¶1(dissenting).
¶2I would affirm the trial court. I agree with Justice Zastrow’s view of the evidence which supports the trial court as set forth in his dissent, and I am convinced that the trial court’s order is also proper considering the import of SDCL 23-13A.
¶3While the issue was not thoroughly briefed in either the trial court or this court, and the proposed opinion declines to pass upon the constitutionality of the federal wiretap statutes but nevertheless declares that the federal act controls further proceedings, I do not believe this court should close its eyes to legislative enactments of South Dakota which state the policy to be adhered to regarding interception of telephone conversations in this state. I find it incredible that the attorney general argues U.S.C. § 2515 to be an unconstitutional exercise of power by the federal government in violation of the tenth amendment. Our legislature has, by enactment of chapter 158 of the Session Laws of 1969, which was entitled,
“AN ACT Entitled, An Act authorizing the interception of wire or oral communications by certain public officials in conformity with Chapter 119 of Part I of title 18, United States Code; defining certain terms; establishing procedures governing application for, and granting of, court orders applicable thereto; and, designating and enumerating specific offenses for which such interceptions may be made.”
¶4clearly made 18 U.S.C. §§ 2510 to 2520 applicable in this state.
¶5Section 2 of ch. 158, SL 1969, set forth as SDCL 23-13A-2, states:
“It is the intent of this chapter to conform the requirements of all interceptions of wire and oral communications conducted by investigative or law enforcement officers ⅛ this state to the provisions of chapter 119 of the United States Code.”
¶6A statement is made in the majority opinion that Mr. Bunt will not be allowed to testify “in any further proceedings.” I believe that Mr. Bunt must testify at a suppression hearing if a further hearing is mandated, to determine if the information gleaned from wiretap was illegal and, if so, was it exploited. Once the wiretap is found to be illegal and information from the wiretap was exploited, then Mr. Bunt will not be allowed to testify as to that evidence. SDCL 23-13A-8, 23-13A-l(5), 18 U.S.C. § 2515. This exclusionary rule incorporated into the federal act and accepted as the law of this state by SDCL 23-13A, grew out of the abuses existing during the passage of the earlier federal act. The purpose of the federal act is: (1) to protect privacy of wire and oral communications, and (2) to delineate on a uniform basis circumstances and conditions under which interception of wire and oral communications may be authorized, United States v. Cafero, 1973, 3 Cir., 473 F.2d 489 (footnote 8, 1968), cert. denied 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223; see also 1968 U.S.Code Cong. & Admin.News, at p. 2153; and, perhaps more basic, to limit initiation of wiretap applications to publicly responsible officials, subject to the political process. United States v. Giordano, 1972, 4 Cir., 469 F.2d 522, affirmed 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. See also 1968 U.S.Code Cong. & Admin.News, p. 2185.
¶7From reading the transcript and in agreeing with Justice Zastrow’s assessment, I would conclude that the information from the wiretap was exploited. Such illegal wiretaps should not be considered less harmful when they were initiated by a “concerned citizen.” Under SDCL 23-13A-1(5) and 23-13A-8 a private individual is subject to the Act’s restrictions. As these restrictions were not complied with, and as the information from the illegal wiretap was exploited, I would affirm the trial court’s suppression order.
¶8(dissenting).
¶9Although the factual statement in the majority could justify a reversal of the trial court’s decision, the testimony at the suppression hearing could have been, and apparently was, interpreted quite differently by the trial court. However, there were no findings of fact and conclusions of law entered with the trial court’s order suppressing the evidence seized upon the execution of the search warrant.
¶10The procedure in this situation has been clearly stated in State v. Stumes, 1976, S.D., 241 N.W.2d 587:
“It is abundantly clear, however, that absent the necessary findings of fact and conclusions of law which make up a ‘decision,’ RCP 52(a); Bunnell v. Kindt, 1968, 83 S.D. 377, 159 N.W.2d 923, this court’s review is seriously hampered, if not made impossible, because of the inability of this court to determine the credibility of the witnesses which determination is within the purview of the trial court before whom the witnesses appeared.
“The total lack of findings of fact and conclusions of law in the present case causes us to remand this case for a determination of the factual issue upon the evidence previously adduced.” 241 N.W.2d at 591.
¶11If this case is not to be remanded, the evidence must be viewed in the light most favorable to support the trial court’s decision. State v. Nelson, 1974, S.D., 220 N.W.2d 2; State v. Kiehn, 1972, 86 S.D. 549, 199 N.W.2d 594.
¶12The trial court in its memorandum opinion expressly adopted as “accurate” the statement of facts set forth in the defendant’s memorandum brief. The facts adopted by the trial court indicate that the entire sequence of events which culminated in the discovery of the marijuana was set in motion by the motel manager’s deliberate and wilful interception of the defendant’s telephone communications. A close reading of the transcripts reveals that there were two telephone calls intercepted by Mr. Bunt. One was a local call to Thomas Pierson’s parents, which should have allayed Bunt’s suspicions about the parents’ residence.
¶13The trial court’s “finding” that Bunt had deliberately and intentionally “listened in” on the telephone conversations, although supported by the testimony, was in fact based upon the state’s stipulation that the interception of the calls was deliberate. The stipulation occurred when Bunt repeatedly invoked the “5th Amendment” when questioned about the circumstances under which he “listened in” on the telephone conversations. As noted by the majority, exactly what Bunt did overhear is not entirely clear from the record, due in large part to his refusal to testify about the telephone conversations.
¶14The question regarding the “policy” of the motel to clean the desk drawers was raised at the preliminary and suppression hearings. Bunt’s testimony at the preliminary hearing was that it was the duty of the “cleaning lady” to check the drawers. Following the testimony of the cleaning lady to the contrary, and evidence that the drawers were not routinely checked, Bunt then testified at the suppression hearing that the policy was that the brother was to check the drawers. Another “policy” of the motel was that the rooms of customers staying more than one night would not be cleaned unless there was a specific request by the customer. Here there was a request that the room not be cleaned. Although that request was honored on Sunday, it was not honored on Monday following Bunt’s conversation with Captain Oakes.
¶15Bunt testified that Captain Oakes left “the impression” that Bunt or someone else would have to see an illegal substance before the police could act. Bunt then discussed the matter with his sister and brother-in-law, telling them of his suspicions and the inability of the police to act.
¶16On Monday, Bunt, his sister and his brother waited in the motel office until the defendants left their room. At no time did Bunt follow the normal practice of contacting the room to inquire whether the occupants desired to have the room cleaned. *56Immediately after the defendants departed, Bunt’s sister and brother went to the room with the instruction: “There may be drugs too, look around.” Captain Oakes recalled that Bunt had indicated his instructions had been to “look for some pot.” The sister, who was not the regular cleaning lady, went immediately to the desk drawers. Upon discovering the plastic bags of marijuana, she and her brother went back to the motel office to advise Bunt of the discovery. The brother then returned to the defendants’ room and looked in additional drawers until the scale was found. The majority’s conclusion that the only purpose of the entry into the defendants’ room was to clean is not the only conclusion which could be reached from the testimony. There was no evidence of any actual cleaning of the room, even though the defendants did not return until 6:30 p. m.
¶17Although certainly not controlling, the magistrate, in an affidavit, stated that in issuing the search warrant he had relied upon the information obtained from the intercepted telephone conversations and upon the assertion in the application that the interception had been “inadvertent.”
¶18Viewing the evidence in the light most favorable to the trial court’s decision, it is difficult to find, as does the majority, that there is no evidence that Bunt and his employees were acting as government agents; that the police did not instruct or request Bunt to take such action; that the brother and sister were engaged only in cleaning operations; or that the intentional eavesdropping by Bunt was not exploited by the police officer.
¶19The trial court was in a better position to determine the credibility of the witnesses and to interpret the disputed testimony. State v. Stumes, supra;State v. Starkey, 1976, S.D., 247 N.W.2d 493. For that reason, the case should be remanded to the trial court for proper findings of fact and conclusions of law. If the Stumesprocedure is to be abandoned, the trial court’s decision does not appear to be erroneous and the suppression order should be affirmed.