(dissenting in part):

I concur in the result reached by the majority, and I do not quarrel with most of the reasoning which produces it. I do, however, sharply disagree with that portion of the majority opinion in which the validity of the search warrant is upheld.

Before the trial was held in the Arizona state court, a hearing was conducted pursuant to Sherrick’s motions to suppress certain evidence which had been seized in the search conducted pursuant to the warrant. During the hearing, the police officer who obtained the search warrant testified as follows:

In the testimony of the magistrate who issued the search warrant, there appears the following:

Neither the police officer nor the magistrate testified, or apparently could testify, as to the nature of any unrecorded information which might have been given to or received by the magistrate and .which might have supplied the requirement of probable cause.

When the question of the validity of this search warrant was presented to the Supreme Court of Arizona, that court conceded that it would be compelled, upon the authority of Aguilar v. State of Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), to hold that the affidavit, of itself alone, was insufficient to support issuance of the warrant. There can be no doubt that this conclusion was correct. 1 The Arizona Supreme Court went on, however, to uphold the validity of the warrant upon the assertion that “[t]he testimony of the police officers and the magistrates indicates that information was given to the magistrate under oath in addition to the affidavit.” State v. Sher-rick, 98 Ariz. 46, 53 , 402 P.2d 1, 6 (1965) (footnote omitted). It is true that there is such an indication, but since the record is devoid of evidence as to the nature of any such additional information given to the magistrate, the Arizona court could not, of course, supply it.

The Supreme Court has held that “[i]n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-224 , 80 S.Ct. 1437, 1447 , 4 L.Ed.2d 1669 (1960). As the Arizona Supreme Court correctly remarked, the affidavit presented to the magistrate was insufficient to support the warrant’s issuance. Aguilar v. State of Texas, supra; Giordenello v. United States, 357 U.S. 480 , 78 S.Ct. 1245 , 2 L.Ed.2d 1503 (1958); Nathanson v. United States, 290 U.S. 41 , 54 S.Ct. 11 , 78 L.Ed. 159 (1933). Our court is faced, therefore, with only a mere conclusion by the magistrate and by the Arizona Supreme Court that the information supplied in oral form to the magistrate was sufficient to provide probable cause to issue the warrant. We cannot consider that “information,” however, for, like everyone else, we do not know what it was. And, of course, we cannot consider information not shown to have been communicated to the magistrate, even though that information was possessed by the police. “It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.” Aguilar v. State of Texas, 378 U.S. 109 n.1, 84 S.Ct. 1511 (emphasis in original).

*655 In Aguilar the Supreme Court emphasized that a magistrate issuing a search warrant must perform a “ ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” 378 U.S. at 111 , 84 S.Ct. at 1512 . Additionally, the Court stated that the reviewing court should uphold the “judicial determination” of probable cause so long as a “substantial basis” for that conclusion is present. 378 U.S. at 111 , 84 S.Ct. at 1512 quoting Jones v. United States, 362 U.S. 257, 271 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960). It seems apparent to me that there could never be proper review as to whether there existed a “substantial basis” for the magistrate’s “judicial determination” unless somewhere, in some manner, the “basis,” whether “substantial” or insubstantial, appears upon the record. Here, as we have seen, it does not so appear. Its absence derives not only from the magistrate’s failure to record the supposed basis, but also from the natural frailty of human recollection, in this case that of both the magistrate and the officer who sought and obtained the warrant. A court is disempowered to apply any proper test as to whether or not a magistrate has properly performed his duty unless his action can be measured, either by the contents of the “oath or affirmation” required by the fourth amendment, or if reliance is placed upon other information claimed to have been furnished to the magistrate, by a solid record of such additional information as was supplied.

Another striking irregularity connected with the search warrant relates to the fact that some of the items for which a search was authorized by the warrant were specifically added to the warrant after entry had been made, presumably under authority of the warrant, and after, the items were then, for the first time, 'discovered. 2 I shall not dwell further upon this strange aspect of the procedure, nor upon others which trouble me, inasmuch as I have already demonstrated, I think, that the warrant was wholly invalid and ineffective.

. The text of the “AFFIDAVIT FOR SEARCH WARRANT” presented to the magistrate reads, in its entirety, as follows:

As discussed infra, the testimony indicates that certain of the items on the list in this affidavit were added to it after the search warrant was granted, just as they were added to the search warrant itself after the search.

. In response to questioning by Sher-rick’s attorney, the police officer who obtained the search warrant and who participated in the actual entry and search testified as follows: