23A-36-1      Determination by magistrate whether probable cause exists for search warrant--Notice of hearing to person in possession.
23A-36-2      Hearing on search warrant for obscene material--Evidence received.
23A-36-3      Magistrate's orders to prevent removal of material pending hearing.
23A-36-4      Hearing on obscenity or nonobscenity of material--Determination of probable cause for search warrant.
23A-36-5      Issuance of search warrant on finding of probable cause.
23A-36-6      Notice alleging nonobscenity of material seized--Time of hearing.
23A-36-7      Hearing on obscenity of material seized--Return to owner if not obscene.
23A-36-8      Expert testimony not required in obscenity hearing--Evidence of community standards.
23A-36-9      Verdict on obscenity of material seized.
23A-36-10      Order for destruction of obscene material seized.

23A-36-1. Determination by magistrate whether probable cause exists for search warrant--Notice of hearing to person in possession.

Upon the filing of an affidavit for a search warrant to search for obscene material, the magistrate shall determine, by examination of the matter sought to be seized, if attached, by an examination of the affidavit describing the matter, or by such other manner or means that he deems necessary, if probable cause exists for a hearing upon the question of the issuance of a search warrant. If the magistrate determines that probable cause exists for a hearing, he shall issue notice to the person or persons in possession of the matter, setting a time and place for a hearing to determine if a search warrant shall issue.

Source: SL 1974, ch 165, § 7; SDCL Supp, § 22-24-39; SL 1978, ch 178, § 452.

23A-36-2. Hearing on search warrant for obscene material--Evidence received.

The hearing on the affidavit for the issuance of a search warrant shall be at such time and upon such reasonable notice given in such manner as the magistrate may direct. The magistrate's order as to notice and hearing shall give the adverse party the right to appear and produce the matter described in the affidavit for a search warrant, but shall not in any manner require him to produce the said matter.

Source: SL 1974, ch 165, § 8; SDCL Supp, § 22-24-40; SL 1978, ch 178, § 453.

23A-36-3. Magistrate's orders to prevent removal of material pending hearing.

The magistrate shall further have authority to render such orders as are reasonable and necessary, to protect the court's jurisdiction over the matter described in the affidavit for a search warrant and may issue orders requiring that the matter not be removed from its location as described in the affidavit for a search warrant or to make any change, alteration, or destruction of the matter until such time as a hearing has been conducted and the search warrant executed or the request therefor denied.

Source: SL 1974, ch 165, § 9; SDCL Supp, § 22-24-41; SL 1978, ch 178, § 454.

23A-36-4. Hearing on obscenity or nonobscenity of material--Determination of probable cause for search warrant.

At the time of the hearing on the issuance of a search warrant, the magistrate shall hear evidence concerning the obscenity of the matter and shall examine the matter or any copy of the same, if produced in court, and shall afford any person in possession of the matter sought to be seized or claiming ownership of or interest in the matter an opportunity to be heard as to the obscenity or nonobscenity of the matter. At the close of the hearing, the magistrate shall make a determination of whether probable cause exists to believe that the matter is obscene or nonobscene and shall determine if probable cause exists for the immediate issuance of a search warrant for its seizure.

Source: SL 1974, ch 165, § 11; SDCL Supp, § 22-24-43; SL 1978, ch 178, § 455.

23A-36-5. Issuance of search warrant on finding of probable cause.

If the magistrate finds that probable cause exists to believe that the matter is obscene and that probable cause exists for the immediate issuance of a search warrant, then he shall issue a search warrant ordering the seizure of the matter described in the affidavit for a search warrant.

Source: SL 1974, ch 165, § 12; SDCL Supp, § 22-24-44; SL 1978, ch 178, § 456.

23A-36-6. Notice alleging nonobscenity of material seized--Time of hearing.

In the event that a search warrant is issued and matter alleged to be obscene is seized, any person alleged to be in possession of the matter or claiming ownership of the matter at the time of its possession or seizure may file a notice in writing with the magistrate within ten days of the date of the seizure alleging that the matter is not obscene and the magistrate shall set a hearing within one day after request therefor, or at such time as the requesting party might agree.

Source: SL 1974, ch 165, § 13; SDCL Supp, § 22-24-46; SL 1978, ch 178, § 457.

23A-36-7. Hearing on obscenity of material seized--Return to owner if not obscene.

At a hearing pursuant to § 23A-36-6, evidence may be presented as to the obscenity or nonobscenity of the matter seized and at the conclusion of such additional hearing, the magistrate shall make a further determination of whether probable cause exists to believe that the matter is obscene or nonobscene. If at such hearing the magistrate finds that no probable cause exists to believe that the matter is obscene, then the matter shall be returned to the person or persons from whom it was seized.

Source: SL 1974, ch 165, § 13; SDCL Supp, § 22-24-47; SL 1978, ch 178, § 458.

23A-36-8. Expert testimony not required in obscenity hearing--Evidence of community standards.

In the prosecution for a violation of the provisions of this chapter, neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the obscene or harmful character of the matter which is the subject of any such prosecution. Any evidence which tends to establish contemporary community standards of appeal to prurient interest or of customary limits of candor in the description or representation of nudity, sex, or excretion, or which bears upon the question of serious literary, artistic, political, or scientific value shall be admissible when offered by either the prosecution or the defense.

Source: SL 1974, ch 165, § 5; SDCL Supp, § 22-24-49; SL 1978, ch 178, § 459.

23A-36-9. Verdict on obscenity of material seized.

The jury, or the court, if a jury trial is waived, shall render a general verdict. In the verdict that is rendered, a determination as to whether the material is obscene shall also be made.

Source: SL 1968, ch 29, § 8; SDCL Supp, § 22-24-18; SL 1974, ch 165, § 4; SDCL Supp, § 22-24-50; SL 1978, ch 178, § 460.

23A-36-10. Order for destruction of obscene material seized.

Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter in respect whereof the accused stands convicted, and which remains in the possession or under the control of the prosecuting attorney or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.

Source: SL 1968, ch 29, § 12; SDCL Supp, § 22-24-23; SL 1974, ch 165, § 16; SDCL Supp, § 22-24-51; SL 1978, ch 178, § 461.