(concurring). I agree with the majority's holding that there was insufficient evidence presented to the John Doe judge for the material witness warrant to be issued pursuant to sec. 969.01(3), Stats. Having explained the insufficiency of the affidavit to show that a subpoena would be impracticable, I believe the court should not have evaluated the constitutionality of the arrest. The arrest was illegal under the requirements of the statute.
I therefore find unnecessary the discussion which relates a material witness warrant to the fourth amendment of the United States Constitution as a constitutional requirement for the sec. 969.01(3), Stats., warrant.
The fourth amendment discussion in the majority opinion implies that an arrest pursuant to a material witness warrant authorizes the police to treat the detained person like a prisoner detained for a criminal violation. The scope of the seizure, however, must be strictly tied to and justified by the circumstances which rendered it permissible. Terry v. Ohio, 392 U.S. 1, 19 (1968). Thus, execution of the material witness warrant may not allow police the authority to interrogate the witness prior to his appearance before a judge. *457Because interrogation may not be permissible, it is also unclear whether Miranda warnings1 are required. This case suggests that a proper witness arrest permits such interrogation and requires Miranda warnings. I emphasize that we leave to another case in which the issue is directly involved the decision of whether the officer serving the material witness warrant may conduct any interrogation.
This case also does not decide whether and to what extent Miranda warnings are required whenever a material witness arrest warrant is executed. A question about Miranda's first two admonitions seemingly exists if interrogation is prohibited. The two cautions include the detainee's right to remain silent and the warning that any statements he makes may be used against the person. It may be a long way temporally and geographically from the seizure of the person to the appearance before a judge for the setting of bail. Because volunteered and incriminating statements may be made during that time, the Miranda issue is important to determine the admissibility of such evidence in a criminal proceeding. It appears that other advice in Miranda is inappropriate, i.e., that the detainee has the right to an attorney and to have one appointed at government's expense if he is indigent.
By unnecessarily mentioning the fourth amendment in the majority opinion, the court also raises a question, without deciding it, as to what evidence the arresting officer may confiscate, if any, when the material witness warrant is executed, i.e., plain view contraband leading to a criminal charge unrelated to the John Doe investigation or evidence of the crime which *458is the subject of the John Doe investigation. The purpose of the material witness warrant is only to ensure that the person's knowledge of the matter being investigated will become known and will not be lost by flight of the witness. Whether incidental searches are permitted, therefore, is a debatable question.
The issues that I perceive arise because the exclusive purpose of the material witness arrest warrant is to bring the person directly before the John Doe judge or to assure his presence by imposing bail. A material witness warrant, therefore, may not authorize the same police conduct as a criminal arrest warrant. Thus, the majority opinion raises unnecessary questions foreign to this case as to the restrictions on police executing a material witness arrest based on the statutory warrant provisions.
Since we do not reach the Leon2 "good faith" exception to the warrant requirement in this case, and we accepted the case through certification, I would affirm the trial court's order of suppression. Because the documentation in this record before the John Doe judge was insufficient for the issuance of the material witness warrant, that issue is decisive. The insufficiency in the statutory process is that there is no statement that the witness was intending to leave the jurisdiction, except by innuendo, not even inference, and that he would not have responded to a subpoena. Therefore, we do not get to the issue for which certification of the case was granted.
The concurrence by Justice Abrahamson also is disturbing in its suggestion that the exclusionary rule under art. I, sec. 11 of the Wisconsin Constitution is not *459grounded in the fourth amendment. It is not a proper statement that Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923) established the Wisconsin exclusionary rule grounded exclusively in the state constitution independent of the United States Supreme Court with respect to fourth amendment violations. Hoyer was decided before Mapp v. Ohio, 367 U.S. 643 (1961) which superimposed the fourth amendment on the states through the fourteenth amendment.
I emphasize that there is no basis in our prior decisions which indicates that art. I, sec. 11 provides broader protection than the fourth amendment. In State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977), the court did state that "it is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment." (Emphasis added.) The court then cited two examples as indicative of our willingness to require protections under the state constitution before the Supreme Court mandated us to provide such protections under the fourteenth amendment. The examples were: (1) the right to counsel at state expense for indigents; and (2) the exclusionary rule for illegally secured evidence. These are not examples, however, of instances when we construed our constitution to provide broader protections than comparable federal constitutional provisions. Instead, they are examples of construing comparable provisions similarly when the federal constitutional requirement had not yet been held to be binding on the states under the fourteenth amendment.
*460In fact, the exclusionary rule provides the classic example of conforming our constitutional provision to the federal counterpart. In Hoyer v. State, 180 Wis. 407, the court considered whether to adopt an exclusionary rule for illegally seized evidence. The court first noted that art. I, sec. 11 of the Wisconsin Constitution "corresponds in substance" with the fourteenth amendment, but that the fourth amendment did not control the issue because it was not binding on the states. Id. at 411. The court, however, looked to the fourth amendment for guidance in construing the Wisconsin Constitution. The court stated:
"The federal and many other courts, however, have held that on proper challenge the state will not be permitted to use against a defendant charged with crime evidence which appears to have been seized or obtained by government officials by or through a violation of constitutionally guaranteed rights." Id. at 412.
The court then decided to "align itself with rulings of the United States Supreme Court" by adopting an exclusionary rule. The court stated:
"For ourselves we elect to stand, as this court has heretofore stood, with the federal and other courts which consider these provisions of the Bill of Rights as embodied in constitutions to be of substance rather than mere tinsel. We hold, therefore, that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to sec. 11, art. I, Wis. Const., supra, and was improperly received in evidence against him on the trial in violation of his rights under sec. 8, art. I, Wis. Const.
*461"This court squarely aligned itself with rulings of the United States supreme court in Thornton v. State, 117 Wis. 338, 341, 93 N.W. 1107, and State v. Murphy, 128 Wis. 201, 207, 107 N.W. 470, each of which cited with approval Boyd v. U.S., 116 U.S, 616, 6 Sup. Ct. 524, and Bram v. U.S., 168 U.S. 532, 18 Sup. Ct. 183, infra." Id. at 415.
Thus, Hoyer is not an example where this court construed art. I, sec. 11 of the Wisconsin Constitution to be more protective than the fourth amendment. The Hoyer decision patterned art. I, sec. 11 after the fourth amendment, rather than anticipating Supreme Court interpretations of the fourth amendment.
Finally, I do not believe it appropriate, as the concurring opinion has done, to comment on or attempt to analyze United States v. Leon, since we have stated in the majority opinion that we do not reach the Leon case and its "good faith" exception to the exclusionary rule due to the inadequate affidavits for issuance of the material witness arrest warrant.
I am authorized to state that Mr. JUSTICE LOUIS J. CECI joins this concurring opinion.
Miranda v. Arizona, 384 U.S. 436 (1966).
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984).