The magistrate issued the search warrant, on the basis of an affidavit of federal Drug Enforcement Administration Agent Oscar Licon. The affidavit set out the following facts:

'On 8-30-73, at approx. 12:00 Noon, a confidential informant of Det. F. Maya stated to me that there was an ounce of heroin located at 7143 Alameda, Space #11, El Paso, Texas in the bathroom. The informant further stated that it belongs to Alfonso Acosta, a Mexican male, approx. 47 years of age, who resides at this trailer. The informant further stated that Acosta was in the act of cutting, diluting the heroin into small packets called papers for resale this same day. The informant stated that Acosta has done the same procedure in the trailer on at least 32 occasions after he has purchased large quantities of heroin. The informant has on another occasion assisted Federal Agents in initiating cases. The informant states positively that on August 30, 1973 at approximately 10:00 p.m. she observed the said heroin in the bathroom of said premises described above and that she knows it is heroin and that it is still present in said premises.'

The last sentence of this recital was added at the magistrate's suggestion, for as the affidavit was originally presented to him the magistrate believed 'it was not adequate to justify the issuance of a search warrant,' for 'there was nothing in the affidavit indicating the prior reliability of the informant.' In addition to seeking to bolster the affidavit by the detailing of the informant's personal observations, the magistrate questioned Agent Licon and learned the name of the informant. By chance, this informant had been the source of information which had been the basis for a previous warrant issued by the magistrate, and based on his own knowledge and his past experience with the informant, Magistrate Boyd issued the warrant under consideration today.

At the suppression hearing, Magistrate Boyd testified that

'. . . once I learned the name of the informant I immediately reviewed all of these details about the informant's past reliability and on that basis, in addition to the information which Agent Locon said he would swear to under oath about the informant having said she had seen heroin there that day and knew it to be there, at that point I agreed to issue the search warrant. At that point I became convinced that this was a reliable informant and the search warrant should issue.'

The magistrate did not feel it necessary to transcribe a recitation of his own information concerning the informant's reliability because it 'involved my own knowledge and subjective state of mind.' This procedure does not meet the required standards.

The affidavit on its face fails adequately to set out facts sufficient to enable an impartial magistrate to conclude that probable cause existed to permit issuance of a search warrant. The standards to be used in evaluating the facts set forth in the affidavit are well understood and certain. As this Court has recently stated:

'This test is typically referred to as 'Aguilar's two-pronged test.' Spinelli v. United States, 1969, 393 U.S. 410, 413, 89 S. Ct. 584, 587, 21 L. Ed. 2d 637, 642. See United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891; Gonzales v. Beto, 5 Cir. 1970, 425 F.2d 963; United States v. Marihart, 8 Cir. 1972, 472 F.2d 809, 811; Note, the Supreme Court-- 1970 Term, 85 Harv.L.Rev. 40, 55 (1971). The first 'prong' requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person. The second requires specific facts or circumstances tending to demonstrate that the informant, in the instance in question, had gathered his information in a reliable manner.' United States v. Chavez, 482 F.2d 1268, 1270 (5th Cir. 1973).

While the second 'prong' of the test is satisfied by the detailing of the personal observations of the informant, thereby guaranteeing that the informant is relying on 'something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation,' Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969), the first 'prong' of the test is left unsatisfied. There is nothing in the affidavit which proves that the informant is reliable. The affiant himself had no personal knowledge as to the reliability of the informant; the fact that the informant had 'on other occasions assisted Federal Agents in initiating cases' says nothing about whether the cases thus initiated were successfully prosecuted, whether they were based on information supplied by the informant, or if so, whether the information proved to be accurate. Finally, despite the fact that the affidavit identifies the informant as being 'a confidential informant of Det. F. Maya,' there is no indication that Det. Maya regarded the informant as reliable, or whether he had past experience tending to show reliability.

In United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 the Supreme Court held that where an affidavit supporting a search warrant fails to establish the reliability of the informant, certain corroborative details might be substituted for a statement on reliability. In Harris four factors were held together to adequately establish reliability.

Unlike Harris, the affiant here could make no statement concerning the trustworthiness of the informant, nor could he make a statement concerning the bad reputation of the defendant. Further, unlike the statement of the informant in Harris that he had conducted illicit transactions with the defendant, thus constituting declarations against penal interest, nothing in the affidavit here suggests that the informant made any statement against her penal interest. While the fact that the informant said she was speaking from firsthand observation, like the informant in Harris, lends support to the statements in the affidavit, we do not believe Harris stands for the proposition that a statement of firsthand observation alone is a substitute for reliability in evaluating the worth of an informant's statements. In Harris this factor was combined with three others, the cumulative effect of which was to offset the failure of the officer to establish the credibility and reliability of the informant. That cumulative effect is lacking here.

We further find that the magistrate's personal information cannot be used to save a defective affidavit. Rule 41(c) of the Federal Rules of Criminal Procedure states specifically:

'A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant . . .. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant 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 affidavit.'

This rule seems clearly to require that any evidence relied upon by the magistrate be recorded and made a part of the affidavit. While there was some divergence in views between the Circuits prior to the October 1972 amendment to Rule 41(c) as to whether this requirement of recording oral testimony supplementing an affidavit was required to salvage an otherwise invalid affidavit, this Court has now concluded that such recording of supplementary testimony was not required. See United States v. Hill, 5 Cir., 1974, 500 F.2d 315 (No. 73-1098) where this Court, construing the unamended Rule 41(c) which did not prescribe the manner in which oral testimony was to be taken or used by a magistrate in issuing a warrant, held in accord with Eighth and Tenth Circuit decisions that such non-transcribed, oral supplementation to an otherwise invalid affidavit, was proper under the Fourth Amendment and Rule 41(c). See also United States v. Beasley, 485 F.2d 60 (10th Cir. 1973); United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) (en banc) petition for cert. filed, 42 L.W. 3611 (Apr. 8, 1974); Leeper v. United States, 446 F.2d 281 (10th Cir. 1971), cert. denied, 404 U.S. 1021, 92 S. Ct. 695, 30 L. Ed. 2d 671 (1971); United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970); Lopez v. United States, 370 F.2d 8 (5th Cir. 1966).1

We are, of course, bound by the decision in the Hill case, which deals with search warrants issued before the amendment. There is no conflict between our decision today and the Hill decision, for in Hill this Court specifically stated: 'We of course note that under the amended rule such interrogation and the affiant's responses must be recorded and made a part of the affidavit.' United States v. Hill, supra, 500 F.2d at 322, n. 3. Under the amended rule as quoted above there can be no doubt that any oral additions to the affidavit must be recorded and made a part of the affidavit.

Beyond the literal language of Rule 41(c), it has been held that the requirement of the Fourth Amendment that information relied upon to establish probable cause be 'supported by oath or affirmation' requires that any information relied upon by a magistrate be taken under oath and that this must be shown in the record. Tabasko v. Barton, 6 Cir. 1972, 472 F.2d 871. While we intimate no view on this question as it applies to state courts, we believe the weight of authority clearly is that any information relied upon by a federal magistrate in determining whether probable cause exists must be made a part of the affidavit or affidavits supporting the warrant. While the precise problem presented in this case has not previously occurred, where it is the magistrate himself who supplies the additional information necessary to constitute probable cause, we do not believe Rule 41(c) provides an exception for this situation.

While one rationale for this requirement that all evidence be part of the affidavit is to ensure that the magistrate has all the information necessary to arrive at a decision, another important rationale is to guarantee that the record is preserved for later review in such a way that new information, either newly discovered or remembered, cannot be used to validate a warrant after it has been issued. The requirement that all facts relied upon by the magistrate be in a written affidavit insures that 'the reviewing court may determine whether the constitutional requirements have been met without reliance upon faded and often confused memories.' United States v. Anderson, supra, 453 F.2d at 177. This important requirement has not been satisfied in this case and accordingly we must find that the affidavit supporting the search warrant was inadequate and the evidence seized under that warrant must be suppressed.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.2

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, ALNSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clark shall set a briefing schedule for the filing of supplemental briefs.

The result reached by the majority seems to me very grievous. Under it a rather high-level heroin dealer-- not a mere street pusher-- goes free, unpunished and as a practical matter likely unpunishable, for acts in which he was caught red-handed in the course of a search authorized by a conscientiously-issued warrant. He does so, although the magistrate was furnished sufficient facts for an affidavit amply supporting the issuance of the warrant, solely because under the pressure of events all of these facts were not reduced to affidavit form as required by Rule 41(c).1 The warrant being infirm, the majority brings the exclusionary rule into play to invalidate Acosta's conviction and sentence. If this be the law's demand it must, of course, be honored. Since I do not think it is, I respectfully dissent.

1. The Deficiencies of the Affidavit.

Aguilar2 requires a policeman's affidavit to set forth

. . . some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable.' 378 U.S., at 114, 84 S.Ct., at 1514.

Beyond peradventure the affidavit in this case fulfils the first of these requirements, and, to my mind, it complies on its face with one of the disjunctive requirements of the second: showing a basis for the policeman's conclusion that the informant's '. . . information (was) reliable.' It is admittedly somewhat weak on the informant's intrinsic credibility, though it does not seem to me a very strained construction of the reference to her as being Detective Maya's confidential informant as indicating he placed some credence in her, or of the description of her as having helped Federal Agents in initiating cases as forming a sufficient basis for the inference that the cases were not disasters-- as indeed, in fact, they were not. I do not place much weight upon the presence or absence in the affidavit of such magic words as 'reliable' or 'accurate,' which cost little to add and mean little more. Transmitting such signals as these, we may expect affidavits which smell of the lamp and smack of common-law pleading.

At any rate, under Aguilar it is not necessary that the informant be shown to be credible; the alternative and sufficient course of showing circumstances justifying a conclusion that his information in this instance is reliable is available. Even paranoids sometimes have enemies, and liars sometimes tell the truth.

Here there are at least strong hints of the informer's reliability. In addition, the affidavit is specific and detailed, telling just about all there was to tell about Acosta and his activities as then relevant to his traffic in misery.3 'A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.' Spinelli v. United States, 393 U.S. 410, 417, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969). Had such an inference been made, it seems the affidavit in this case would clearly have supported it.

The trouble is our magistrate did not make this requisite inference, or rather declined to make it solely from the proper matter furnished him. Not content with the affidavit, even as supplemented at his suggestion, he went on to require matter beyond it-- the informant's name-- and only then, when he recognized her as the source of earlier information personally known to him to have been reliable, was he satisfied that a warrant should issue.4

A magistrate's '. . . determination of probable cause should be paid great deference by reviewing courts.' Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 591, 21 L. Ed. 2d 637 (1969); see Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). By a parity of reasoning, his refusal to do so until satisfied by consideration of material technically improper, as here, has weight. I am therefore unable to say with any assurance, in view of his testimony quoted at note four above, that he would have issued the warrant without the consideration of improper matter. Its basis was therefore infirm, both constitutionally as based in part on unsworn matter5 and procedurally, as relying on matter not reduced to affidavit form. Fed.R.Crim.P. 41(c). Thus though I think the majority wrong in holding, as I believe it does, that this affidavit is an insufficient basis for a magistrate's inference of probable cause, I agree that the magistrate's action in issuing the warrant was technically erroneous. Unlike the majority, however, I do not think this concludes the matter.

2. The Inapplicability of the Exclusionary Rule.

It is now clear both that the exclusionary rule represents, not a constitutional right, but a judge-made remedy to secure one6 and that its prime function is to deter future overzealous police conduct by removing the incentive to it.7 Moreover, '. . . the deterrent purpose of the exclusionary rule necesarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right.' Michigan v. Tucker, 417 U.S., at 447, 94 S.Ct., at 2365, 41 L. Ed. 2d, at 194.

I search this record in vain for such conduct. Informed that Acosta was at that moment preparing his dreary elixirs for sale, the detective hopefully entered his essay in the cosmic contest. The magistrate, unsatisfied but plainly disturbed, questioned him further and satisfied himself in a good faith which shines in the record that probable cause existed to believe him and his informant. 'This situation furnishes no occasion to apply the exclusionary rule to bar the evidence of . . . criminality that was obtained in executing the warrant. (The detective) acted properly in going to the magistrate and seeking a warrant. (The magistrate) acted properly in calling for additional information to demonstrate credibility. Thus, the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.' United States v. Hill, 500 F.2d 315, at 322 (5th Cir. 1974) (No. 73-1098).

Correctly noting that Rule 41(c) has been amended to require matter supplementing an affidavit to be made part of it since presentation of the affidavit in Hill, the majority opinion seeks to dispose of that holding as a precedent on that basis. I do not think it will go away so easily. It is true that the Rule's amendment is one basis of the Hill decision. It is also true, however, that the language quoted above appears immediately following the court's conclusion '. . . that the warrant was duly authorized' and constitutes an alternate ground of the decision: that even had the warrant not been duly authorized, '. . . this situation furnishe(d) no occasion to apply the exclusionary rule . . . (since) . . . the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.' Ibid.

I would uphold the district court's implied finding that this police conduct was neither wilful nor negligent and furnished no proper occasion for application of the exclusionary rule. Nor would I expand the rule to 'deter' magistrates from failing to record matter upon which they rely, conceiving that they will obey the mandates of reviewing magistrates, such as we, when these are understood. At the least, I would remand to the district court for a fact finding whether the conduct of the police in this case was either wilful or negligent, and be guided accordingly. As here it was plainly at worst inartful, I would affirm.

3. The Sentencing Procedure.

So concluding, I would reach the question of the sentencing procedure employed by the court. Two sentencing hearings were held. At the first of these, the court gave Acosta to understand that if he would cooperate with the authorities by revealing his drug sources this would redound to his credit, recessing to permit him to do so.8 At the second hearing the Court, noting that the 'Probation Officer doesn't think you have shown any desire to cooperate,' passed a heavy, though not a maximum, sentence.

While I can only sympathize with the court's efforts to reach the drug hierarchy through Acosta, the record suggests the possibility that the court may actually have taken Acosta's refusal to cooperate into account in sentencing. If so, under such authorities as Thomas v. United States, 368 F.2d 941 (5th Cir. 1966) and United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974), the sentence should be vacated and a new sentence imposed without consideration of this refusal. As we said in Rodriguez,

In Thomas v. United States, . . . we held it a clear abuse of discretion for the sentencing judge to threaten the man before him with a more severe sentence if he did not 'come clean' and admit his guilt. As we explained, the defendant retains important Fifth Amendment rights after the jury reaches a verdict, rights which must not be made the price of sentencing leniency. The court cannot place the defendant in the dilemma of either abandoning his Fifth Amendment rights or risking a harsher sentence.

True it is that in both cases the court was urging the convicted defendant to acknowledge only his own guilt, but I am unable to see how Acosta could have implicated others without, at lease tacitly, admitting his own complicity. I would therefore affirm his conviction, but vacate his sentence and remand for resentencing.