Committee Comments

Section (a) of this rule is based in part on Ala. Code 1975, §§ 15-5-3 and 15-5-4:

” Section 15-5-3. Probable cause and affidavit required.

“A search warrant can only be issued on probable cause, supported by affidavit naming or describing the person and particularly describing the property and the place to be searched.

” Section 15-5-4. Examination of complainant and witnesses; contents of depositions.

“Before issuing a search warrant, a judge, or magistrate authorized by law to issue search warrants, must examine on oath the complainant and any witness he may produce, take their depositions in writing and cause them to be subscribed by the persons making them. Such depositions must set forth facts tending to establish the grounds of the application or probable cause for believing that they exist.”

This rule is similar to Rule 41(c)(1), Fed. R. Crim. P., and is in accord with such cases as Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d. 527 (1983), and Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), as interpreted by the Alabama Court of Criminal Appeals in Houk v. State, 455 So. 2d 115 (Ala. Crim. App. 1984). See also State v. Butler, 461 So. 2d 922 (Ala. Crim. App. 1984); Dale v. State, 466 So. 2d 196 (Ala. Crim. App. 1985).

The last sentence of (a) provides that the additional sworn testimony does not have to be incorporated into the affidavit before the search warrant is executed. Secondly, it provides that the additional sworn testimony can be recorded verbatim not only by a court reporter or by recording equipment but also by “other means.” For example, if only a small amount of additional testimony is required or if no court reporter or recording equipment is available, the additional examination can be typed or written in longhand. Thirdly, it provides that additional examination which is relied upon to support the warrant need be reproduced in later proceedings involving the warrant. If the affidavit and warrant are themselves sufficient, the additional examination need not be used. Fourthly, it provides that the confidentiality of informants is not to be jeopardized by the method of reproducing the additional examination relied upon. For example, the judge or magistrate may decide to examine the confidential informant under oath before issuing the warrant and he may preserve the examination by tape-recording it. If any part of that examination is made available in a subsequent proceeding, it should be made in such a manner that the identity of the informer is not revealed. Because the defendant might recognize the informant’s voice on the recording, a transcript should be used instead.