dissenting:
I respectfully dissent. The majority opinion ignores the plain and unambiguous wording and the requirements imposed by the General Assembly’s enactment of section 16-3-304(1), 8A C.R.S. (1986), and its identical counterpart, Crim.P. 41(d).1 Crim.P. 41(d) was formulated to impose the same requirements as those imposed by the identical federal rule, and the federal courts’ interpretation of Fed.R.Crim.P. *2441(c), prior to the change in its language, provides some guidance.2
The trial judge considered the evidence and entered the suppression order, which provides in pertinent part:
The Defendant contends that since the warrant was not in compliance with the fourth element of the Rule and Statute that the warrant was invalid and the fruits of the search must be suppressed.
This is a case of first impression in Colorado. However, Federal courts considered the issue under F.R.Crim.P. Rule 41(d), which is identical to the Colorado Rule until 1972. Both King v. U.S., 282 F.2d 398 (4th Cir.1960) and U.S. v. Carignan, 286 F.Supp. 284 (D.C.Mass.1967) recognize that it was established federal law that a warrant without the affiant’s name is fatally defective. The requirement that the affiant be named in the warrant is not a Fourth Amendment right. U.S. v. Soriano, 482 F.2d 469, at 478 (5th Cir.1973). However, it does protect several important interests. It fixes responsibility in the event the warrant is not executed. It assures the judge that an appropriate officer will serve the warrant. It assures the defendant that the search is made by an authorized officer and provides a record for postsearch determination of whether the search was conducted by an authorized officer, id. The warrant which was issued in this case does not protect these interests. Not only was the affiant’s name not on the warrant, the order directing the search was changed so as to read “To any officers authorized by law to execute search warrants ...” (emphasis added).
The People argue that “practical accuracy rather than technical nicety” is the measure for determining whether an error is such as to require suppression. The requirement that the affiant’s name appear on the warrant is one of only four clear elements required by the Legislature of the State of Colorado before a search warrant can be issued. If this Court were to rule that the failure to comply with this explicit requirement is of no consequence, it would be nullifying the express wishes of the legislature.
The search warrant dated February 11, 1992 was not valid under Rule 41(d) and Section 16-3-304, C.R.S., nor are the circumstances surrounding this warrant sufficient to serve the interests protected by law.[3] Therefore, the Defendant’s Motion to Suppress all evidence obtained in that search must be granted.
In my view, the trial judge’s suppression order is supported by the record and should be affirmed.4
I prefer the analysis of United States v. Carignan, 286 F.Supp. 284 (D.Mass.1967) (suppressing evidence based on a misstatement of a name on a warrant due to an oversight, mistake, or carelessness) and Howard v. State, 199 Md. 529, 87 A.2d 161 (1952) (same) to United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969) (holding that absence of name on a warrant did not prejudice the substantial rights of a plaintiff). See also King v. United States, 282 F.2d 398, 400 (4th Cir.1960) (stating that *25“[i]t is established law that the warrant would be fatally defective if no name were mentioned”) (citing United States v. Kaplan, 286 F. 963 (S.D.Ga.1923)).
Other jurisdictions with similar mandatory search warrant requirements have held that the failure of the issuing judge to include the name of the affiant in the search warrant is a fatal defect. In Howard, the defendant in a prosecution for violating the laws against lottery appealed from a judgment of conviction and moved to quash a search warrant that did not contain the name of the person upon whose application the warrant had issued. Howard disagreed with the characterization by the trial court of the misstatement or omission as “immaterial.” Howard, 87 A.2d at 162. Instead, Howard found the defect to be fatal and reversed the case. Id. at 163.
In my view, the majority’s conclusion that evidence should not be suppressed based on an admitted and clear violation of the language deprives the mandatory requirement in the statute and the rule of all meaning. See Sargeant Sch. Dist. v. Western Serv., Inc., 751 P.2d 56, 60 (Colo.1988) (stating that “[wjhere the word ‘shall’ is used in a statute, it is presumed to be mandatory”). The majority thereby ignores the additional requirements set forth in section 16-3-304(1) and Crim.P. 41(d) that are not constitutionally mandated.
Accordingly, I would affirm the trial judge and suppress the evidence seized in this case.
I am authorized to say that Justice KIRSHBAUM and Justice YOLLACK join in this dissent.
. Section 16-3-304(1) and Crim.P. 41(d) are identical and provide:
If the judge is satisfied that grounds for the application exist, or that there is probable cause to believe that such grounds exist, he shall issue a search warrant, which shall:
(a)Identify or describe, as nearly as may be, the premises, person, place or thing to be searched;
(b) Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;
(c) State the grounds or probable cause for its issuance; and
(d) State the names of the persons whose affidavits or testimony have been taken in support thereof.
(Emphasis added.)
. I agree with the majority that it is "significant” that the 1972 amendments to Fed.R.Crim.P. 41(c) deleted the requirement that the affiant’s name be contained within the warrant. However, it is even more significant that since 1972, neither section 16-3-304(1) or Crim.P. 41(d) has been altered. The failure signifies the importance of the additional requirements and a desire to maintain the requirements of the pre-amendment federal rule.
. The trial court added in a footnote:
The federal rule has been amended to require the attachment of the affidavit to the search warrant. If that had been done in this case, the Court would find that the interests served by Colorado’s present rule would have been fulfilled, even though the affiant’s name did not appear on the face sheet. The evidence here not only failed to establish that the affidavit was provided with the warrant, the evidence also failed to establish that any of the interests protected by the Rule were fulfilled in another manner. See Soriano, 482 F.2d at 478.
.The trial court has not passed on the sufficiency of the search warrant, based on an affidavit that relies on unidentified and anonymous informants with no known credibility and on an unidentified confidential informant that was not identified as having been reliable in the past.