Additionally, we have strictly limited the determination of whether probable cause exists to a consideration of only those facts reduced to writing that were actually presented to the issuing judge at the time the application for the warrant was made. State v. Rockhold, 243 N.W.2d 846, 848 (Iowa 1976). Any additional facts adduced later cannot be considered.
United States v. Lefkowitz, 464 F. Supp. 227, 233 (C.D.Cal. 1979) ("provided that the omission produces the same practical effect as does an affirmative statement, i.e., that it leads to a misconception"); see also Cruse v. State, 584 P.2d 1141 (Alaska 1978). While we are limited to considering the facts presented to the issuing judicial officer in determining whether probable cause existed, State v. Rockhold, 243 N.W.2d 846, 848-49 (Iowa 1976), in determining whether misrepresentation was intentional or material the surrounding facts are relevant and may be considered. State v. Post, 286 N.W.2d 195, 201-02 (Iowa 1980).
The appellant correctly notes that when a defendant challenges the existence of probable cause for the issuance of a warrant, the State is limited in its support to the evidence actually presented to the magistrate. State v. Rockhold, 243 N.W.2d 846, 848-49 (Iowa 1976). The question of whether rebuttal evidence is permitted when the defendant challenges the truthfulness of the supporting affidavit has apparently never been addressed by this court.
State v. Lynch, 197 N.W.2d 186, 191-192 (Iowa 1972); State v. Salazar, 174 N.W.2d 453 (Iowa 1970); State v. Spier, 173 N.W.2d 854 (Iowa 1970); see Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509 (1958) ("The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause.").' "See also State v. Wright, Iowa, 244 N.W.2d 319; State v. Rockhold, Iowa, 243 N.W.2d 846; State v. Nelson, Iowa, 234 N.W.2d 368; State v. Drake, Iowa, 224 N.W.2d 476." See also State v. Moehlis, 250 N.W.2d 42, 45 (Iowa 1977); State v. Wright, 244 N.W.2d 319, 320-321 (Iowa 1976); State v. Easter, 241 N.W.2d 885, 886-887 (Iowa 1976); State v. Birkestrand, 239 N.W.2d 353, 356-357 (Iowa 1976); State v. Boyd, 224 N.W.2d 609, 614-616 (Iowa 1974).
" See also State v. Wright, Iowa, 244 N.W.2d 319; State v. Rockhold, Iowa, 243 N.W.2d 846; State v. Nelson, Iowa, 234 N.W.2d 368; State v. Drake, Iowa, 224 N.W.2d 476. As found by Judge Critelli the record clearly shows finding of probable cause for issuance of the search warrant was based on the sworn testimony of Officer Leitzke that he conducted and witnessed a drug purchase at defendant's home a few hours before his appearance before Magistrate Kubby. See State v. Liesche, Iowa, 228 N.W.2d 44. Defendant-appellant's argument it was based on reference to an unvouched for informant is unsupported by the record.
Our supreme court has held that while the timeliness of information is important in a probable cause determination “time is not alone determinative[,] it is one of several factors to be considered in ascertaining the existence or nonexistence of probable cause for issuance of a search warrant.” State v. Rockhold, 243 N.W.2d 846, 850 (Iowa 1976). A staleness issue is resolved by consideration of all factors present in a particular situation.
We elect to bypass this error preservation claim and proceed to the merits. See State v. Rockhold, 243 N.W.2d 846, 859 (Iowa 1976). The type of evidence sought by police was the type of evidence that would likely have remained in Aukes's home.
Clearly, under the principles laid down in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969), a warrant could not be based upon that kind of information, which essentially may be regarded as gossip. See United States v. Karathanos, 531 F.2d 26 (2d Cir.), cert. den. 428 U.S. 910 (1976); State v. Rockhold, 243 N.W.2d 846 (Iowa, 1976). The trial court, in ruling on appellant's suppression motion, concluded that, because the assertions in those two paragraphs failed to pass muster under the Aguilar and Spinelli standard, they could be given no weight at all by Judge Yates — that they had to be utterly disregarded.
Prior cases have held evidence inadmissible when obtained through a fourth amendment violation although the culpability for the violation was in the actions of the magistrate rather than the police. E.g., Giordenello v. United States, 357 U.S. 480, 485-88, 78 S.Ct. 1245, 1249-51, 2 L.Ed.2d 1503, 1509-11 (1958); State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976); State v. Rockhold, 243 N.W.2d 846, 849-50 (Iowa 1976); State v. Boer, 224 N.W.2d 217, 219-21 (Iowa 1974). Just as the magistrate may not become a "rubber stamp" for the police in issuing warrants, State v. Sheridan, 247 N.W.2d 232, 233 (Iowa 1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2631, 53 L.Ed.2d 244 (1977), it would seem to be equally impermissible for magistrates to allow police to search and seize without a warrant when one was required and when there was no showing of impracticability in its issuance.