The opinion
CORNELIUS, Judge,
dissenting.
“The magistrate shall prepare an original and two exact copies of the search warrant, one of which shall be kept by him as a part of his official records, ...” Rule 41(c), Tenn.R.Crim.P.
“Failure of the magistrate to make said original and two copies or failure to endorse thereon the date and time of issuance and the name of the officer to whom issued, ... shall make any search conducted under said warrant an illegal search and any seizure thereunder an illegal seizure.”
*481 Our Supreme Court’s per curiam opinion in State v. Novice Dan Harris indicates, to me, a reaffirmation of the holding in Talley v. State, 345 S.W.2d 867, 869 (Tenn.1961); that strict compliance is required inorder to secure the citizen against carelessness and abuse in the issuance and execution of search warrants.
In the present case, from the evidence developed at the hearing on the motion to quash the search warrant, the trial court found that at the time the search warrant was issued, “three copies were made but subsequent to that time the magistrate’s copy had been ‘misplaced’.” The trial court concluded that an otherwise lawfully valid search should not be deemed fatal because of a lost or misplaced copy of that search warrant. Herein the trial court, and the majority of this court, placed unwarranted accent upon the absence of allegations of prejudice or of “deletions or additions.” I did not consider this a proper demand upon a citizen but, otherwise, I concurred in the results on the theory of substantial compliance with Rule 41(c), Tenn.R.Crim.P. and the rationale of Judge Daughtrey’s dissent in State v. Harris, supra, which was apparently rejected by the per curiam opinion.
Now bowing to the rule that “strict compliance” is required to secure the citizen against carelessness and abuse in the issuance and execution of a search warrant, I am unable to agree with the majority in rejecting the motion to rehear. Strict compliance requires that a magistrate zealously preserve his copy not only as a part of his official records, but as proof of the integrity of the justice system. Far greater abuse will flow from permissive indifference towards the preservation of the “neutral” magistrate’s copy of the search warrant than in those cases where the omission of time is apparent on the face of two of the copies, as was the case in State v. Harris, supra.
I would grant the motion to rehear, reverse the trial court’s action on the motion to quash and remand.