dissenting from Part IVB and Part VI of the Court’s opinion:
I respectfully dissent. The Court’s opinion holds that the lack of signature invalidates the search warrant, and that therefore the evidence obtained, the murder weapon and incriminating shoes, should have been suppressed. I disagree, for three reasons: (1) the Idaho Constitution does not by its language require in each and every ease that to be valid a search warrant must be signed by a judge; (2) the criminal rules of this Court do not require that a search warrant be “signed” but only “issued” by a judge, and these rules take precedence over conflicting statutory provisions; and (3) even if the search warrant is deemed unconstitutional in this case, the exclusionary rule should not be employed to remedy the inadvertent mistake of a judge and the misrepresentation of a police officer to the citizen whose premises were the subject of the search.
Art. 1, § 17 of the Idaho Constitution states that “no warrant shall issue without probable cause shown by affidavit____” This constitutional provision does not, by its express terms, include the requirement of signature, but only issuance. The constitution’s language is particularly significant because this provision was adopted in 1890, some 26 years after the enactment of I.C. §§ 19-4401, 19-4406, and 19-4407. If the framers of our Constitution had wished to impose a signature requirement, they could simply have employed the same language as that used in the statutes.
I believe that a better analysis, one which comports with the text of our Constitution and that protects individual rights without unnecessarily undermining law enforcement objectives, is one which does not treat an unsigned search warrant as per se invalid, but which examines the precise circumstances of the individual case to determine whether the judge had made the essential probable cause determination before issuing the warrant. Such an approach is supported by decisions from numerous other jurisdictions. See, e.g., United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977) (as long as magistrate in fact performs substantive tasks of determining probable cause and authorizing issuance of warrant, Fourth Amendment is satisfied); Yuma County Attorney v. McGuire, 109 Ariz. 471, 512 P.2d 14, 15-16 (1973) (key element in issuance of warrant is consideration by a neutral and detached magistrate; where judicial consideration was given to question of existence of probable cause, probable cause for issuance of warrant was found, and affidavit was signed by the judge, inadvertent failure to sign the warrant does not invalidate it); State v. Spaulding, 239 Kan. 439, 720 P.2d 1047, 1048-49 (1986) (where judge makes finding of probable cause and intentionally issues warrant, failure to sign warrant is mere oversight or technical irregularity); Commonwealth v. Pellegrini, 405 Mass. 86, 539 N.E.2d 514, 516 (1989) (failure to sign otherwise valid war*876rant, where there is no question that the judge intended to issue warrant, and the judge signed the officer’s probable cause affidavit, is ministerial defect which does not invalidate the warrant); State v. Andries, 297 N.W.2d 124, 125 (Minn.1980) (requirement that issuing judge sign warrant is purely ministerial task; warrant is valid so long as issuing judge performs substantive tasks of determining probable cause and ordering its issuance); People v. Sanchez, 131 Cal.App.3d 323, 182 Cal.Rptr. 430, 434 (1982) (inadvertent absence of the magistrate’s signature on traditional warrant is technical defect which does not invalidate the warrant); People v. Superior Court for the County of Los Angeles, 75 Cal.App.3d 76, 141 Cal.Rptr. 917, 919 (1977) (primary purpose of Fourth Amendment is to require that decisions about sufficiency and reliability of evidence used to justify a search be made by a neutral and detached magistrate); State v. Smith, 562 N.E.2d 428, 429-30 (Ind.Ct.App.1990) (provided judge found probable cause and intended to issue warrant, omission of signature will not invalidate warrant).
The question whether the absence of a magistrate’s signature on a warrant is a mere technical oversight and clerical error, or whether the absence of the signature renders the warrant constitutionally invalid because no probable cause was found, should depend on the facts of the particular case. In this case, the evidence is uncontroverted that the magistrate intended to sign the search warrant. In his affidavit, the magistrate specifically stated under oath that he believed probable cause existed to find evidence of Morris’ murder at the Henry residence, but that as an oversight, he simply forgot to sign the warrant. The magistrate’s testimony at the hearing after remand likewise confirmed that the magistrate had determined probable cause existed for the search. Under the facts of this particular case, I would hold that the fact that the search warrant was not signed by the magistrate on the date the search was conducted was a clerical or ministerial error that did not invalidate the warrant.
I disagree that the application of I.C. § 19-4401, 19-4406 and 19-4407 would render this search invalid, for I view these statutes as having been superseded by I.C.R. 41. Rule 41 of the Idaho Criminal Rules does not include a judicial signature requirement for the issuance of a search warrant by a judge, and Idaho statute and case precedent support the proposition that when court rules and statutes conflict in matters of procedure entrusted to the courts, then the statute must give way.
I.C. § 1-212 provides that “[t]he inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed.” This statute dates from 1941, long after the 1864 statutes at issue here. Pursuant to its inherent rule-making authority, this Court adopted the Idaho Criminal Rules, including Rule 41, which became effective July 1,1980. Rule 41 specifically addresses the issuance of search warrants by a district judge or a magistrate. Although Rule 41(e) contains a detailed description of the circumstances under which a judge or magistrate may “issue” a warrant, and an extensive description of the contents of a warrant, nothing in Rule 41 requires that the warrant issue only upon the signature of a judge or magistrate. Given the detailed nature of the rule, and the fact that the 1864 statutes had long been in existence at the time of the Rule’s adoption, I believe that the omission of any specific signature requirement means that a warrant is valid under the Rules of this Court even without the signature of a judge or magistrate, so long as the other requirements for issuance of a search warrant are met, as they are in this case.
In an earlier case in which a statutory provision was deemed to conflict with Rule 41(c), State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975), this Court stated that because the rule was in full force and effect at all relevant times, the statute in question, I.C. § 19-4404, which required examination of the complainant and any witnesses by the magistrate before issuance of a search warrant, was of no further force and effect. Id. at 654, 534 P.2d at 774. See also, State v. Maxey, 125 Idaho 505, 508, 873 P.2d 150, 153 (1994); State v. Harbaugh, 123 Idaho 835, 837 n. 3, 853 P.2d 580, 582 n. 3 (1993); State v. Cur*877rington, 108 Idaho 539, 540-41, 700 P.2d 942, 943-44 (1985). The Court’s analysis here should be guided by these earlier cases. The statutory requirement of a signature is procedural and not substantive, and therefore the Court’s own Rule should take precedence over a conflicting statute.
The Court’s opinion here states that Idaho Code §§ 19-4401,19-4406, and 19-4407 “create a substantive right in a citizen to refuse to permit a search pursuant to an unsigned warrant.” (italics added). I believe this statement is dicta because all the Court is called upon to decide is whether the lack of a magistrate’s signature invalidates a search warrant. The issue whether a citizen could lawfully resist police efforts to execute a search pursuant to an unsigned warrant, although one supported by a probable cause finding, is not before the Court. The Court’s statement could be construed to encourage confrontations between citizens and the police when searches are being initiated. Legal avenues are available to citizens to challenge an allegedly invalid warrant: a suppression motion, a post-conviction relief proceeding, or a civil action for damages under 42 U.S.C. § 1983 or the Idaho Tort Claims Act. In such court proceedings a full factual record can be developed regarding whether the issuance of the warrant was supported by probable cause. Exactly such proceedings occurred here in the context of the post-conviction relief proceeding, in which the magistrate testified under oath that he had determined the facts supported a finding of probable cause for the issuance of the search warrant here.
My dissent is also based upon what I perceive as an unnecessary application of the exclusionary rule. For the reasons stated by Justice Schroeder in Part II of his dissent, infra, I would hold that the exclusionary rule should not be applied in this case.
For all the foregoing reasons, I would affirm the district court’s decision that the lack of signature did not invalidate the search warrant.