¶1concurring specially.
¶2I concur in the result.
¶3I am satisfied that the affidavit for the search warrant was inadequate. It said nothing about reliability. A mere statement that the informant had been known to the affiant for years and had “cooperated” says nothing about the reliability of the informant. There are many kinds of cooperation which have nothing to do with accuracy of information.
¶4Under Rule 41(c), N.D.R.Crim.P., the magistrate to whom an affidavit for search warrant is presented may “require the affi-ant or other witnesses to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the proceedings.” It appears from the testimony at the subsequent suppression hearing, before the district judge, that the magistrate made some inquiry of the affiant officer as to reliability of the informant and was told that he had supplied accurate information in the past. This is probably enough to provide probable cause, as the majority opinion says it does.
¶5I must add, however, that there is no indication whatever in the record before us that the proceedings before the magistrate complied with the requirement of Rule 41(e) that the testimony was taken under oath or that it was “taken down by a court reporter or recording equipment and made part of the proceedings.” It is certainly no part of the record before us, and there is no indication that the rule was complied with at the magistrate level. However, the point was not raised on this appeal and I conclude that it was waived by the defendant.
¶6I must also point out that the majority opinion is inconsistent on a very important point. It states, correctly, that “In passing on the validity of the search warrant, we are limited to the information upon which the magistrate issued the warrant. Any information available but not submitted to the magistrate is irrelevant. Aguilar v. Texas, supra.” And, again, the majority opinion is correct in stating, in footnote 1, that “The fact that the package, when opened, contained a controlled substance could not have been relied upon nor do we consider it as constituting justification in retrospect for issuing the search warrant.”
¶7Yet the majority opinion says, inconsistently with the above, that “. . . even *456if the affidavit per se may have been short on reliability, the actual facts as developed by the special investigator before he made his affidavit established the reliability.” And the majority opinion also says: “The reliability feature was further supplied with the actual facts, namely, the arrival of the package addressed to the defendant with a return address, as previously stated by the informant to the special investigator.” The arrival of the package is an innocent event, aside from knowledge of its contents. As pointed out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), facts which are innocent on their surface will not support a finding of probable cause for a search without a showing of facts and circumstances which take away the appearance of innocence. The appearance of innocence was removed only after the package was opened and its contents were analyzed, and these events took place long after the search. In United States v. Alexander, 559 F.2d 1339 (5th Cir. 1977), the officers had information that illicit drugs would be delivered by boats, the names of which were given to them by an informant. It was held that this “did not provide sufficient indicia of reliability to satisfy Aguilar-Spinelli.” 559 F.2d at 1342. The point I make is that the validity of a warrant cannot be determined, in whole or in part, on the basis of events subsequent to the issuance of the warrant. The rule is the same as the rule in warrantless searches, regarding which we held, in State v. Iverson, 219 N.W.2d 191 (N.D.1974):
“A search unlawfully undertaken is not made valid by evidence of crime which it brings to light.” 219 N.W.2d at 194.
¶8And,
“A belief, however well founded, that contraband is concealed within a dwelling house furnishes no justification for a search without a warrant.” 219 N.W.2d at 193.
¶9The arrival of a package, even though anticipated and forecast by the informant, is an innocent event which provides no confirmation of the reliability of the informant unless and until the contents are ascertained. That event, taking place after the issuance of the warrant, cannot be used to bootstrap reliability where there was none before.
¶10I concur, solely on the basis that the inadequate affidavit was sufficiently bolstered by evidence of reliability given to the magistrate by the affiant officer, so as to supply probable cause, the apparent violation of the recording requirement having been waived. I place no weight whatever upon the arrival of the package, an innocent event which cannot supply probable cause without proof of its contents, which became apparent only after the warrant was issued and therefore could not supply probable cause which must exist at the time the warrant is issued.
¶11. The purpose of requiring a record of the testimony at the time the warrant was obtained was to avoid the sort of question we have here as to what basis the magistrate had for issuing the search warrant. Our Rule 41(c) differs from the parallel Federal rule in requiring such a record. The reason for the record is stated in the Commentary to our rule:
“. . . The requirement that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.”