dissenting.
I join my brother Justice Prentice’s dissent in this case. What is constitutionally permissible is not at issue here. Smith v. Maryland, (1979) 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. We should not interpret Indiana’s search warrant statute, Ind.Code § 35-1-6-1 et seq. (Burns 1979 Repl.), as broad enough to encompass any constitutionally permissible device with which a prosecutor hopes to obtain evidence of criminal activity.
The majority relies on United States v. New York Telephone Co., (1977) 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376, as authority for its broad interpretation of Indiana’s statute. In that case, the Supreme Court held that Fed.R.Crim.P. 41 was broad enough to empower a federal court to issue an order similar to the Superior Court’s order in the case at bar. I do not view the decision in United States v. New York Telephone Co. as a mandate for state courts to fall in line with broad interpretations of their own search warrant rules or statutes.
Even if I were to agree that our statute admits of the majority’s interpretation, I would be compelled to echo the sentiments of Justice Stevens in decrying the judicial activism represented by the majority opinion:
“To reach its result in this case, the Court has had to overlook the Rule’s specific language, its specific safeguards, and its legislative background. This is an extraordinary judicial effort in such a sensitive area, and I can only regard it as most unwise. It may be that a pen register is less intrusive than other forms of electronic surveillance. . . . But the Court should not try to leap from that assumption to the conclusion that the District Court’s order here is covered by Rule 41.” United States v. New York Telephone Co., supra, 434 U.S. at 185-6, 98 S.Ct. at 379, 54 L.Ed.2d at 398 [Justice Stevens, dissenting].
As Justice Prentice points out, from the plain language of our search warrant statute it is evident that the legislature did not intend to authorize the sort of order issued by the Marion Superior Court here. Under Smith v. Maryland, supra, authorization of this type would be permissible. However, the General Assembly has not so provided. I find Justice Stevens’ characterization of the majority opinion in United States v. New York Telephone Co., supra, is most apt here:
“The Court’s decision may be motivated by a belief that Congress would, if the question were presented to it, authorize both the pen register order and the order directed to the Telephone Company. But the history and consistent interpretation of the federal court’s power to issue search warrants conclusively show that, in these areas, the Court’s rush to achieve a logical result must await congressional deliberation. From the beginning of our Nation’s history, we have sought to prevent the accretion of arbitrary police powers in the federal courts; that accretion is no less dangerous and unprecedented because the first step appears to be only minimally intrusive.” 434 U.S. at 179, 98 S.Ct. at 376, 54 L.Ed.2d at 394 [footnote omitted].
We should be no less concerned with the accretion of police powers in Indiana courts.
Additionally, the probable cause affidavit in the case at bar does not comport with statutory requirements. The majority’s opinion legislates out the requirement that *968a probable cause affidavit allege “that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed . . . Ind. Code § 35-1-6-2 (Burns 1979 Repl.) [emphasis added]. I cannot imagine how one could allege, under oath, that phone numbers to be called in the future are concealed anywhere. The probable cause affidavit in this case contains no such allegation and, therefore, the order in this case is improper.
I, too, would reverse the judgment of the trial court and vacate the order authorizing the attachment of the pen register and directing appellant to assist the state in this regard.
PRENTICE, J., concurs.