concurring specially-
Being influenced by the logic and reasoning of the Chief Justice’s opinion, and because there is no other choice, I agree that the film that was seized must be returned to the Spoke Committee and not considered further in this case. The Fourth Amendment makes no distinction between criminal and civil proceedings in prohibiting unreasonable searches and seizures and in requiring that warrants be issued only upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. As of this time I am willing to concede that we must require the film returned in order to maintain judicial integrity. I am disappointed that, without any alternatives, it becomes necessary to exclude truth from judicial searches for truth. Insufficient demands for alternatives have held back efforts to find alternatives. See, Kamisar, A Reply to Critics of the Exclusionary Rule, Judicature, Vol. 62/No. 2, at 66 (August 1978).
The majority opinion necessarily reverses the decision and I am compelled to say that it does not prevent a new proceeding to determine whether “Deep Throat” is obscene under North Dakota standards. I would have preferred that a new trial be specifically awarded. I know of no reason why a test of the movie’s obscenity cannot proceed without the evidence seized. The doctrine of double jeopardy would not prevent it. Even though the search and seizure under § 12.1-27.1-06(4), NDCC, fails to meet the standard of the Fourth Amendment, the obscenity control statute applies to a “performance” which is not subject to seizure, as well as to “material” which may be seized, therefore an obscenity determination can be made without any search or. seizure.