(concurring specially).
I agree with the majority that the affidavit in support of the search warrant was sufficient to meet the requirement of probable cause. In my opinion, however, the language embodied in the search warrant to “seize any and all substances controlled by SDCL 39-17” verges upon the classification of an “open-ended” search warrant, which normally would not pass constitutional muster. Lo-Ji Sales, Inc. v. New York, - U.S. -, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). The majority opinion, however, cites numerous authorities to the effect that property, which by reason of its character is inherently illicit or *418contraband, is excepted from the general standards that search warrants must particularly describe the property to be seized. In those instances, the test of requisite particularity suggested by the majority opinion is whether the warrant places a meaningful restriction on the objects to be seized. The majority concludes that since controlled substances pursuant to SDCL 39-17 — 46 are confined to four schedules that expressly list such chemical substances, the officers executing the warrant were not left to exercise discretion with regard to what was to be seized; their search was limited, according to the majority, only to those substances listed on the four schedules.
It must be pointed out, however, that the search warrant did not allude specifically to section SDCL 39-17-46 which defines “controlled” substances. May I point out that certain substances set forth in Schedule III (see SDCL 39-17-63) are, in certain forms, exempted by SDCL 39-17-64. Furthermore, the entire statutory scheme of chapter SDCL 39-17 is fraught with exceptions and uncertainty including the provision of SDCL 39-17-69, which provides for the addition, deletion, or rescheduling of scheduled substances.1
At the time this search warrant was issued, embodied in SDCL 39-17-462 was a safeguard: that controlled drugs or substances as defined did not include “drugs, substances, or immediate precursors which have been deleted by the department” nor did it include “patent or proprietary medicines within the meaning of § 36-11-51 and amendments thereto.” As such, reliance upon this definition only allowed officers to seize contraband, which in turn, permitted a lesser standard of particularity of description in said search warrant.
Although I concur in the result of the opinion, I would suggest that search warrants expressly state that the property to be seized is that which is defined as a controlled substance and contrary to law, not merely as “controlled” by ch. SDCL 39-17. Realizing that the four schedules list over one hundred and forty substances constituting controlled substances, it would be highly preferable that the search warrant also contain a description of the type of contraband to be seized, although such a listing would not be inclusive. To permit an officer to seize any substance which is “finitely” listed on the four schedules, in effect presents the officer with the problem of making a determination of the chemical analysis of controlled substances by occular perception. Considering the complexity, exceptions and technical delineations in ch. SDCL 39-17, pinpointing the scope of the search may prevent the seizing of a given drug, legal if subject to a valid prescription, critical to the health of the owner. See Presiding Judge Biegelmeier’s concurring opinion in State v. Nelson, 84 S.D. 218, 226, 169 N.W.2d 533, 537 (1969). Allowing in this case a code pleading of “any and all substances controlled by ch. SDCL 39-17” not only could permit the seizure of necessary and legal drug items for which probable cause to search had never been shown, but could also prevent its timely return.
Considering the language of the new statute defining controlled drug or substance, which was not in effect at the inception of this case, the pleader of a search warrant should be most careful in setting forth that the items to be seized are a controlled drug or substance and contrary to law to fit within the exception, lest the search warrant be an “open-ended” one, which would not pass constitutional muster.
. Control is also defined in SDCL 39-17-44(4) as a “means to add, remove, or change the placement of a drug, substance or immediate precursor under §§ 39-17-69 to 39-17-71, inclusive.”
. This section of the code has not been transferred to 34-20B. Controlled drug or substance is defined in SDCL 34-20B-3: “For the purposes of this chapter, unless the context otherwise requires, ‘controlled drug or substance’ means a drug, substance, or immediate precursor in Schedules I through IV of §§ 34-20B-11 to 34-20B-26, inclusive.”