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the police, the machinery of the state can be unleashed on

the accused citizen.  If a person is willing to assume the

risk that attends the making of a sworn statement, and a

judge finds the accuser's story coherent and credible

enough to establish probable cause, an arrest or search

warrant will issue.50   That was the procedure of the common

law, and that was the procedure that the Founders

constitutionalized.  Note, however, that if the legislative

body could change the rules in such a way as to make the

initiation of the state's legal process "cost free" by

lowering the threshold with a mere generalized belief

standard, it would undermine the Fourth Amendment's "Oath

or affirmation" safeguard by making perjury prosecutions

totally impracticable.51   Fortunately, the courts have rec-

ognized that danger and have invalidated affidavit stan-

dards that allow warrants to issue on flimsy or unsubstan-

tiated claims.52   Persons filing sworn complaints must sup-

ply a statement of supporting facts from which the accuser

concluded that a law was violated.53

Such threats to the oath requirement are tantamount

to a transfer of power from the judicial to the executive

branch.  When judges must issue warrants upon the mere

belief of police officers, they are reduced to rubber

stamps.  By inviting such flimsy or unsubstantiated search

warrant applications to be submitted, and then compelling

the issuance of the warrant, legislators have tried to

make judicial officers subservient to the police.  Such a

naked transfer of power was also found by the Supreme

Court of Indiana to violate the search and seizure provi-

sion of the Indiana Constitution:

The judicial officer before whom an application

for a search warrant is filed must exercise his

judicial power to determine whether or not a

warrant shall issue; such judicial function can

be moved only by the facts brought before him,

which are under oath or affirmation.  A warrant

to search and seize, which follows upon a state-

ment based solely upon the belief of the affi-

ant, based upon the secret facts of which he may

have knowledge, and the conclusion which results

from such reasoning is affiant's, not that of

the judicial officer.  The judicial process to

ascertain probable cause is then transferred from

the judicial officer to the affiant.  The

Constitution permits no such thing.54

Although the phrase "separation of powers" did not appear

in its ruling, the Supreme Court of Indiana did allude to

that concept when it analogized the warrant process to a