¶1 dissenting. The majority opinion reverses the trial court and finds that the affidavit offered in support of the search warrant is sufficient because the affidavit was made in good faith, and by inferring additional facts, the affidavit, as a whole, indicates the reliability of the hearsay information.
¶2 The United States Supreme Court in Whiteley v. Warden, (1971), 401 U.S. 560 [58 O.O.2d 434], held that the sufficiency of a warrant must be reviewed according to the information actually provided by the affiant to the magistrate. Additional information available to the affiant, but not disclosed to the magistrate, cannot later be utilized to bolster an insufficient affidavit. See Whiteley v. Warden, supra, fn. 8, at 565, where the court states:
“… Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U.S. 108, 109 fn. 1. A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.”
¶3 This line of reasoning was adopted by the Ohio Supreme Court in State v. Graddy (1978), 55 Ohio St. 2d 132 [9 O.O.3d 109]. In determining what information could be considered upon review of the trial court’s finding that an affidavit is insufficient to support the issuance of a search warrant, the court stated in footnote 1, at 134, as follows:
“A corollary of this requirement is that, upon appellate review, only information brought to the attention of the magistrate may be considered. Aguilar v. Texas (1964), 378 U.S. 108, fn. 1; State v. Joseph (1971), 25 Ohio St. 2d 95 [54 O.O.2d 228]. Thus, the facts, adduced at the suppression hearing without objection, but not included in the affidavit, and relied upon by the state in this appeal, … may not be considered.”
¶4 There is nothing in the record that indicates any evidence was taken pursuant to Crim. R. 41(C), which provides, in part:
“Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine under oath the affiant and any witness he may produce. Such testimony shall be admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed and made a part of the affidavit.
¶5 Therefore, the sufficiency of the affidavit must be determined by reviewing only the information actually conveyed to the magistrate. A holding to the contrary violates the constitutional mandates of the Fourth Amendment that “no warrants shall issue but upon probable cause” which requires the interposing of a neutral magistrate between the officer and a citizen’s right to privacy. See Johnson v. United States (1948), 333 U.S. 10. The Constitution requires that the inferences from facts which establish probable cause to search must be drawn “by a neutral and detached magistrate” and not by police officers “engaged in the often competitive enterprise of ferreting out crime,” Giordenello v. United States (1958), 357 U.S. 480, at 486; Johnson v. United States, supra, at 14.
¶6 A review of the affidavit indicates that the information relied on by the af-fiant was not attributed to any source. Probable cause to search was not illustrated on the face of the affidavit. Since the affidavit is deficient, it was too late in the common pleas court to supplement it by matters not of record before the issuing magistrate. State v. Graddy, supra; Crim. R. 41(C). For these reasons the determination of the trial court should be affirmed.
¶7 The majority opinion includes “facts” beyond the affidavit and outside the record of the case, -to show that the reliability of the information was *332 established. In light of this, the majority holds that the omission of the identity of the source was unintentional and not in bad faith. Such a finding is contrary to the holding in Aguilar v. Texas (1963), 378 U.S. 108, and its progenies. See, also, Whiteley v. Warden, supra, and State v. Graddy, supra. The good faith of the affiant, while commendable, is inapplicable to this case and should not be considered.
¶8 The majority cites United States v. Ventresca (1965), 380 U.S. 102, to support the proposition that reviewing courts should restrain from requiring technical compliance with the intricacies of the English language. However, the full impact of this opinion is appreciated by continuing the quote offered by the majority opinion, which is as follows:
“This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the af-fiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” United States v. Ventresca, supra, at 108-109.
¶9 The argument presented in United States v. Ventresca, supra, supports the proposition that underlying circumstances must be presented to the neutral magistrate. The case sub judice is not one involving a technical omission in draftsmanship. This is a case where the underlying circumstances for the determination of the reliability and credibility of the hearsay information are not shown. The affidavit, considered in its entirety, does not establish sufficient facts for a neutral detached magistrate to find that probable cause exists to issue a search warrant. Assignment of error No. 1, in my opinion, is not well taken.
¶10 I find as to assignment of error No. 2 that the state comes with too little and too late. There is no record of a hearing on the motion to suppress. The state in the lower court filed no brief opposing defendant’s motion to suppress based on the defective affidavit. How, when and where the issue of probable cause to search was presented at the motion to suppress is not clear. I assume the state means by its' assignment that it was denied the right to “present” evidence on this issue. There is no record of a “proffer” by the state showing that there is evidence to support independent probable cause and exigent circumstances.
¶11 From what can be gleaned from the limited record, the automobile was impounded apparently on the 29th of August or the early hours of the 30th. An affidavit was prepared and on the 30th day of August at 2:25 p.m. the magistrate issued the search warrant. The search followed. I find none of the non-war rant exceptions set forth in Coolidge v. New Hampshire (1971), 403 U.S. 443, present. See Coolidge v. New Hampshire, supra, at pages 454-455, as follows:
“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’ ”
¶12 The language of Coolidge, at p. 462, is appropriate to the case sub judice:
“In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a, warrant,’ Carroll, supra, at 153, and the ‘automobile exception’ despite its label, is simply irrelevant.”
¶13*333 The majority cites Texas v. White (1975), 423 U.S. 67, and Chambers v. Maroney (1970), 399 U.S. 42, to support their conclusion that a warrantless search is permitted. Both of these cases involve the stopping of occupied automobiles (exigent circumstances) with probable cause to search at the time of the seizure. They also involved searches which timely followed. The searches were not stale, but made within a reasonable time after probable cause to seize and search the automobiles arose. The existence of probable cause, exigent circumstances, plus timely searches, present in Texas v. White and Chambers v. Maroney, supra, are not present in the case sub judice.
¶14 The majority reverses the trial court and denies the motion to suppress based on its finding that the affidavit as transfused was viable. The finding as to assignment of error No. 2 except as this court complies with App. R. 12(A) is of little consequence in the case sub judice but based on procedural, substantive grounds and possible precedent, I find assignment of error No. 2 not well taken. I would affirm the trial court.