virginia Supreme Court of Appeals adopted the federal rules more less wholesale in 1981. However, the realities of law enforcement at the federal level stand in stark contrast to the realities of law enforcement in West Virginia.
Federal law enforcement officers and federal magistrates are blessed with high pay, excellent and extensive training, and superb logistical support. For example, an FBI agent working in the field makes between $30,000 and $47,000 per year. A policeman in the City of Mann, Logan County, makes approximately $10,000 per year. A full-time United States Magistrate makes $68,400 per year. In West Virginia, a full-time magistrate makes between $17,-250 and $25,125 per year, and the judges of this Court earn $13,400 per year less than the federal judicial officer who disposes of traffic tickets issued in National parks! No individual may serve as a federal magistrate unless he has been for at least five years a member of the bar in good standing. 28 U.S.C.A. § 631(b)(1) (1982). Of a magistrate in West Virginia it is required only that: (a) he be at least twenty-one years of age, (b) he have a high school education or its equivalent, (c) he not have been convicted of any misdemeanor or felony involving moral turpitude, and (d) he attend a training course for magistrates. W.Va.Code 50-1-4 (1976).
Upon election, a magistrate in this State is given one week of orientation regarding the entirety of his official duties before assuming office. Thereafter he is required to attend a series of four-day training sessions, held on the average of three times per year. During the average training session, a magistrate receives approximately three hours of instruction regarding the constitutional and procedural facets involved in the issuance of a search warrant. At the end of each four-day session, the magistrate must take an examination on the material covered during the session. The magistrate must achieve a score of seventy out of one hundred on four of six examinations administered (one per four-day session) in order to be certified. How*628ever, a magistrate who fails to obtain certification is not required to step down.
In a nutshell, then, the average magistrate in West Virginia is a high school graduate living in a rural area, paid $17,250 per year, and given as little as three hours of instruction regarding search warrants. The average federal magistrate has a college degree, a law degree, at least five years of practice at the bar, and is paid $68,400 per year. It is absurd to hold (where the Constitution does not command it) a magistrate of this State to the same high standard required of his federal counterpart, when doing so will not prompt the legislature to improve the qualities of our magistrates, and the only effect will be to release dangerous felons to prey upon society at large.
Moreover, the federal version of the contemporaneous recording prong of Rule 41(c) was promulgated in 1972, a by-product of the criminal procedure revolution wrought by the Warren Court. Since that time (and for that matter, since the promulgation of the West Virginia Rules of Criminal Procedure in 1981), U.S. supreme court decisions have evidenced a reassessment of the law of criminal procedure in general. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) both indicate a rethinking of the proper balance to be struck between the civil rights of the accused and the duty of the state to protect the public. Part of this reassessment has involved an emerging skepticism about the desirability of a rigidly formalistic approach to Fourth Amendment questions. In light of the retreat from formalism in actual constitutional jurisprudence sounded by Gates and Leon, it seems highly inappropriate that we should allow criminal offenders to go free due to a magistrate’s failure to comply with a procedural technicality lacking constitutional significance.
The majority holds that failure to comply with the contemporaneous recording prong of Rule 41(c) renders a warrant fatally defective. In the absence of a Leon good faith exception, evidence obtained during a search authorized by a defective warrant may not be used against the accused at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (19611. Conseouentlv. many criminal offenders may go free as a result of a magistrate’s procedural error. Although such a holding may not trouble the majority too greatly in this marijuana case, I doubt my colleagues would have been so solicitous had Mr. Adkins been a psychopathic axe-murderer. And I believe it is imprudent to indicate to circuit courts hearing serious criminal cases that failure to comply with the contemporary recording prong of Rule 41(c) necessarily entails the result reached in this case.
The contemporaneous recording prong of Rule 41(c) is not constitutional law, nor should it be. It is a hortatory directive to the law enforcement officers and magistrates of this State regarding the preferred method of preparing a warrant affidavit. To exhort our law enforcement officers and magistrates to abide by the practice outlined in the contemporaneous recording prong of Rule 41(c) is indubitably laudable. To allow dangerous criminals to walk the streets of this State due to the purely procedural miscues of these minimally paid, minimally trained, and minimally supported men and women is a farce of Brobdingnagian proportion, a dangerous social policy, and a serious breach of our duty to protect the people of this State.
I am authorized to report that BROTHERTON, J., joins me in this dissent.