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possessed, in violation of the laws of this

state, such justice of the peace . . . or judge

shall issue his warrant to any officer having

power to serve criminal processes, and cause the

premises designated in such affidavit to be

searched. . . .46

That statutory procedure was employed in 1925, when a

search warrant application was submitted to a justice of

the peace in Henry County, Indiana.  The application con-

sisted of a single affidavit, which stated that "the

undersigned affiant . . . has reason to believe and does

believe that James Wallace has in his possession intoxi-

cating liquor . . . in violation of the laws of this

state."47   On that information alone, a warrant was issued,

and then served at Wallace's residence.  Wallace was pros-

ecuted and convicted of violating the liquor laws of

Indiana on the basis of incriminating evidence discovered

at his home.  But he appealed his case to the state

supreme court, arguing that the search of his home had

been unconstitutional.

The Supreme Court of Indiana agreed with Wallace's

argument, finding the affidavit procedures prescribed by

the state legislature to violate the state constitution.

Here is how the court explained its ruling:

If it was intended by this statute to declare

that an allegation in the affidavit, such as

therein prescribed, shall be sufficient to show

probable cause, and that an affidavit embodying

such allegation alone is proof sufficient to war-

rant the magistrate to determine the question of

probable cause, then in our opinion the

Legislature, in that respect, exceeded its power.

. . . The averment in the affidavit amounts

solely to the possibility, not the probability,

that affiant's belief will prove to be a fact,

rather than a belief, upon the execution of the

warrant, and not before.  The affidavit, if

untrue, would not subject affiant to prosecution

for perjury, unless it can be proved that affi-

ant, at the time he made the affidavit, knew

that there was no intoxicating liquor at the

place described.48

As that passage suggests, the whole purpose of the oath

requirement is to help deter false or frivolous charges by

making a sworn complaint against one's neighbor a matter

of some risk.49   Filing a complaint is supposed to be an

act of some moment--for once the complaint is filed with