State v. Lamont

I have not now own at the time he executed general this rule and Contestants his authority contrary posi- to this will. cited

tion. affirm. [¶ 11.] We on nu [¶ 9.] We have stated MILLER, Justice, Chief and the intent of the merous occasions SABERS, KONENKAMP, and objective to primary testator is the inter GILBERTSON, Justices, concur. Klauzer, preting a will. Estate 2000 SD

7, goal interpret 604 N.W.2d 474. “Our a will is to discern the testator’s intent. used,

If language intent is clear from the Klauzer, that intent controls.” 2000 SD ¶ 9, 604 N.W.2d at 477. The testator’s on the nu depend legal intent does not legal probate ances distribution and 2001 SD 92 Rather, passing inquiry of title. our is Dakota, STATE of South Plaintiff by “limited to what meant what he [Ervin] Appellee, said, not we think meant to [Ervin] what

say.” Id. . Jerry LAMONT, A. Defendant Appellant contest, At probate testimony the trial court heard three No. 21189. witnesses who testified as to Ervin’s intent Supreme Court of Dakota. South subject to allow this land to to Don’s right purchase per acre. Al $100 Argued Oct. 2000. though extrinsic evidence is admissible to July Decided clarify any ambiguity, ambiguity “an is not simply parties of itself created because the interpretation

differ as to the of the will.” ¶ Klauzer, 2000 SD 604 N.W.2d at Dakota, (quoting City Watertown Co., Minnesota & Eastern RR 1996 SD ¶ 576). plain unambiguous language of the will does not testimony warrant outside order for the court determine Ervin’s intent. “We de clearly that the intent termine testator’s expressed within the four corners of the by unambig

document. are bound We Therefore, language uous of the will. ex Klauzer, trinsic evidence is not needed.” ¶7, 2000 SD 604 N.W.2d at 478. While may it have been error for the trial court testimony, to consider sup such the record ports the court’s ultimate determination Ervin land inherited was “land

area. Based on the initial accident investi- that another gation, believed stop sign vehicle involved ran the and col- motorcycle. lided with Hall’s investigation [¶ While the the ac- proceeding, cident scene was Officer Rud dispatched and Olson were to the Horse- General, matter. Prior Barnett, Ann shoe Motel on unrelated Attorney Mark C. this, General, had received an Attorney all-points Meyer, Assistant Pierre, SD, regarding bulletin the hit-and-run acci- Attorneys plaintiff ap- arrival, Upon dent. their Officer Rud no- pellee. matching ticed a white Ford Escort the Rensch, SD, Timothy Rapid City, At- J. description of the car described the all- torney appellant. for defendant and points bulletin. The Escort had a dented Robert A. Justice Amundson [¶ 1.] quarter-panel, left front a smashed wind- majority opinion the delivers shield, car, spots blood inside the and 1, which holds that the Court on Issue blood on the driver’s side door handle. refusing trial court erred to admit observations, Upon [¶ 6.] these Officer evidence on the decedent’s blood alcohol requested investigator Rud the at the acci- level. dent to come to motel with the broken Konenkamp John K. de- [¶ 2.] Justice parts found at the accident scene. It was majority opinion livers the of the Court fit parts determined these broken into 3, holding on Issues and the search of damaged the area the Ford Escort. dwelling was reasonable un- Lamont’s Next, Officer Rud called in the Ford’s the Amendment and the der Fourth cir- number, plate license which revealed the cuit did err court when it allowed Jerry owner as Lamont whose address evidence of second blood test. Motel, # was the Horseshoe room 15. AMUNDSON, Justice, writing for the supervi- [¶ 7.] Officer Rud advised his majority on Issue findings sor of their and asked to enter # receiving permis- room 15. After such Jerry appeals [¶ Lamont his convic- 3.] sion, the officers knocked on the door with felony tion for vehicular homicide and hit response. no The officers observed that and run. affirm We Issues re- the door was unlocked and entered the verse on Issue and remand for a new (first search). unoccupied premises After trial. entering, the officers conducted a search of room, bedroom, bathroom, living the FACTS spots where noticed blood in the bath- May [¶ 4.] On Ronald Dean bloody pair pants lying room sink and a Hall riding motorcycle was killed while his on the bedroom floor. Rapid City, Mr. South Dakota. Hall lying by relayed was discovered findings [¶ 8.] beside the road Officer Rud the passer-by shortly Sergeant Vlieger. Upon before he died. Due to of the search to station, paint motorcycle, police Vlieger white found on the his arrival at the accident scene indicated that a vehi- directed Rud to motel and white return cle hit A arrange- the victim. witness also observed secure the area while he made get Upon small white vehicle flee accident ments to a search warrant. appeals raising noticed that Lamont three is- returning, the officers sues: lights locked and the were off. door was 1) on the motel room

Again, Rud knocked trial Whether the court abused its with no answer. Officer Rud called by granting door discretion the State’s mo- manager so could let them into that he tion in limine to forbid the defense to manager question room. The unlocked the door or comment dece- apparent dent’s gained and Officer Rud entrance to blood alcohol level at (second search). the time Lamont was found accident. room therein where he was observed with fresh 2) by Whether the trial court up- erred cuts on nose and head. his holding the second search of La- dwelling. mont’s Lamont was asked come to the 3) Whether a second per- blood draw station where he was arrested for police formed was reasonable homicide, man- second-degree vehicular under the fourth amendment. hit slaughter, Upon and run. receiv- warnings, Miranda he was instructed STANDARD OF REVIEW give two samples. blood Per review of a [¶ 12.] Our motion instruction, sample each was taken with an alleged based on an suppress violation hour interval between the two tests. constitutionally protected of a right trial, Prior to the court ruled [¶ 10.] question of law examined de novo. See ¶ that not ex- emergency circumstances did 53, Hirning, 9, v. 1999 State SD 592 ist,1 “exigent thus this facet of the circum- 600, 603; v. N.W.2d Ornelas United exception States, require- 1657, stances” to the warrant (1996) (standard 1663, apply suppressed ment did not all of relating evidence to the first search. De- questions review for under the Fourth Khan, spite police Amendment); a warrant to having search v. United States 993 room, (9thCir.1993). 1368, Lamont’s the court denied Lamont’s F.2d 1375 We review to suppress findings clearly motion the second search of of fact under the errone Almond, dwelling determining Lamont’s the ous standard. v. search See State (S.D.1994). 572, justified to “effectuate a custodial in- N.W.2d 573-74 Once the determined, however, terrogation.” The court also held La- facts have been mont’s application legal blood tests were obtained incident of a standard to those to lawful granted question arrest. The court facts is a of law reviewed de novo. Falls, prohibiting Spenner City State’s motion limine de- v. Sioux 1998 SD ¶56, 13, testimony fense counsel from eliciting 610. Whether N.W.2d commenting apparent on the decedent’s had a “lawful basis to conduct a ques blood alcohol level at the time of the acci- is reviewed as a warrantless search Sleep, dent. tion of law.” 1999 SD State used, 1. This determination made the trial court did not call for an ambulance nor elapsed was based on the facts that the time they bring along pro- did their medical kit observing upon actually blood enter- actually vide assistance if someone was in- ing the motel Lamont room of was over an jured inside Lamont’s motel room. The court hour; that blood alone is not indicative of a facts, purpose found that based on these possibly explained crime and could entering investigate the room was to means; through alternative and that testimo- crime, possible provide and not to medical ny of the on-the-scene officers did not treat it assistance. emergency: gloves as an no rubber were ¶ (citing erated or drove a motor in a 590 N.W.2d State vehicle (S.D.1993) (ci- Krebs, negligent manner. N.W.2d omitted)). Thus, on the issue of tation 2. at the That the defendant time and exception warrant re- whether an place under the influence of an is reviewed de novo. quirement applies beverage. alcoholic operation

3. negligent That the or driv- proximate was a cause DECISION

Ronald Hall.

death of Blood Alcohol

Issue 1. Decedent’s did so That the defendant without a Level design to effect the death of Ronald Hall. trial, Prior to the State This instruction reflects a correct argued decedent’s alcohol state- that blood Bulls, ment of law. State v. Two 1996 SD level to Lamont’s criminal was irrelevant ¶ 14, 766. The State culpability sought prohibit an order to Bulls, holding claims that in Two our how- of it. defense counsel mention ever, precludes raising the defense from granted The trial court State’s motion contributory defense based on negligence. attempt to prove limine. In its stop Bulls, at a stop sign, Lamont failed to In Two victim was a put passenger State forth evidence the reaction in the rather vehicle than a Moreover, average person time driver. Bulls was for an was 1.6 sec Two not un- influence, trial, der the prosecution onds. nor did the At the defense wanted to con open by proffering expert door testi- expert trovert perception the State’s mony as to causation. thrust of the general motoring pub reaction of the time that argument State’s is defense lic. asked the State’s acci The defense should to not be able use decedent’s dent whether figures reconstructionist his way blood alcohol level in because the legally would if the victim be accurate was decedent’s contributory negligence irrel- is this, drunk. defense For counsel was hand, however, evant. at The issue violating fined for the terms the motion whether the defense should be allowed to appeal, argues in Lamont that limine. On put on a defense that includes the use speed and intoxication of the excessive the decedent’s blood alcohol level where prox decedent to the was relevant issue of decedent operating the other vehicle imate cause. involved in the accident as to that it show “independent intervening traditionally method constitutes [¶ 14.] One “proximate cause” and the cause taken by the defense is to attack the ele ¶ Bulls, supra, death.” Two See 13 charged. Generally, ments of offense Rotella, (citing State v. 196 Neb. 246 putting defense does this evi on (1976)). in N.W.2d Our decision dence creates a as that reasonable doubt Tico Bulls preclude does not Lamont from to particular whether a element was satis offering in of his support evidence defense. fied. question proxi In is the element of mate jury cause. The instruction for ve a [¶ 16.] When defendant is de homicide, hicular pertinent reads part, ability respond nied the to the to State’s prove as beyond follows: The state must a him, against deprived case he is of “his reasonable doubt: right fundamental constitutional to a fair

1.That the defendant the time and a defense.” opportunity present to Crane 683, 687,

place alleged op- in the v. Kentucky, Information 476 U.S. (1986). 2142, 2145, “a perceived apple,” 90 L.Ed.2d 636 We second bite at the Necklace, Iron cited in State v. are mindful that a defendant in we a crimi- (S.D.1988), notions of fundamental nal opportuni- case should be afforded the require “that criminal defendants fairness ty challenge any element of the crime meaningful opportunity a be afforded charged present complete and a and valid complete a defense.” See also present defense. Trombetta, California [¶ 18.] We reverse on this issue and S.Ct. remand for a new trial. only It is fair that a defendant a present criminal trial be allowed to his MILLER, Justice, Chief theory of the case. SABERS, KONENKAMP, Although argues Lamont [¶ 17.] Justices, GILBERTSON, concur. that appeal the decedent’s blood alcohol in challeng level is relevant his defense KONENKAMP, Justice, writing for the cause, ing his nebulous proximate argu majority on Issues and 3. ment trial court does not address Entry Issue 2. Warrantless La- into aspect cause independent-intervening Dwelling mont’s remanding of the case.2 Since we are this argues Lamont the second case, upon pres it is incumbent Lamont to dwelling accomplished search of his authority clearly why ent state such violation of the Fourth Amendment. The questioning should be allowed. Lamont apartment entered his motel without show that the victim’s intoxication must warrant, claiming emergency. medical proximate level is related to the issue of cause, rejected expressly The trial court this ra- contributory negligence. While recognizes may this Court this tionale. It ruled that the “health and well- (1996) ("An independent intervening It is true that a defendant in a criminal case can be convicted of crime when his or her may act be so disconnected and unforeseeable many cause; conduct is one of causes for the result superceding as to be the in such a case Bulls, supra; death. See Two State v. remote, the defendant's act will be and not Theuring, App.3d 46 Ohio N.E.2d 546 Dionne, cause”); proximate the State v. 442 William, 84, (1988); 436 State v. 231 Neb. 876, (R.I.1982) ("The A.2d 887 deceased's N.W,2d be, (1989). may 435 174 There how negligence is irrelevant absent evidence that ever, circumstances the actions of where support finding a deceased's would other than the defendant are someone independent conduct amounted to an inter- Bulls, proximate cause. As stated in Two vening judge cause.... Before the trial is negligence "the or unlawful acts of another obligated charge jury regarding to proximately driver which death, contributed to the may given consideration that be to the de- distinguished independent an from conduct ... ceased's case evidence thereof, intervening cause not a de [are] must have been introduced which would indi- ¶ Supra, (emphasis supplied). at 13 fense[.]” cate that the deceased's conduct was the sole Examples of where courts drawn a have dis death and that the cause of her defendant's independent intervening tinction an between nothing fatality.”); conduct had to do with the contributory negligence Pagot cause and are: 137, Dunhill, Colo.App. People v. 40 570 P.2d State, 271, 920, Md.App. to v. 127 A.2d 732 1097, (1977) ("Absent proof 1098 that it was (1999) ("It possible negligence 966 is for independent intervening cause the contrib- the deceased or another to intervene between utory negligence of a the victim is not defense his conduct and the fatal result in a such homicide”). prosecution cause, in a for vehicular As superceding manner as to constitute a such, a defendant should not be foreclosed completely eliminating the defendant from causation”); independent- putting evidence proximate People from forth the field of v. Schmies, 38, Cal.App.4th intervening Cal.Rptr.2d 44 51 causes. 610 (citations omitted). -, 121 at 1878 not the S.Ct. [offi-

being of the [defendant Nevertheless, duty legal to make our own It is our motivation.” cers’] decide under entry the warrantless assessment of the evidence to court concluded it done to Fourth Amendment whether the offi- was reasonable investigation “objectively reasonable.” a homicide cers’ actions were accomplish brief, Buie, 325, 330, Lamont appellate In 494 Maryland his v. U.S. arrest. See (1990). why asks, rely 1093, to on “Do we want 110 S.Ct. to or do we want say they objectively, entered police Viewing the circumstances their justify reason to try justify to think of a exigent had circumstances after the fact?” arresting actions the defen- entering the room and ] felony hit dant for vehicular homicide and keep It important [¶ 21. Thus, did and run. the search seizure by the are not bound in mind that we Lamont’s Fourth Amendment not violate review legal conclusions: we circuit court’s rights. Hirning, 1999 SD anew. legal questions ¶ 9, findings 53, at 603. “Fact 592 N.W.2d The bears the State error, ultimate for clear but are reviewed entry justifying a burden warrantless reviewing decisions motions ly, in constitutionally protected into a area. See viola constitutional suppress for asserted Louisiana, 30, 34, 90 v. 399 U.S. S.Ct. Vale of review is de novo.” tions our standard (1970) (citations 1969, 1972, 26 409 L.Ed.2d ¶ 149, 10, Morato, 619 SD State v. 2000 omitted); 122, Meyer, 1998 SD State Ornelas, (citing 517 U.S. 669 N.W.2d ¶ (citations omit 723 at 134 L.Ed.2d S.Ct. ted). entering suspect’s resi Before 920). not con we are Consequently, arrest, to effect an officer must dence legal judge’s rationale by strained the trial exigent possess an arrest warrant absent entry. Nor are we upholding York, Payton circumstances. v. New subjective justifica officers’ bound 573, 602-03, 1371, 1388, U.S. S.Ct. play intentions no role “[Subjective tion. (1980). exigency excep L.Ed.2d 639 cause Fourth ordinary, probable dictate tion exists some situations because analysis.” Arkansas v. Sulli Amendment than de police response immediate rather — van, U.S. -, -, judge. lay to obtain a warrant (2001); 1878, 149 L.Ed.2d Whren “within the Exigency remains narrow States, 806, 813, 116 v. United range present of circumstances that real L.Ed.2d 89 S.Ct. danger public or the or a real officer does not have [an] The fact that suspect might danger that evidence or hypothecated the state of mind which is Bulman, 667 F.2d lost.” United States provide legal by the reasons which (11th 1374, Cir.1982)(emphasis 1384 add justification the officer’s action does ed). v. example, For United States long action taken as as invalidate the (11th 1354, 1357, F.2d n.1 Cir. Roper, 681 circumstances, objectively, viewed 1982), suspect of a in his motel the arrest justify that action. justified by warrant was room without a (1) States, 128, 138, where there exigent v. 436 U.S. circumstances Scott United (1978). multiple arrests at the 98 L.Ed.2d 168 were simultaneous S.Ct. 56 (2) transaction, drug a objectively An based on conclusion of reasonable search fear that the defen probable legitimate rendered invalid there was cause will not be must escape. dant would Police show even when the motive for the search — Sullivan, circumstances pretextual. probable exigent at cause and See U.S.

611 felonies, making entry a warrantless into a but opinion before states that cir felony Pay home for a arrest. person’s clearly exigent cumstances are more when ton, 589, 1381, at 63 U.S. S.Ct. the offense is a “serious crime.” Id. at (citations omitted). 752, L.Ed.2d 639 104 S.Ct. 2091. The reasoning in spawned

Welsh a number of recog cases nizing the proposition blood alcohol A. dissipation may create destruction of evi The Supreme Court v. Welsh exigency dence justifying a warrantless en Wisconsin, 466 U.S. try Komoto, into a home. State v. (1984), L.Ed.2d 732 examined whether the (1985); Wash.App. 697 P.2d 1025 Peo need to obtain the blood-alcohol level of a Keltie, ple 148 Cal.App.3d 196 Cal. driver who had fled the scene of an acci (1983); Rptr. Stark v. New York dent would constitute an circum “exigent Vehicles, Dept. State Motor 104 A.D.2d stance.” Id. at 104 S.Ct. 2091. In 194, 483 N.Y.S.2d 824 Welsh, the driver lost control of his car field, in a up causing injury and ended no B. A damage.

or witness who saw the driver away police wTalk told the that the driver [¶ In a case with striking 25.] similari own, was either inebriated or sick. ties to our Supreme the Minnesota Court, banc, went to the driver’s house and entered sitting upheld en a warrant- stepdaughter after the driver’s entry suspect’s answered less into a home after a hit bed, They Storvick, the door. found the driver in and run. See State him, arrested and asked him to take an N.W.2d 59 (Minn.1988)(distinguishing implied consent test. He declined. When upholding entry). Welsh and warrantless his license was automatically suspended Because the circumstances Storvick are test, for refusing challenged the blood he analysis, critical to our it is necessary to 742-43, the decision in court. Id. at 104 detail the facts of that case. A seventeen- S.Ct. 2091. year-old girl and her friend walking were alongside p.m. the road at 9:00 A car hit The United Supreme States her, sending flying through her the air for exigent Court held neither circum- over The car 100 feet. did not brake or pursuit justified nor hot entry stances impact. slow before It continued to drive Welsh, into Welsh’s home. An stopping. without ambulance and the 753-54, 2099-2100, 104 S.Ct. at 80 L.Ed.2d dispatched were to the scene mo 732. The heavily Court relied on the na- ments later. The victim’s friend told the offense, ture of the which in Wisconsin is a happened. officers what She described civil forfeiture traffic violation where no the car brand new 1986 or 1987 imprisonment was possible. See id. model, in color. Id. at white There, exigencies were insufficient to requirement overcome the warrant in the police investigation began [¶ 26.] The context of immediately. an arrest for a civil traffic of- processing Officers Nonetheless, fense. Id. the Court held scene no found skid other tire marks. important determining that an factor in hospital Id. Another officer went to the exigency whether an exists gravity is “the and learned that the victim was uncon- underlying offense for which the injury. grave scious with a severe head In condition, being arrest made.” Id. at she would be flown to Rochester stopped S.Ct. 2091. Welsh short of draw- in the that hope something could be done a ing bright line between felonies and non- for An her. officer took several items of and victim, deputy rang a the doorbell including her iff and by the clothing worn no on the door. There was re- shoe, pounded being left one miss- the right tennis “thump.” one of them heard a sponse, but Meanwhile, obtained some the sheriff ing. garage They Id. entered the attached at the scene deputies crash debris from pound- door and through open garage the dealership. local car to the proceeded and garage the ed on the door that led from them, department studying parts a After response. they got house. no the Still frag- the debris explained that employee door opened The sheriff then the unlocked and right front side ments were from inside, room, family stepped into the from a Ford car manufac- probably came depart- it was the sheriffs announced that Officers can- after March 1985. tured home, anybody if was ment. He asked attempt in an to locate the area vassed you can hear me? yelled, “Brandt Ford a newer model white witnesses and Hello, Brandt.” Id. Anybody home? damage. Id at 56-57. right with front-end (Bracketed omitted). Finally, information spotted officer p.m., At 11:15 [¶27.] something up- the defendant said damage to Tempo Ford with a white 1986 stairs, “This is Don replied, and the sheriff The car was at an intersec- right its front. Department. Nolander from Sheriffs from the approximately tion half-mile Brandt, you you. need to talk to Do we the accident. When officer scene of you want want to come downstairs or do vehicle, driver, who approached upstairs you?” and talk to Id. us to come sister, got was married to the defendant’s The defendant said he would be down. out, saying, you looking “Are for this?” down, the defendant came [¶ 29.] When trooper yes at said and asked Id. 57. The sheriff, learned that the vic- who had he The driver doing. the driver what was dead,” said, “Brandt, was “brain we tim off work a explained gotten that he had investigating a serious accident that is are the defendant’s short time earlier and that fatality, going up being to end probably place looking mother’s for wife was his you need to talk to about that.” and we driver found the defendant him. The stupor in a Id. The defendant Storvick was took the car asleep home his bed and scared, “I I can’t responded, am too keys and left. Id. The from the bedroom anything” you and “What are talk about at the witness who was with the victim my Id. The defendant doing house?” brought accident time of the was felony arrested for the offense of leav- scene, positively and she identified the car injury personal the scene of a accident. hit the as the one that victim. get- Id. at 58. When defendant was pieces of from the determined that debris dressed, ting one of the officers noticed perfectly accident scene fit on the car. him. The officers told liquor odor of the car They checked and learned him taking would be Storvick belonged dealership, to the local Ford test or with- hospital blood with employee. where the defendant was respond- out his consent. The defendant Id. ed, I got “I drank after home.” Id. When go im- The officers decided to if checked the house to see the officers mediately to the defendant Brandt Stor- there was evidence defendant home, they They p.m., liquor got vick’s house. arrived at 11:28 had drunk after he they ap- As later his hours after the accident. found none. The test showed ½ house, proached one found the to be .19. The defendant officer BAC felonies, ve- charged including with several missing victim’s tennis shoe the drive- hicular homicide. way. The residence was dark. The sher- Using dissipated.” a' de novo standard of dence Id. at impor- 60. It is review, Supreme note, however, the Minnesota Court rea- tant to that the facts do not (1) strong proba- soned: The officers had indicate that officers had direct ble cause to believe that Storvick had com- evidence that the defendant had been very felony mitted the serious offense drinking they before entered home. his vehicular operation either criminal or they give Nor did entry as their reason for operation resulting criminal vehicular get sample. the need to a blood Yet the death. To obtain a conviction for either court stated: offense, prosecution had to show Here, by fleeing the scene of the acci- “grossly negligent driving” “negligent dent, prevented defendant the police driving by one who either was under the observing from him and basing proba- influence of alcohol or had a blood alcohol ble cause assessment on their observa- concentration of .10 or more.” Id. at 59. However, tions. there nonetheless was (2) The investigation” began “field at 9:07 objective believing basis for that it accident, immediately p.m., after the and it necessary was to scientifically ascertain ongoing up was and continuous to the ar- (a) defendant’s blood alcohol level: at a (3) cautiously rest. The officers acted and minimum, had strong evidence regard rights with due for the and sensibil- negligently driving inattentive on de- the people They ities of involved. checked part, fendant’s the sort of inattention to match the car damaged pieces with the that often explained by the defen- found at They the scene. also checked being dant’s under the influence of alco- and found that the car belonged (b) hol; that, day it was the time of employer. they defendant’s When went to occurs, when an accident such as this the defendant’s house after the hours ½ involved; drinking is often found to they accident were satisfied that the defen- (c) the fact that driving only dant had been the car. After ar- defendant not did scene, riving certainty only their not slow down fled but the scene tended finding missing suggest increased the victim’s to drinking, that he had been driveway. shoe defendant’s Id. BO- being intoxication a common peo- reason (4) respond (d) GO. The defendant did not to accidents; ple flee family [a mem- repeated knocking officers’ and door- statement to the ber’s] that defen- ringing, bell but officers heard a asleep got keys dant was and that he “thump.” They entered ga- the attached certainly defendant’s bedroom fits rage through open garage door and in with the view that defendant was pounded on the door that led from the intoxicated or under the influence and garage into the residence. Still there was (e) out; gone passed had home and response. no that point At the sheriff had fact that defendant left the victim’s shoe attempt a decision to make: to obtain a driveway perhaps in the sug- tended to proceed warrant or to enter the house gest that he intoxicated or at least without warrant. Id. (f) influence; under the fact that respond defendant did not the re- The court concluded that the of- peated knocking loud properly entering ring- ficers acted doorbell the house suggested without a further they every warrant “because had defendant ei- passed reason to believe that ther had out or that he defendant had been heard drinking quickly police-and needed to act as not going to answer be- possible precisely hide, something ascertain defen- cause he had most dant’s blood alcohol level before the evi- likely drinking. he had been Con- arrest, a.m., up continued an 4:00 and provided these facts together,

sidered believing that it was 5:00 and 6:00 a.m. for which occurred between objective basis blood defendant’s necessary to ascertain was drawn at 7:40 The defendant’s blood (3) alcohol level. The officers again a.m. at 8:40 a.m. and regard for added). cautiously and with due acted Finally, (emphasis at 60-61 Id. people of the rights were the and sensibilities that the emphasized the court “extremely They simply of not discover serious” involved. did investigating the homicide, imply felony immediately vehicular seek damaged fense of the car and differ might have been that the result ing They motel room. checked entry into the being investigated had “if the offense ent car found that of the and registration the Id. at 61. serious offense.” been a less to Lamont. Then registered it was Clement, States See also United at the motel and registration checked the (8thCir.1988)(citing 1119-20 F.2d living registered that he was discovered Welsh, necessity looking noting the parked damaged in Room 15. The car was offense, characteriz gravity the They checked to in front of that room. of trafficking as “a serious ing cocaine damaged pieces car with the match the room). entry into hotel justified fense” that Indeed, Ron- found at the scene. Officer piece at the scene brought feldt a found C. missing on the put piece it next to a Now, the we examine Furthermore, there perfectly. car. It fit (1) The officers had facts of our case. the inside of was blood on the outside and cause to believe strong probable car, strongly indicating the that both the homi felony offenses of vehicular serious the car driver and someone else outside injury had been cide and hit and run with Thus, injured. the officers could had been The victim died the scene. committed. reasonably person the satisfied for vehicular homi To a conviction obtain person who had inside room was law, Dakota the State cide under South Although in the accident. been involved driving one negligent who had show in motel room does not of suspect living of alcohol either under the influence was circumstance exigent itself create an allow- alcohol concentration of .10 had blood require- ing departure the warrant (maximum pen or more. 22-16-41 SDCL ment, temporary nature of a rented alty years). To obtain a conviction fifteen in certainly room be a factor decid- should run, had to felony hit and the State requirement for a warrant whether in an prove that the driver was involved (4) by exigency. The defendant is excused resulting injury accident or death to a repeated to the officers’ respond did not immediate person, that the driver failed to They then knocking for over five minutes. address, ly give his name and stop and entered the unlocked room. defen- person failed that the driver to render present, but the TV and all dant was assistance, injured including reasonable bloody There were lights were on. person to medical treatment carrying such room, only confirming further items in the necessary if or was such treatment was person in the room had been requested by injured person. SDCL (5) nobody accident. With (maximum (2) penalty years); two 32-34-3 room, return to the the officers decided to investigation” began at 2:00 The “field their relay station to the information to a.m., accident, immediately after the They go were directed to back supervisor. time the defendant’s car ongoing at the it until a search the room and secure spotted at the Horseshoe Motel However, could warrant be obtained. tive basis believing for it that was neces- they they sary when returned now found that to ascertain defendant’s blood alcohol added). the room lights was locked and the TV and level.” Id. at 60-61 (emphasis all get were turned off. The officers could The court found that additional fact “[t]he response anyone no from inside. percentage that ‘the of alcohol in the blood begins to shortly diminish after drinking At that point, police [¶ 33.] had a stops, body as the functions to eliminate it difficult decision to make: continue waiting system,’ meant that ‘[t]here until outside a search warrant could be no time to out a magistrate seek and se- proceed obtained or to enter the room ” cure a warrant.’ Id. at 61 (quoting without a warrant. The door that had California, Schmerber v. 384 U.S. open been before was now locked. Was 770-71, 1826, 1835-36, 86 S.Ct. 16 L.Ed.2d suspect If the room? he had been (1966)). drinking, the blood alcohol evidence was dissipating. injured Was he or uncon- Indeed, although [¶ 35.] the officers did scious? Or did he lock the door and flee? give it as a reason for their decision to Were guarding empty an room while room, enter the Judge Tice in his oral waiting for a search warrant? Or was findings remarked that as a for basis en- room, being destroyed evidence in the room, tering the the officers here needed making later obtained search warrant a to act quickly preserve blood alcohol act, useless exercise? Deciding the offi- evidence: of “[B]ecause the nature of the manager open cers had the motel the room fatality day, and time of there possibil- are key. They with the master found the de- ities, least, of alcohol being involved.” fendant inside and he made incrimina- Judge Tice found that there were “reasons ting comment when the officers came in. to believe that evidence might be diminish- bloody Some of the gone, items were but ed if the arrest in a [could not] effected the officers piece were able to secure a timely fashion.” clothing with blood on it. All relevant circumstances [¶ 36.] With Fourth Amendment suggesting that analysis, the accident was alcohol generally we bright-line avoid related in Robinette, Storvick also existed e.g. here: rules. See Ohio v. 519 U.S. strong 33, 39, negligent, 417, 421, evidence of 117 S.Ct. .inattentive (1996). driving, apparent with stop failure to at a The “endless variations in the (2:00 a.m.) stop sign; the late hour when facts involving and circumstances” drinking accidents; is often involved in Fourth per Amendment make se rules dif flight accident, from the scene of the indi- apply. Royer, ficult to Florida v. cating perhaps that the driver did not want 75 L.Ed.2d Thus, to confront the possi- because of the like the Minnesota Su intoxication; bility of Storvick, no response preme to re- Court which limited its peated knocking, suggesting that the “de- holding grave circumstances in that passed case, fendant either had out or that he we need not decide the re whether heard the going if, and was not sult example, would be the same hide, answer because he had something to investigation offense under had been less likely Storvick, most that he had been drinking.” serious. 61. But Storvick, See at 60. extremely N.W.2d As the here an oc serious offense Supreme concluded, curred, Minnesota Court objectively and an reasonable basis totality facts in their “provided objec- existed to enter the defendant’s room. in an to remain static longer going no

D. room. empty motel discussing transitory evi- In [¶ 37.] cases, Amend- spirit LaFave stresses Fourth Professor dence in the “planned” Sitting arrests between ment is reasonableness. the distinction the advan- ongo- sanctuary in the course of an of our chambers with those made Wayne may analyze R. La- investigation.” hindsight, we well tage “field 6.1(f), preci- § at 271- and clinical Fave, positions and Seizure with exhaustive Search (3d 1995). Supreme acting in the wee The Connecticut sion. But the officers ed. analysis in in the midst of their night used LaFave’s State hours of the Court Guertin, Conn.440, changing investigation, 461 A.2d 963 with events field (1983). approach, judg- the to use their best explaining unfolding, In this had They were confront- ment in the moment. court stated: choice. Time became ed with a difficult a arrest as “planned” defines [LaFave] acting subjective Their reason for critical. a criminal in- “one which is made after satisfy not the Fourth quickly may fully completed at vestigation has been Amendment, their actions but nonetheless a police location and the make another objectively in these circumstances were go to a certain deliberate decision to therefore sustain the trial reasonable. We home or place, either the arrestee’s ruling. court’s premises [or she] other where he some be, him to in order to take is believed Blood Draw Issue Second custody.” “planned” into In the [or her] does not chal [¶ 39.] Lamont suggests he arrest situation evidence from an initial lenge the obtained which exigent claimed circumstances police. the Nonethe blood draw taken foreseeable and may arise thereafter are less, he that the circuit court erred asserts justify a warrantless therefore would not suppress when it refused to evidence ob entry exigent circumstances unless the second blood draw taken tained from go into the present police are before the of the first. The State’s within hour the other field to make the arrest. On lim hand, right require, to within constitutional he would not fault the for its, an individual to submit to test an arrest warrant when the having not blood, fluids, body including is well estab an arrest arises while the occasion for ¶ 10, Nguyen, 1997 SD lished. State already in field inves- police are out 563 N.W.2d 122. Such intrusion tigating prior ongoing conduct transgress not the reasonableness re does which is the basis for arrest. Amendment. quirements of the Fourth Id. at 969. The Guertin court concluded Schmerber, at 86 S.Ct. at 384 U.S. arguably presented the facts while A blood arrest, no evi- planned because there was accomplished if it is reasonable draw dence that created the later arrest, aby to a lawful reliable incident emergency, suspect their belief that method, medically ap accepted might they quickly flee unless moved manner, proved probable and with cause Here, reasonable. Id. at 969-70. the offi- Ngu sought the evidence exists. believe motel, planning cers went back ¶47, 10, at 122- yen, 1997 SD defendant, intending to arrest but (citations omitted). sit and wait a search warrant. Yet no constitutional Lamont sees they [¶ 40.] when arrived the circumstances had sample, blood infirmity taking the first changed significantly. The evidence was AMUNDSON, taking (dissenting). fault Justice can see little reason to and we second, were taken especially I dissent on issues and 3 for [¶ 48.] samples apart. With two blood an hour forgoing reasons. accurately more ex laboratory could Lamont’s at the time of the trapolate BAC Entry Issue 2. into La- Warrantless Indeed, a second draw some accident. Dwelling3 mont’s exculpatory may instances elicit evidence A. [¶ 49.] Search incident to lawful consume alcohol after an for those who arrest stated, previously occurs. As accident The Fourth Amendment to the generally rules bright line are undesirable VI, United Constitution and Article States Ro jurisprudence. in Fourth Amendment § 11 of the Dakota pro South Constitution binette, people right vide that have the se must be allowed 136 L.Ed.2d 347. Courts houses, in persons, papers, cure their and the facts and in to consider circumstances against effects searches and unreasonable Considering totality of cir each case. long seizures. It been has established case, cumstances in this blood second prohibits the Fourth Amendment police draw was reasonable. entering into suspect’s home to 3, 2 Affirmed on Issues and re- [¶ 41.] felony Payton, make a arrest. 445 supra, 1, on Issue and remanded for a versed new 1371, U.S.

trial. (1980). is principle “It a ‘basic Fourth

Amendment law’ that searches and sei zures inside a home without a warrant are MILLER, and 42.] Chief Justice [¶ presumptively Payton, unreasonable.” GILBERTSON, Justice, concur.

445 U.S. at 100 S.Ct. 1380. War SABERS, Justice, in searches, therefore, 43.] concurs [¶ rantless arrests and part. in part and dissents are unconstitutional unless there is show ing by exemption those who seek from the AMUNDSON, Justice, dissents. [¶44.] requirement warrant that their actions fall narrowly exception. within a defined SABERS, (concurring in part Justice Thus, prove the State has the burden to in dissenting part). specific search falls into a delin eated and limited State v. exception. See I in concur Issue 1. [¶ 45.] (S.D. Heumiller, 317 N.W.2d 128 join I Justice Amundson’s dis- [¶ 46.] Max, 1982); State 263 N.W.2d 687 in sent Issue 2. (S.D.1978). analysis Our is also limited to perceived by “the facts at the police join I dis- [¶ 47.] Justice Amundson’s entry, subsequently time of the not as in sent Issue 3 under these limited circum- ¶ 23, Meyer, uncovered.” 1998 122 at SD stances, specially emphasize but write Heumiller, (citing at 724 may that it is there be numer- foreseeable 129). N.W.2d at in ous situations the future where a second justi- content The trial court determined that blood alcohol test would be in permissible fied. second search was or- prof- emergency exception I need not address the other State’s circumstances exception require- fered to the warrantless State file a Notice of Review. did not expressly rejected ment as the trial court in- incident to lawful ar- [¶ 53.] to “effectuate a custodial search police der for however, subject limi- exception, The trial court found that rest terrogation.” Lamont’s home tation. It is true that the arrest need not could enter precedent of the nature of be a condition to the search. a warrant because without Horse, potential of Lamont State v. Thunder 85 S.D. the crime and stated, law that We have howev- there.4 There is no case N.W.2d being er, To “effectuate that the search relation to the arrest exception. this establishes essence, is, interrogation” cannot be “remote from it either in time or a custodial Horse, place.” supra, arrest. To allow such ex- Thunder effectuate an State, A (citing Sipera swallow the rule. war- N.W.2d 19 ception would (Minn 1970)). Minn. procured must before the 175 N.W.2d 510 rant be Thus, can suspect exception impli- the home of a before before such enter cated, permissibly contemporane- made. While the search must be arrest can be to, exception part is no such as the “effectu- ous of a continual transaction to there interrogation” exception, ation of the arrest. custodial only argued we will address the State’s scope [¶ 54.] Because of the limited exceptions this case: search incident to reject I application exception, pursuit. and hot lawful arrest argument the second State’s constitutionally permissible The rationales behind the cre- search was un- guise to lawful der ation of the search incident arrest of search incident to lawful safety exception protect satisfy are to the officers’ arrest. The facts of this case fail to by suspect. potential escape temporal spatial aspects and avoid both the of ¶ Belton, Meyer, exception. this supra, excep- 25. Under See New York v. an requirement, tion to the warrant officer 453 U.S. 69 L.Ed.2d S.Ct. (1981); vicinity California, can search the immediate Chimel v. suspect gun because a or some other officer,

weapon may commanding within his or her reach. As directed his Likewise, exception Id. is also warrant- Officer Rud to the area until a secure suspect grab ed because the could also warrant was issued. Officer Rud chose Rather, something might again that lead to his or her not to wait. he entered this Therefore, escape. subsequently Id. if one of these room without a warrant and two advanced, being exception important reasons is found Lamont. It is to note applies, required and a warrant is not that Lamont was not arrested at that making a valid search. time.5 Lamont was not arrested until he important appears discrepancy to that the nature 5. It is note or There to be some probable inqui- whether cause existed to arrest La- severity is irrelevant to our of the crime prior entering mont to their his home. Prob- ry. argues State that because a death is cause, however, dispositive pro- able is not involved, disregard we should Fourth Amend- exception bative of whether to the warrant protections. ment It is instructive that requirement existed. "To be arrested in the Payton, charged were with the defendants ser- only home involves not the invasion of the robbery. ious crimes-murder and armed In sanctity simply of the home. This is too sub- Payton, Supreme Court de- the United States stantial an invasion to allow without a war- import nounced the of the nature of the of- probable clearly [ ] rant even when cause is [ ] engage fense and declined to in such a fanci- 588-89, Payton, 445 U.S. at established.” hand, analysis. ful In the case at the death probable 100 S.Ct. 1371. I fail to see how was an unintentional homicide at best. requirement. cause cures the warrant Under issue, holding majority’s it on this is obvi- Court, in reviewing pursuit” to the station over an the “hot exi- brought gency justifying entry, the search. How could this warrantless has hour after defined the the arrest occurred circumstance as one where exception apply when pur- after the search and at a there is “immediate or continuous over an hour suspect] Again, [a the an- suit from the scene of a wholly different location? Welsh, The rationales behind the 466 U.S. at swer is clear. S.Ct. crime”. Talbert, exception at 2099. In Commonwealth v. search incident to lawful arrest Va.App. (1996), if were to allow the 478 S.E.2d would eviscerate we explained the court pursuit “[a] to come before the arrest this is ‘hot’ search law- if the case. Because the search incident to circumstances are such that break- apply, delaying does not off or the chase for the time exception ful arrest required likely Fourth Amendment. to obtain is search violates the warrant significant danger any person, involve B. Hot Pursuit [¶ opportunity loss of evidence or for the suspect escape.” Such circumstances ground other that the trial [¶ 56.] The encompassed meaning within the of “hot the second upholding court relied on in pursuit” do not exist in the case before us. According search is hot pursuit. were,in To conclude that the officers hot court, flight trial Lamont was a risk and pursuit though they him, even never saw attempting to conceal himself. The court did not he know sure was the driver of also determined that the officers were in vehicle, and did not know he inwas pursuit. hot entry clearly room at the time errone- initial appearance 57.] The officers’ ous. investigate at the Horseshoe Motel was to pure happen- findings, an unrelated matter. It was These under either the standard, investigation clearly led to their erroneous or de novo stance Supreme upheld.7 entry, Lamont.6 The United States cannot be At the time of argued majority the ous that a South Dakota resident cannot re- on or to trial court. The being "exigent treat into his or her home without sub- now creates after-the-fact circum- intrusion, jected arbitrary governmental police thought ex- to stances” the officers never Moreover, though only upon by the even the officers were directed to isted. cases relied the majority factually secure the area. are dissimilar to the case at dealt a hand. Welsh with misdemeanor traf- Dictionary pursuit: Supreme 6. Black’s Law defines the fic offense where the United States chasing apprehend. act of to overtake or Court held that a warrantless intrusion into (7th 1999). dwelling Dictionary ed. was under Black's Law 1250 defendant’s unreasonable before, Here, mentioned the officers were the Fourth Amendment. we have what As called majority a to the Horseshoe Motel on an unrelated mat- the considers "more serious ter; important Payton, question driver the vehicle in was crime.” It is to note that the of time; Welsh, by not overruled unknown at the and Lamont’s room which was involved robbery. Despite unoccupied illegal armed the was found after the first murder and crimes, say Payton search. To that these officers were in hot "serious” nature of those pursuit general would all but eviscerate the court held that warrantless search of defen- prohibiting rule searches in violation of the dant's home violated Fourth Amendment. majority excerpts While the relies on certain Fourth Amendment. Welsh, protec- of dicta in Fourth Amendment Wisconsin, majority depend gravity 7. on Welsh v. tion not on the of the The relies should offense, Payton. As the Welsh 466 U.S. 104 S.Ct. 80 L.Ed.2d 732 as illustrated stated, Storvick, (1984) exigency simply 428 N.W.2d 55 court "no is created and State (Minn. 1988) upholding probable there cause to a search on an because is believe exception presented the State never evidence that a serious crime has been committed.” Lamont was to show that the evidence was not know that State did the officers product illegal not of the search. that involved the vehicle was the driver of Sun, Wong supra 83 S.Ct. only after their It in the accident. Thus, prove the State must the state- out Lamont was in- they find entry did by testimony ments made Lamont or the previ- As we have in the accident. volved describing of the officers Lamont’s motel stated, must review the fact ously we “by exploitation [the room did not come of “at the time of the the officers known to by illegality or instead means suffi- initial] discovered.” entry, subsequently as not distinguishable purged ciently ¶23. the two Meyer, supra, at Since primary taint.” Id. constitutionally impermissi- were searches ble, and statements all evidence seized Here, the statements made freely given should made that were not Lamont and the officers’ observations of The statements made suppressed. also be motel room Lamont’s are direct testimony by the offi- by Lamont and the consequence illegal natural search. La- observed inside cers what It not matter that Lamont does received should be inadmissible as mont’s home warnings can warnings Miranda as poisonous Wong “fruit tree.” Sun only a Fifth defect. cure Amendment States, 471, 484, Illinois, 371 U.S. v. United Brown v. U.S. 95 S.Ct. (1975); In order S.Ct. 9 L.Ed.2d State Cf. (S.D.1985) Habbena, result, upon it incumbent 372 N.W.2d 450 to avoid such a is court officers vick stated that the "needed to quickly possible precisely act as as ascer L.Ed.2d 732. tain defendant’s blood alcohol level before Moreover, surrounding the factual scenario dissipated ... and decision evidence that our search of Lamont’s home is distin second is a limited one based on the facts of this case, guishable from Storvick. In this case.” N.W.2d at 61. This case specific from their command had directions of "limited” where Court circumstances this to secure the area and wait for a officer Stoivick, should follow as the initial blood lest majority search warrant. The claims dispute, in this case is not in no evidence as being lights being turned off and door presented dissipation of blood changed locked so the circumstances levels, trial never alcohol and as the court quickly. majority, how had to act do, however, ruled in a manner. We such ever, Lamont's fails mention that vehicle agree majority’s with the to Storvick citation towed, therefore, giving already La had been expectation privacy to the that "the of extent escape. It also mont little access for should that one has in residence is the core one’s pointed perma out that this was Lamont’s expectation protected by interest means to flee and no nent home. With no Fourth Amendment and we are and will be support place refuge only position to find finding exigent hesitant in circumstances for have a war should waited for dwellings.” warrantless entries of 428 is rant. Another distinction from Storvick term, recently N.W.2d at 61. As as last testimony presented that in this case no Court, Supreme per United States Justice police were concerned to the trial court that Scalia, invalidating wrote in a search as un dissipation about of Lamont’s blood alcohol very constitutional: "At the core of the hearing suppression level. At both re right Fourth Amendment stands the of man to sponding sole rea officers testified that their retreat into his own home and be free from entering son for Lamont’s home without a governmental Kyllo unreasonable intrusion.” anyone States, - U.S. -, -, warrant is to see if was in need of v. 121 S.Ct. United -, 94, medical attention. For reasons discussed ear 150 Lamont’s L.Ed.2d lier, ground. rejected the trial expectation privacy worthy court this core is of majority’s protection facts defeat no matter dismissal of these Fourth Amendment might personally. analogous comparison what we think of him to Storvick. The Stor-

621 California, felony Schmerber v. arrests. search (holding subsequently that a issued 1826, 16 thus, 757, L.Ed.2d 908 384 U.S. 86 S.Ct. source independent was an warrant Neville, (1966); Dakota v. see also South apply). rule did not Be- exclusionary 916, 553, 748 459 103 S.Ct. 74 L.Ed.2d prove that U.S. the State has failed cause showing had been made the officers’ ob- Where statements or Lamont’s for is of the an inde- that the substance searched procured servations were non-illegal may quickly dissipate character some other source or pendent connection, required. See State v. made warrant is all statements causal 899; Buchholz, observations of 1999 SD 598 N.W.2d and the officers’ Lamont Hanson, 9, 588 1999 SD N.W.2d suppressed. home to be See State Lamont’s are States, incriminating The detection of evi Murray 885. v. United (1987). dence, purposes, Fourth Amendment L.Ed.2d 472 for against permits Lamont such intrusion. the evidence used Since through “independent not obtained Our cases have not allowed con- [¶ 63.] source,” exclusionary applies rules permission tinued to conduct investiga- that its prove the State failed multiple purposes tests for the blood “sufficiently purged [ ] tion to be only. Allowing one test is extrapolation Sun, primary Wong supra. taint.” Fourth Amendment reasonable under the necessary gath- if it can for the be shown Blood Draw Issue 3. Second may quickly ering evidence which dissi- held that the two The trial court [¶ 60.] intrusion, Any the initial pate. more than from La- separate samples blood taken however, justified independent must be permissible under the search mont were Almond, 511 N.W.2d at 575 grounds. exception lawful arrest incident to (holding probable there was while requirement. warrant defendant, no cause to detain there was independent justification further to search parties agree Both that Lamont defendant). independent Because consent to the blood tests. Thus did not by the has not been identified ground of a non-consensual search our review second, State, authority there is no for a subject Fourth Amendment to traditional fourth, ¶ Id. sample. third or etc. blood Meyer, 122 at analysis. 1998 SD Benallie, 724; N.W.2d at State v. SD always This Court has allowed ¶ Meaning, 570 N.W.2d opine introduced to extrapolation to be of the search of propriety we review level at the time of as to the blood alcohol law, question sub Lamont’s blood as McDonald, stop or whenever. State supra at ject Himing, to de novo review. Fode, (S.D.1988); State v. N.W.2d (S.D.1990). Here, ¶ 9. po- sample lice wanted a second of Lamont’s long have held that a blood [¶ 62.] We strength- than to incident blood for no other reason may required test as search temporal of types aspect en its case.8 While the following to lawful arrest certain seq. impli- §§ important et The statutes that did 32-23-1 It is to note singular rely cate blood draws are written in the on the search incident to lawful ar- by "the” Simply put, evidenced the use of article exception. there is no au- rest singular coupled use the noun. thority allowing with the a second test. Our review of State, majority, point "the” The nor can the South Dakota Codified Laws allows statute, taking of multi- analysis” allows for the of blood which "withdrawal” “chemical such, samples. we ple tests or As will not determining a DUI offense. See SDCL for time, specific an hour’s it is the more commands of the war- only involves this case justi clause”). that it is the important through- to remember prosecution rant underlying rationale for allow fication and prove one blood test could the element of governs Fourth ing blood tests “legal A second test is not drunkenness.” analysis. The “reasonable Amendment necessary. only the intrusion is examined ness” of Therefore, I respectfully dis- justification requisite legal for after sent.

the initial intrusion itself is satisfied. States Dist. Court United States United Mich., Dist. Eastern 2125, 2136-37, 315-18, 92 32 L.Ed.2d S.Ct. (1972) (“Though the Fourth Amend broadly of speaks

ment ‘unreasonable seizures,’ the definition of searches turns, part, at least in ‘reasonableness’ practice condone such a not authorized statute.

Case Details

Case Name: State v. Lamont

Court Name: South Dakota Supreme Court

Date Published: Jul 11, 2001

Citation: 631 N.W.2d 603

Docket Number: None

Court Abbreviation: S.D.