concurring:
I concur and add a few words. A municipal judge is a magistrate (§ 23-21-4) who may issue a search warrant (§ 23-15-1) based on an affidavit (§23-15-2) or complaint under oath (§ 23-15-8) showing probable cause therefor. Section 23-15-9 then provides if the magistrate is satisfied of the existence of the grounds of the application or there is probable cause to believe their existence, he must issue the warrant to search for "the property specified".
More than the statutory reference made in the search warrant here involved was necessary and is correctly determined in the opinion under the statutes and constitution of South Dakota mentioned therein. This result is also borne out by § 23-15-23 which requires that if the property "taken is not the same as that described in the warrant * * * the magistrate must cause it to be restored to the person from whom it was taken." The above citations are from SDCL 1967 but have been in our statutes for many years and are conclusive of this appeal.
Decisions of the United States Supreme- Court are of like effect as Chimel v. California cited by Judge Rentto indicates. There the Court quotes from Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, where the Court said the rule rests on the desirability of having "magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed" thereon and McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, 155, that the Fourth Amendment interposes a magistrate between the citizen and the police so that "an objective mind might weigh the need to invade that privacy in order to enforce the law." This is a duty placed on the magistrate. Our state constitution and statutes and the cited decisions of the United States Supreme Court require this Court strike down the search warrant for failure to comply therewith.