DISSENTING OPINION. I think that the search warrant was not issued upon probable cause. The affidavit upon which *Page 280 the search warrant was issued shows that the fact of probable cause is sustained solely by hearsay evidence. Had the affidavit that was submitted been supported by the affidavit of Arnold Waller of the truth of the fact stated in the affidavit in issue, we would have a case not unlike, but similar to the decision in other cases.
I therefore dissent from that part of the opinion of the court which decides that the affidavit quoted is sufficient to show probable cause for the warrant.
The opinion says that because of failing to show an abuse of power in issuing a search warrant because appellant declined to cross-examine the mayor, who testified that he heard evidence under oath with reference to probable cause, the search warrant was lawfully issued. I dissent from this decision. The Constitution (§ 11, Art. I) makes no set-up of procedure, but says that "no warrant shall issue but upon probable cause, supported by oath or affirmation." The whole procedure is specifically provided by statute in this state. The statute provides that probable cause shall be shown by affidavit, and provides its form. This set-up of statutory procedure is exclusive and conclusive. It is also salutory, because then the whole evidence to show probable cause is presented in writing, so that the person whose place is to be searched may know and attack the showing, made before the magistrate. The law provides also that the affidavit shall be filed and shall remain on file, the purpose being that the person aggrieved may see it at any reasonable time. The evidence given by witnesses, whoever they may have been, was not reduced to the form of depositions and filed in the ex parte hearing for the search warrant; otherwise it would have been superfluous for the mayor to testify what were the questions and answers given in oral evidence before him in support of the affidavit. Errors creep in when sayings are retold. The *Page 281 mayor is not superior to any other witness. The ex parte proceeding in this case speaks loudly the fallacy of permitting unrecorded hearsay testimony to be heard by the issuing magistrate in support of an affidavit which relies solely on hearsay statements; and, also the wisdom of a practice in ex parte proceedings for a search warrant that requires all evidence to be in documentary form under oath or affirmation.