Francis Hoague, for petitioners. James E. Kennedy, for respondent.
Petition for writ of certiorari to the Supreme Court of Washington.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, commands that 'no warrant shall issue, but upon probable cause, supported by oath or affirmation.' The question presented by this case is whether the Constitution requires that, at or before the time a warrant issues, the judicial officer make a permanent record of the evidentiary basis for its issuance. In this case the entire record of the proceeding on the application for the warrant consisted of the complaint for the warrant, a copy of the warrant and the return on the warrant. The complaint, considered alone, failed to state sufficient probable cause for the warrant and, on that ground, petitioner made a motion to suppress the evidence seized on its authority. The State resisted the motion on the basis of affidavits of the judge who issued the warrant, of the prosecuting attorney who applied for it, and of two police officers, purporting to set forth what had transpired at the hearing on the application. The finding of probable cause was sustained on the basis that the affidavits supplied the evidentiary basis not provided in the complaint. Federal courts have held that this procedure cannot be countenanced under Fed.Rules Crim.Proc. 41(c), United States v. Birrell, 242 F.Supp. 191 (D.C.1965); Rosencranz v. United States, 356 F.2d 310 (1 Cir., 1966); United States v. Walters, 193 F.Supp. 788 (D.C.1961); United States v. Sterling, 369 F.2d 799, 802 n. 2 (3 Cir., 1966). The substantive right created by the requirement of probable cause is hardly accorded full sweep without an effective procedural means of assuring meaningful review of a deter- [393 U.S. 1090 , 1091] mination by the issuing magistrate of the existence of probable cause. Reliance on a record prepared after the fact involves a hazard of impairment of that right. It is for this reason that some States have imposed the requirement of a contemporaneous record. Thus, in Glodowski v. State, 196 Wis. 265, 271, 220 N.W. 227 (1928), the Wisconsin Supreme Court stated that:
It seems to me that there is a substantial constitutional issue presented by the question tendered by petitioner.
I would therefore grant the petition.