text:
    2001 ND 132
    STATE of North Dakota, Plaintiff and Appellee, v. Daniel Linton MILLER, Defendant and Appellant.
    No. 20000337.
    Supreme Court of North Dakota.
    July 20, 2001.

      Tory J. Langemo (argued), Senior Legal Intern, Sonja Clapp (appeared), Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.
    Loretta J. Walberg (argued), Grand Forks, MN, for defendant and appellant.
    Thomas J. Kuchera (on brief), Grand Forks, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Daniel Miller appealed from a criminal judgment entered upon a jury verdict finding him guilty of gross sexual imposition. We affirm, concluding (1) the trial court did not abuse its discretion or violate Miller’s right to present a defense when it excluded evidence and (2) a minor reconfiguration of the courtroom to accommodate the child victim’s testimony was not obvious error.

I

[¶ 2] Between December 1998 and March 1999, Miller lived with his sister R.A. (“Rhonda,” a pseudonym) and her family in their home on the Grand Forks Air Force Base. Miller then moved out of their home and eventually returned to his home state of Washington.

[¶ 3] In April 2000, Rhonda was contacted by school authorities regarding sexually inappropriate conduct at school by her first-grade daughter, A.R. (“Ann”). When Ann returned home from school, Rhonda and M.A. (“Mike”), Ann’s stepfather, questioned her about the incident and asked if anyone had ever been inappropriate with her. Ann eventually revealed that Miller had “peed” on her on several occasions in the bathroom and basement of the family’s home while he was living there. Rhonda contacted a child psychologist, and the matter was investigated by military officials, the county sheriffs department, and a social worker. In interviews, Ann related that Miller had on several occasions masturbated on her at the family’s home on the base.

[¶ 4] Miller was charged with gross sexual imposition. The jury found him guilty, and Miller appealed from the criminal judgment.

II

[¶ 5] Miller asserts the trial court erred in excluding evidence of a dream Ann had about another male relative, and in excluding evidence of an abuse and neglect report filed against Rhonda and Mike.

[¶ 6] The trial court has broad discretion over evidentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abuses that discretion. State v. Erickstad, 2000 ND 202, ¶ 34, 620 N.W.2d 136; State v. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Erickstad, at ¶ 34; State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524.

A

[¶ 7] Miller argues the trial court erred in excluding evidence of a dream Ann had about another male relative, Jamie. The dream came to light through a note in Ann’s school file written by her first grade teacher, Kristin Spradlin. The note, dated April 17, 2000, says, in pertinent part:

Pam Beck [another teacher] shared a conversation she overheard between [Ann] and [another student] on 4-14-00. Also stated [Ann] came in crying and just wanted to leave to be with Mom.
[Ann] was sharing that she had a bad dream about Jamie (Mom’s old boyfriend) and that he would make her go downstairs and wear this necklace. She stated she was very scared because he said the wolves would come get her.

[¶ 8] The State filed a motion in limine to exclude this evidence because it was hearsay. At the beginning of the trial, the court ruled the April 17, 2000 note was hearsay and would be excluded.

[¶ 9] The note presents multiple levels of hearsay. There is Ann’s out-of-court statement overheard by Beck, Beck’s statement to Spradlin, and Spradlin’s written note. Each of these constitutes a separate level of hearsay, and Miller would have to establish an exception for each level of hearsay for it to be admissible under the rules of evidence. See N.D.R.Ev. 805; State v. Lefthand, 523 N.W.2d 63, 68 (N.D.1994).

[¶ 10] On appeal, Miller concedes this evidence is hearsay but argues that, under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), exclusion of the evidence violates his constitutional right to present a defense. Miller argues that, under Chambers, a defendant’s due process right to present evidence in his behalf may “trump” state evidentiary rules, including the hearsay rule.

[¶ 11] Chambers presented a clearly distinguishable factual scenario. Chambers had been charged with killing a police officer. Another man, "McDonald, shortly after the shooting told several people that he had killed the officer, and he eventually gave a signed, sworn confession to the murder to Chambers’s attorneys. However, McDonald subsequently recanted his confession. Because Mississippi still adhered to the “voucher rule,” whereby a party could not repudiate his own witness, Chambers was not allowed to call McDonald to the stand and cross-examine him about his prior confessions. Furthermore, because Mississippi’s version of the hearsay rule did not provide an exception for statements against penal interest, Chambers was also prevented from calling third parties to testify they had heard McDonald admit he had killed the officer. Chambers was allowed to introduce McDonald’s written confession but, when McDonald testified he had not killed the officer and had confessed in an attempt to share in a civil lawsuit against the city, Chambers was not allowed to question him about his confessions to other persons.

[¶ 12] On these facts, the United States Supreme Court held that, where the “testimony ... was critical to Chambers’ defense” and “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302, 93 S.Ct. 1038. The Court pointed out, however, that it was not establishing any new rule of law, and indicated that its holding was limited to the facts of that case. Id. at 302-03, 93 S.Ct. 1038. In Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), under similar circumstances, the Court in a per curiam opinion followed Chambers and again held evidence of another person’s confession which would have exonerated the defendant should have been admitted.

[¶ 13] Chambers does not create a broad rule that the right to present a defense “trumps” well-developed, longstanding rules of evidence which are designed to insure that only reliable, trustworthy evidence is presented to the finder of fact. The Court in Chambers cautioned that its holding was based upon the unique facts and circumstances presented in that case. More significantly, the United States Supreme Court in subsequent decisions has strictly limited Chambers to its unique facts. See United States v. Scheffer, 523 U.S. 303, 316, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); Montana v. Egelhoff 518 U.S. 37, 52-53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion). The Egelhojf Court labeled Chambers “an exercise in highly case-specific error correction.” Egelhoff, at 52, 116 S.Ct 2013. The Court in Scheffer concluded that “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,” and “Much rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” Scheffer, at 308, 118 S.Ct. 1261 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)); see also State v. Flohr, 301 N.W.2d 367, 371 (N.D.1980) (“A defendant’s right to present evidence on his own behalf ... is not a right to confound otherwise reasonable rules of procedure aimed at ascertaining the truth and accomplishing justice.”)- The United States Supreme Court has recognized that “Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.” Scheffer, at 316, 118 S.Ct. 1261.

[¶ 14] The evidence sought to be admitted in this case does not fall into the same category as that excluded in Chambers and Green. In each of those cases, the excluded evidence was a confession to the crime by someone else. In this case, the evidence is a child’s recollection of a dream. Even if accepted as true, the evidence about Ann’s dream contains no specific sexual content, does not directly refute any of the State’s evidence against Miller, and is, at best, marginally relevant. Miller’s assertion that this evidence was highly reliable and critical to his defense is unsupportable.

[¶ 16] Furthermore, Miller has mis-characterized the extent of the trial court’s ruling in this case. Miller argues the trial court excluded all evidence about the dream. The record, however, clearly shows the trial court specifically excluded only the school note, and expressly left open the possibility of admission of evidence about the dream in another manner:

With regard to testimony about dreams the minor may have had after the alleged incident, if this is being offered through someone other than the minor child, it is certainly hearsay. If and when counsel intend to offer testimony through the minor child as to what dreams she might have had which they feel may be relevant, I intend to afford counsel the opportunity at that time to make an offer of proof outside the hearing of the jury at that juncture in trial. Therefore, further determination on the dream issue will be deferred until then. The April 17, 2000, note is excluded as hearsay.

Thus, the trial court did not exclude all evidence regarding the dream Ann had about Jamie. Miller did not attempt to elicit testimony about the dream through any witness or make an offer of proof.

[¶ 16] Under the circumstances of this case, we conclude the trial court’s exclusion of the evidence was not an abuse of discretion and did not violate the defendant’s constitutional right to present a defense.

B

[¶ 17] Miller contends the trial court erred in excluding a report of suspected child abuse and neglect which had been filed by a neighbor against Rhonda and Mike in September, 2000. The report alleged the home and the children were dirty, the parents drank and smoked “a lot,” the children were sometimes locked in their rooms when they got into trouble, and Ann on one occasion unexpectedly walked into the parents’ bedroom and saw Mike masturbating. After an investigation by authorities, the allegations in the report were found to be baseless.

[¶ 18] The only allegation in the report which has any relevance whatsoever to the present case is the masturbation incident involving Ann’s stepfather, Mike. However, other evidence was admitted establishing this incident. In his testimony, Mike explained the incident and admitted it had occurred. Thus, any probative value of the evidence of this incident in the abuse and neglect report would have been purely cumulative.

[¶ 19] Under N.D.R.Ev. 103, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected. State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205; State v. Trotter, 524 N.W.2d 601, 602 (N.D.1994). A trial court does not abuse its discretion when it excludes evidence which would have been merely cumulative of abundant other evidence establishing a fact. See Osier, at ¶¶ 14-16. In this case, the report was merely cumulative of other evidence in the record and the trial court did not abuse its discretion in excluding it.

Ill

[¶ 20] Miller contends the trial court committed obvious error when it allowed Ann to testify without directly facing Miller. Miller argues his constitutional right to confrontation was violated by this procedure.

[¶ 21] Ann was the first witness to testify on the second day of trial. Miller’s attorney asserts on appeal that, when she entered the courtroom after the overnight break, the courtroom had been reconfigured with two small chairs placed near the jury. Before Ann testified, the court twice asked counsel if there was anything they wanted to put on the record before the jury was brought in. Miller did not object to the reconfiguration of the courtroom. Ann testified while seated in one of the chairs, and the prosecutor sat in the other chair. When Miller’s attorney cross-examined Ann, she also sat in the other chair.

[¶ 22] Miller never objected to this procedure. At the end of Ann’s testimony, Miller’s attorney asked the court to note for the record the procedure which had been employed:

MS. WALBERG: Your Honor, could we have the record reflect the procedures that were used for this witness to testify.
THE COURT: Why don’t you articulate what you would like to be reflected.
MS. WALBERG: I would like the record to reflect the child did not face the Defendant. That the child was facing the jury seated on a chair facing Miss Clapp [the prosecutor] during the testimony. That the child did not testify with the microphone so some of the testimony was difficult to hear. Even I had trouble hearing it. And that we were not advised of these procedures prior to her testimony. Thank you.

[¶ 23] On appeal, Miller argues this procedure violated his rights under the confrontation clause; the trial court should have held a hearing in accordance with Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), before adopting special procedures for the child’s testimony; and the trial court should have given an instruction cautioning the jury not to infer guilt from use of these procedures.

[¶24] When a problem arises during a trial, the party affected must bring the irregularity to the trial court’s attention and seek appropriate remedial action. State v. Wilson, 1999 ND 34, ¶ 14, 590 N.W.2d 202. Generally, issues not raised below, even constitutional issues, will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). Berlin v. State, 2000 ND 13, ¶ 20, 604 N.W.2d 437; State v. Mertz, 514 N.W.2d 662, 670 (N.D.1994). Similarly, when a defendant fails to specifically request an instruction or object to omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the court’s failure to instruct the jury on the issue was obvious error affecting substantial rights. State v. Glass, 2000 ND 212, ¶ 19, 620 N.W.2d 146; State v. Erickstad, 2000 ND 202, ¶ 18, 620 N.W.2d 136.

[¶ 25] We exercise our power to consider obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice. Glass, 2000 ND 212, ¶ 11, 620 N.W.2d 146; Erickstad, 2000 ND 202, ¶ 21, 620 N.W.2d 136. We have very rarely found obvious error under N.D.R.App.P. 52(b). Erickstad, at ¶ 21; State v. Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173. In order to establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights. Glass, at ¶ 11; State v. Burke, 2000 ND 25, ¶ 16, 606 N.W.2d 108. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law. Erickstad, at ¶ 22; State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. Even if the defendant meets the burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within the discretion of the appellate court, and the court should exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Erickstad, at ¶ 22; Olander, at ¶ 16.

[¶ 26] In reviewing for obvious error in this case, we initially note the record does not provide a precise description of how the courtroom was configured for Ann’s testimony. The record reflects only that “the child did not face the Defendant” and “was facing the jury seated on a chair facing Miss Clapp during the testimony.” From this record, we do not know whether Ann had her back to Miller, was perpendicular to him, or was seated at some other angle. When raising a Confrontation Clause challenge, the defendant bears the burden of creating a clear record of the configuration of the courtroom. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534, 538 (2000) (Brown, J., concurring); State v. Hoyt, 806 P.2d 204, 209 (Utah Ct.App.1991). As this Court noted in Zarak v. Hjelle, 156 N.W.2d 815, 816 (N.D.1968), error is never presumed on appeal but must be affirmatively shown by the record, and the burden of so showing is on the party alleging error.

[¶ 27] Miller alleges obvious error in this case because he was not allowed to confront Ann “face-to-face” when she testified. The United States Supreme Court has concluded that the Confrontation Clause does not compel a witness “to fix his eyes upon the defendant.” Coy v. Iowa, 487 U.S. 1012, 1019, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Numerous courts have held that, as long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, as by a screen or two-way mirror, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant. See, e.g., Brandon v. State, 839 P.2d 400, 409-10 (Alaska Ct.App.1992); Smith, 8 S.W.3d at 537-38; People v. Sharp, 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117, 122-26 (1994), disapproved of on other grounds by People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037, 1048 (1995); Ortiz v. State, 188 Ga.App. 532, 374 S.E.2d 92, 95-96 (1988); Stanger v. State, 545 N.E.2d 1105, 1112-13 (Ind.Ct.App.1989), overruled in part on other grounds by Smith v. State, 689 N.E.2d 1238, 1246-47 n. 11 (Ind.1997); State v. Brockel, 733 So.2d 640, 644-46 (La.Ct.App.1999); People v. Tuck, 147 A.D.2d 899, 537 N.Y.S.2d 355, 356 (1989); Hoyt, 806 P.2d at 209-10; see also Bruce E. Bohlman, The High Cost of Constitutional Rights in Child Abuse Cases — Is the Price Worih Paying?, 66 N.D.L.Rev. 579, 589 (1990) (suggesting this “technique of directional deviation” is the least restrictive means available to protect both the witness and the defendant’s right to a fair trial).

[¶ 28] Miller has failed to cite a single case holding that a reconfiguration of the courtroom which does not physically obstruct the defendant and witness’s view of each other violates the Confrontation Clause, requires a Craig hearing, or requires a cautionary instruction. Under these circumstances, Miller has failed to demonstrate that the procedure employed in this case constituted a clear deviation from an applicable legal rule under current law. See Erickstad, 2000 ND 202, ¶ 22, 620 N.W.2d 136; Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. On the record in this case, there is no obvious error.

[¶ 29] The judgment of conviction is affirmed.

[¶ 30] GERALD W. VANDE WALLE, C. J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . The note erroneously refers to Jamie as Rhonda’s old boyfriend. The record indicates Jamie is actually the husband of Rhonda’s niece.

      . The record does not reveal that Miller raised this argument to the trial court.

      . When a deviation from the traditional courtroom configuration is sought to accommodate a witness, the preferable procedure would be to notify opposing counsel in advance and allow an opportunity for an objection. Although the trial court has broad discretion to control the mode of interrogating witnesses, see N.D.R.Ev. 611(a), standard courtroom configuration is usually set by tradition or rule. See N.D.R.Ct. 10.1(b)(2) (all statements by counsel to the court will be made from counsel table). Although when the deviation from the normal configuration is minor it may not warrant a full Craig hearing, providing notice will preserve the record and allow an opportunity for objection. We are satisfied that, in this case, Miller had ample opportunity to object to the reconfiguration before Ann testified but failed to do so.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 133
    STATE of North Dakota, Petitioner, v. The Honorable Robert W. HOLTE, Judge of the District Court, Northwest Judicial District, and Larry Dvorak, Respondents.
    No. 20010029.
    Supreme Court of North Dakota.
    July 20, 2001.

      Rozanna Christine Larson, Assistant State’s Attorney, Minot, ND, for petitioner.
    Richard B. Thomas, Minot, ND, for respondent Larry Dvorak.
   VANDE WALLE, Chief Justice.

[¶ 1] The State petitioned this Court for a supervisory writ directing the trial court to vacate the part of a pretrial order holding it will instruct a jury that “willful” is the culpability requirement in a criminal prosecution under N.D.C.C. § 14-07.1-06 for violating a domestic violence protection order issued under N.D.C.C. § 14-07.1-02. We conclude this is an appropriate case to exercise our supervisory jurisdiction, and we grant the writ.

I

[¶ 2] On May 2, 1997, the Dunn County District Court issued a domestic violence protection order prohibiting Larry H. Dvorak from having any contact with his ex-wife, Irene Howard. The order, which was effective for two years, also prohibited Dvorak from having any contact with, the parties’ three minor children, except under limited circumstances:

Larry H. Dvorak may call the Plaintiffs residence for the sole purpose of telephone visitation with the minor children of the parties but only on Wednesday evenings between the hours of 6:00 o’clock P.M. and 7:00 o’clock P.M., Mountain Time, and absolutely at no other time or for any other purpose.

[¶ 3] In March 1998, Dvorak pleaded guilty in Ward County District Court to violating the protection order. He was subsequently found guilty in Stark County District Court of again violating the protection order. See State v. Dvorak, 2000 ND 6, 604 N.W.2d 445. In June 1999, Dvorak was charged with class C felony violation of the protection order in Ward County. The criminal information alleged that in April 1999, Dvorak violated the part of the protection order “restraining him from having any contact with his minor children except by telephone Wednesday evenings from 6:00 p.m. to 7:00 p.m. MST[,] and he called them after 8:00 p.m.”

[¶ 4] Before Dvorak’s scheduled jury trial, Dvorak requested a jury instruction requiring that, to convict him, the jury must find he “willfully” violated the order. The State argued violation of a domestic violence protection order under N.D.C.C. § 14-07.1-06 is a strict liability offense for which there is no “willful” culpability requirement. Relying on N.D.C.C. § 14-07.1-13(4) and cases from other jurisdictions, the trial court ruled “ ‘willfulness’ is the culpability required for the violation of a domestic violence protection order,” and the court would so instruct the jury. The State obtained a continuance and petitioned for a supervisory writ from this Court directing the trial court to vacate that part of its pretrial order.

II

[¶ 5] This Court’s authority to issue supervisory writs under N.D. Const, art. VI, § 2, and N.D.C.C. § 27-02-04, is a discretionary authority we exercise on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. State v. Haskell, 2001 ND 14, ¶ 4, 621 N.W.2d 358; State ex rel. Heitkamp v. Hagerty, 1998 ND 122, ¶ 6, 580 N.W.2d 139. We generally will not exercise supervisory jurisdiction where the proper remedy is an appeal. Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289.

[¶ 6] This case is extraordinary because, for all practical purposes, there is little likelihood the issue could or would be raised in a direct appeal following the trial. If Dvorak were found not guilty by the jury, the State could not appeal. See City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D.1994); City of Dickinson v. Kraft, 472 N.W.2d 441, 443 (N.D.1991); State v. Bettenhausen, 460 N.W.2d 394, 395 (N.D.1990); State v. Flohr, 259 N.W.2d 293, 296 (N.D.1977). If Dvorak were found guilty by the jury, he obviously would not raise the issue in a direct appeal. Although it might be possible for the State to raise the issue if Dvorak appealed and challenged the sufficiency of the evidence, see State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827, that possibility is remote at best. We conclude the State has no adequate alternative remedy, and because the trial court erred, we further conclude this is an appropriate case to exercise our supervisory jurisdiction. See State ex rel. Jorgenson v. District Court, 289 N.W.2d 211, 213-16 (N.D.1980).

Ill

[¶ 7] Dvorak is charged with violating a domestic violence protection order under N.D.C.C. § 14-07.1-06, which provided at the time:

Whenever a protection order is granted pursuant to section 14-07.1-02 or 14-07.1-03 and the respondent or person to be restrained has been served a copy of the order, a violation of the order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of a protection order is a class C felony subject to the penalties therefor.

[¶ 8] There is no ambiguity in this statute. Section 14-07.1-06, N.D.C.C., does not specify a culpability level. Although N.D.C.C. § 12.1-02-02(2) provides “[i]f a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully,” this Court has held N.D.C.C. § 12.1-02-02(2) applies only to Title 12.1, and the willful culpability level will not be read into other chapters unless the Legislature has specifically so stated. See, e.g., State v. Glass, 2000 ND 212, ¶ 17, 620 N.W.2d 146; State v. Eldred, 1997 ND 112, ¶ 31, 564 N.W.2d 283.

[¶ 9] Section 14-07.1-13(4), N.D.C.C., contains a “willful” culpability requirement for violating a court order issued under that section, and N.D.C.C. § 14-07.1-01(7) dictates that “willfully” means the same as the term is defined in N.D.C.C. § 12.1-02-02. But N.D.C.C. § 14-07.1-13 allows a court, in cases where there is no outstanding protection order prohibiting contact, to issue a temporary order prohibiting a person charged with or arrested for a crime involving domestic violence who is released from custody before trial from contacting the victim. Section 14-07.1-06, N.D.C.C., proscribing violation of an outstanding protection order, is a distinct crime. The legislative history behind these statutes sheds no light on the Legislature’s reasons for requiring culpability under N.D.C.C. § 14-07.1-13, and not requiring culpability under N.D.C.C. § 14-07.1-06, but plausible reasons can be conceived for differentiating between the two crimes. The trial court’s reliance on the cases from other jurisdictions is unpersuasive because they are based on statutory provisions that differ from N.D.C.C. § 14-07.1-06.

[¶ 10] The Legislature has the authority to enact strict liability offenses which require no intent, see City of Dickinson v. Gresz, 450 N.W.2d 216, 220 (N.D.1989), and strict liability statutes in criminal law do not invariably violate constitutional requirements. See State v. Vogel, 467 N.W.2d 86, 90 (N.D.1991); State v. Olson, 356 N.W.2d 110, 112 (N.D.1984). Because N.D.C.C. § 14-07.1-06 does not specify a culpability requirement, we conclude it is a strict liability offense for which no proof of intent is required. The trial court erred in ruling the State has to prove Dvorak “willfully” violated the protection order and in proposing to so instruct the jury.

rv

[¶ 11] Strict liability offenses have a “generally disfavored status.” State v. Carpenter, 301 N.W.2d 106, 111 (N.D.1980). A statute establishing a strict liability offense does not always preclude affirmative defenses. Eldred, at ¶ 30. This Court has permitted affirmative defenses to strict liability offenses when public policy factors support the defense. See State v. Rasmussen, 524 N.W.2d 843, 845 (N.D.1994); see also Olson, at 113. We also have permitted an affirmative defense to a strict liability offense as “a logical accommodation which recognizes the reasons for both the legislative designation of the crimes as strict liability offenses and the constitutional interests of the accused.” State v. Michlitsch, 438 N.W.2d 175, 178 (N.D.1989).

[¶ 12] In Michlitsch, at 178, we recognized there may be some difficulty sustaining the constitutionality of the then strict-liability-offense of possession of a controlled substance, often punishable as a felony, against a challenge by a person who possessed the controlled substance unwittingly. Choosing a construction of the statute that would not be of questionable constitutionality, we held:

[I]t is an affirmative defense to a charge of possession of a controlled substance or possession with intent to deliver that the defendant unwittingly or unknowingly possessed the controlled substance. The defendant has the burden of proving this affirmative defense by a preponderance of the evidence. Section 12.1-01-03(3), N.D.C.C.; see also State v. Rehling, 426 N.W.2d 6, 7 (N.D.1988). Because guilty knowledge is not an essential element of either offense, the State is not required to prove the nonexistence of this defense beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); State v. Pfister, 264 N.W.2d 694, 699-700 (N.D.1978).

Michlitsch, at 178 (Footnote omitted); see also State v. Brandner, 551 N.W.2d 284, 287 (N.D.1996) (holding Michlitsch affirmative defense of unwitting and unknowing possession applies to strict liability offense of possessing illegal fish traps).

[¶ 13] It is possible for a person to be convicted of the strict liability offense of violating a domestic violence protection order under N.D.C.C. § 14-07.1-06 based on innocent or mistaken conduct. See State v. Dvorak, 2000 ND 6, ¶ 29, 604 N.W.2d 445 (holding appellant could not attack constitutionality of N.D.C.C. § 14-07.1-06 unless he claimed his acts were innocent or mistaken). Such a construction of the statute would make its constitutional validity questionable, and we hold that a Michlitsch-type affirmative defense instruction may be given under appropriate circumstances in a prosecution for violation of a domestic violence protection order under N.D.C.C. § 14-07.1-06. As we noted in Michlitsch, at 179, the defendant must request the affirmative defense instruction and the instruction may only be given if there is evidence to support it. The defendant has the burden of proving the affirmative defense by a preponderance of the evidence, and the State is not required to prove the nonexistence of the defense beyond a reasonable doubt. Id. at 178.

V

[¶ 14] We exercise our supervisory authority and direct the trial court to vacate that part of its pretrial order holding “willful” is the culpability requirement for violating a domestic violence protection order under N.D.C.C. § 14-07.1-06 and approving a jury instruction to that effect.

[¶ 15] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

      . Section 14-07.1-06, N.D.C.C., was amended by the Legislature in 1999 to include language proscribing violation of a foreign protection order. See 1999 N.D. Sess. Laws ch. 138, § 2.


author: AMUNDSON, Justice

text:
    2001 SD 85
    In the Matter of the ESTATE OF Ervin ROEHR, Deceased.
    No. 21749.
    Supreme Court of South Dakota.
    Considered on Briefs on May 29, 2001.
    Decided July 3, 2001.

      Leon J. Vander Linden of Delaney, Van-der Linden and Delaney, Webster, SD, for appellee Don Roehr.
    Danny R. Smeins, Webster, SD, for appellant Dennis Roehr and Joan Dresch.
   AMUNDSON, Justice

[¶ 1.] Contestants, heirs of the estate of their father, Ervin Roehr, appeal the trial court’s determination that certain land inherited from Ervin’s father was owned property pursuant to SDCL 29A-3-101, and subject to an option to purchase in Ervin’s will. We affirm.

FACTS

[¶ 2.] In June of 1974, Ervin Roehr drafted a will. Even though Ervin made no changes to this draft, he did not sign the will until March 11, 1975. Ervin’s will provided for an option to his son Don to buy “land I now own” at the price of $100 per acre. In a subsequent clause, Ervin’s will also provided that any land hereinafter acquired would be divided among all three children: Dennis, Don, and Joan Dresch.

[¶ 3.] On November 11, 1974, Louis F. Roehr, Ervin’s father, died leaving the land subject to this appeal to Ervin. Er-vin died on February 2, 1999. This probate contest soon followed. The issue before the trial court was whether the land devised to Ervin from Louis was “land I now own” by Ervin, and covered by the “option” portion of Ervin’s will. The trial court held that the “land I now own” included the land Ervin received from his father, Louis pursuant to SDCL 29A-3-101. Contestants, Dennis Roehr and Joan Dresch appeal raising the following issue:

Whether Ervin’s will, allowing for Don Roehr the right to purchase “now owned land” applies to the land devised from Louis to Ervin.

STANDARD OF REVIEW

[¶ 4.] This Court reviews a trial court’s findings of fact under the “clearly erroneous” standard and overturns a trial court’s conclusions of law only when the trial court erred as a matter of law. In re Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139 (citing Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 864 (S.D.1993)). “The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.” Id. (citations omitted). “This Court interprets statutes under a de novo standard of review without deference to the decision of the trial court.” In re Estate of Jetter, 1997 SD 125, ¶ 10, 570 N.W.2d 26, 28.

DECISION

[¶ 5.] It is uncontroverted that Ervin drafted his will in June of 1974, but had not signed the document until March of 1975. It is well settled that a will is not valid until properly executed, including the signing by the testator. SDCL 29A-2-502 (b)(2). Thus, the will signed by Ervin had no force and effect until signed in March of 1975. Therefore, the June 1974 date is irrelevant to the disposition of this case.

[¶ 6.] The disposition of this case depends on our interpretation of SDCL 29A-8-101. SDCL 29A-3-101 provides:

The power of a person to leave property by will, and the rights of creditors, devi-sees, and heirs to the person’s property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, that person’s real and personal property devolves to the persons to whom it is devised by will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, rights of creditors, elective share of the surviving spouse, and administration.

The trial court, in its Findings of Fact and Conclusions of Law, states that SDCL 29A-3-101 makes it clear that Louis’ property automatically vested in Ervin at the time of Louis’ death on November, 11, 1974, subject only to the probate of the estate. The trial court was correct in its interpretation and effect of SDCL 29A-3-101. The statute states that “real and personal property devolves to the persons to whom it is devised by will.” The term “devolve” is defined as “[t]o pass or to be transferred from one person to another; to fall on, or accrue to, one person as the successor of another; as a title, right office or liability.” Black’s Law Dictionary 453 (6th ed.1990).

[¶ 7.] Contestants concede that the property devised by Louis to Ervin vested on November 11, 1975 pursuant to SDCL 29A-3-101. See also Estate of Hafferman, 442 N.W.2d 238 (S.D.1989); Estate of Lingscheit, 387 N.W.2d 738 (S.D.1986). Contestants, however, argue that Ervin did not legally or technically “own” the property devised by his father Louis until January 29, 1976, the date of final distribution of Louis’ estate. Contestants claim that legal title did not pass to Ervin until that time. As such, Contestants argue that because Ervin signed the will without having legal title of the devised land, the land inherited by Ervin is not subject to Don’s option to buy at $100 per acre, rather, the land should be divided equally among the three children.

[¶ 8.] Although South Dakota adopted the UPC in 1995, this Court, prior to its adoption, has held, “upon the death of the testator the devisee becomes vested with the same right to, and interest in, the devised property that was possessed by the testator, at the time of his death[.]” Hicks v. Skie, 67 S.D. 115, 289 N.W. 507, 508 (S.D.1939). “On death of the testator, title to real property devised in a will becomes vested in the devisee subject to control of the county court and possession of executor during administration.” In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 780, 783 (S.D.1966). “Upon the death of the testator and even before the probate of the will, the general rule is that title to realty vests in the devisee.” Bollinger v. Eldredge, 524 N.W.2d 118, 123 (S.D.1994). The UPC is consistent with this general rule and Contestants have not cited any authority contrary to this position.

[¶ 9.] We have stated on numerous occasions that the intent of the testator is the primary objective to interpreting a will. Estate of Klauzer, 2000 SD 7, 604 N.W.2d 474. “Our goal in interpreting a will is to discern the testator’s intent. If intent is clear from the language used, that intent controls.” Klauzer, 2000 SD 7, ¶ 9, 604 N.W.2d at 477. The testator’s intent does not depend on the legal nuances of probate distribution and the legal passing of title. Rather, our inquiry is “limited to what [Ervin] meant by what he said, not what we think [Ervin] meant to say.” Id.

[¶ 10.] At the probate contest, the trial court heard testimony from three witnesses who testified as to Ervin’s intent to allow this land to be subject to Don’s right to purchase at $100 per acre. Although extrinsic evidence is admissible to clarify any ambiguity, “an ambiguity is not of itself created simply because the parties differ as to the interpretation of the will.” Klauzer, 2000 SD 7, ¶ 10, 604 N.W.2d at 477 (quoting City of Watertown v. Dakota, Minnesota & Eastern RR Co., 1996 SD 82, ¶ 21, 551 N.W.2d 571, 576). The plain and unambiguous language of the will does not warrant outside testimony in order for the court to determine Ervin’s intent. “We determine that the testator’s intent is clearly expressed within the four corners of the document. We are bound by the unambiguous language of the will. Therefore, extrinsic evidence is not needed.” Klauzer, 2000 SD 7, ¶ 14, 604 N.W.2d at 478. While it may have been error for the trial court to consider such testimony, the record supports the court’s ultimate determination that the land inherited by Ervin was “land I now own at the time he executed his will.

[¶ 11.] We affirm.

[¶ 12.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

       The bequest to the children was, however, subject to the mother's life estate interest in the property. No one disputes this portion of the will.


author: AMUNDSON, Justice, KONENKAMP, Justice, SABERS, Justice AMUNDSON, Justice

text:
    2001 SD 92
    STATE of South Dakota, Plaintiff and Appellee, v. Jerry A. LAMONT, Defendant and Appellant.
    No. 21189.
    Supreme Court of South Dakota.
    Argued Oct. 24, 2000.
    Decided July 11, 2001.

      Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Timothy J. Rensch, Rapid City, SD, Attorney for defendant and appellant.
   [¶ 1.] Justice Robert A. Amundson delivers the majority opinion of the Court on Issue 1, which holds that the trial court erred in refusing to admit evidence on the decedent’s blood alcohol level.

[¶ 2.] Justice John K. Konenkamp delivers the majority opinion of the Court on Issues 2 and 3, holding the search of Lamont’s dwelling was reasonable under the Fourth Amendment and the circuit court did not err when it allowed evidence of a second blood test.

AMUNDSON, Justice,

writing for the majority on Issue 1.

[¶ 3.] Jerry Lamont appeals his conviction for vehicular homicide and felony hit and run. We affirm Issues 2 and 3, reverse on Issue 1, and remand for a new trial.

FACTS

[¶ 4.] On May 2, 1999, Ronald Dean Hall was killed while riding his motorcycle in Rapid City, South Dakota. Mr. Hall was discovered lying beside the road by a passer-by shortly before he died. Due to white paint found on the motorcycle, the accident scene indicated that a white vehicle hit the victim. A witness also observed a small white vehicle flee the accident area. Based on the initial accident investigation, the police believed that another vehicle involved ran the stop sign and collided with Hall’s motorcycle.

[¶ 5.] While the investigation of the accident scene was proceeding, Officer Rud and Olson were dispatched to the Horseshoe Motel on an unrelated matter. Prior to this, they had received an all-points bulletin regarding the hit-and-run accident. Upon their arrival, Officer Rud noticed a white Ford Escort matching the description of the car described in the all-points bulletin. The Escort had a dented left front quarter-panel, a smashed windshield, blood spots inside the car, and blood on the driver’s side door handle.

[¶ 6.] Upon these observations, Officer Rud requested the investigator at the accident to come to the motel with broken parts found at the accident scene. It was determined that these broken parts fit into the damaged area of the Ford Escort. Next, Officer Rud called in the Ford’s license plate number, which revealed the owner as Jerry Lamont whose address was the Horseshoe Motel, room # 15.

[¶ 7.] Officer Rud advised his supervisor of their findings and asked to enter room # 15. After receiving such permission, the officers knocked on the door with no response. The officers observed that the door was unlocked and entered the unoccupied premises (first search). After entering, the officers conducted a search of the bedroom, living room, and bathroom, where they noticed blood spots in the bathroom sink and a bloody pair of pants lying on the bedroom floor.

[¶ 8.] Officer Rud relayed the findings of the search to Sergeant Vlieger. Upon his arrival at the police station, Vlieger directed Rud to return to the motel and secure the area while he made arrangements to get a search warrant. Upon returning, the officers noticed that the door was locked and the lights were off. Again, Rud knocked on the motel room door with no answer. Officer Rud called the manager so that he could let them into the room. The manager unlocked the door and Officer Rud gained entrance to the room (second search). Lamont was found therein where he was observed with fresh cuts on his nose and head.

[¶ 9.] Lamont was asked to come to the police station where he was arrested for vehicular homicide, second-degree manslaughter, and hit and run. Upon receiving Miranda warnings, he was instructed to give two blood samples. Per police instruction, each sample was taken with an hour interval between the two tests.

[¶ 10.] Prior to trial, the court ruled that emergency circumstances did not exist, thus this facet of the “exigent circumstances” exception to the warrant requirement did not apply and suppressed all evidence relating to the first search. Despite police not having a warrant to search Lamont’s room, the court denied Lamont’s motion to suppress the second search of Lamont’s dwelling determining the search was justified to “effectuate a custodial interrogation.” The court also held Lamont’s blood tests were obtained incident to lawful arrest. The court granted the State’s motion in limine prohibiting defense counsel from eliciting testimony or commenting on the decedent’s apparent blood alcohol level at the time of the accident.

[¶ 11.] Lamont appeals raising three issues:

1) Whether the trial court abused its discretion by granting the State’s motion in limine to forbid the defense to question or comment on the decedent’s apparent blood alcohol level at the time of the accident.
2) Whether the trial court erred by upholding the second search of Lamont’s dwelling.
3) Whether a second blood draw performed by the police was reasonable under the fourth amendment.

STANDARD OF REVIEW

[¶ 12.] Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603; Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9thCir.1993). We review findings of fact under the clearly erroneous standard. See State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. Whether police had a “lawful basis to conduct a warrantless search is reviewed as a question of law.” State v. Sleep, 1999 SD 19, ¶ 6, 590 N.W.2d 235, 237 (citing State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted)). Thus, on the issue of whether an exception to the warrant requirement applies is reviewed de novo.

DECISION

Issue 1. Decedent’s Blood Alcohol Level

[¶ 13.] Prior to trial, the State argued that the decedent’s blood alcohol level was irrelevant to Lamont’s criminal culpability and sought an order to prohibit defense counsel from any mention of it. The trial court granted the State’s motion in limine. In its attempt to prove that Lamont failed to stop at a stop sign, the State put forth evidence that the reaction time for an average person was 1.6 seconds. At trial, the defense wanted to controvert the State’s expert on perception reaction time of the general motoring public. The defense asked the State’s accident reconstructionist whether his figures would be accurate if the victim was legally drunk. For this, defense counsel was fined for violating the terms of the motion in limine. On appeal, Lamont argues that the excessive speed and intoxication of the decedent was relevant to the issue of proximate cause.

[¶ 14.] One method traditionally taken by the defense is to attack the elements of the offense charged. Generally, the defense does this by putting on evidence that creates a reasonable doubt as to whether a particular element was satisfied. In question is the element of proximate cause. The jury instruction for vehicular homicide, in pertinent part, reads as follows: The state must prove beyond a reasonable doubt:

1.That the defendant at the time and place alleged in the Information operated or drove a motor vehicle in a negligent manner.
2. That the defendant at the time and place was under the influence of an alcoholic beverage.
3. That the negligent operation or driving was a proximate cause of the death of Ronald Hall.
4. That the defendant did so without a design to effect the death of Ronald Hall.

This instruction reflects a correct statement of law. State v. Two Bulls, 1996 SD 53, ¶ 14, 547 N.W.2d 764, 766. The State claims that our holding in Two Bulls, however, precludes the defense from raising a defense based on contributory negligence.

[¶ 15.] In Two Bulls, the victim was a passenger in the vehicle rather than a driver. Moreover, Two Bulls was not under the influence, nor did the prosecution open the door by proffering expert testimony as to causation. The thrust of the State’s argument is that the defense should not be able to use the decedent’s blood alcohol level in any way because the decedent’s contributory negligence is irrelevant. The issue at hand, however, is whether the defense should be allowed to put on a defense that includes the use of the decedent’s blood alcohol level where decedent was operating the other vehicle involved in the accident as to show that it constitutes an “independent intervening cause” and the “proximate cause of the death.” See Two Bulls, supra, at ¶ 13 (citing State v. Rotella, 196 Neb. 741, 246 N.W.2d 74, 76 (1976)). Our decision in Tico Bulls does not preclude Lamont from offering evidence in support of his defense.

[¶ 16.] When a defendant is denied the ability to respond to the State’s case against him, he is deprived of “his fundamental constitutional right to a fair opportunity to present a defense.” Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986). We cited in State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.1988), notions of fundamental fairness require “that criminal defendants be afforded a meaningful opportunity to present a complete defense.” See also California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). It is only fair that a defendant in a criminal trial be allowed to present his theory of the case.

[¶ 17.] Although Lamont argues on appeal that the decedent’s blood alcohol level is relevant to his defense in challenging proximate cause, his nebulous argument to the trial court does not address the independent-intervening cause aspect of the case. Since we are remanding this case, it is incumbent upon Lamont to present authority and clearly state why such questioning should be allowed. Lamont must show that the victim’s intoxication level is related to the issue of proximate cause, not contributory negligence. While this Court recognizes that this may be perceived as “a second bite at the apple,” we are mindful that a defendant in a criminal case should be afforded the opportunity to challenge any element of the crime charged and present a complete and valid defense.

[¶ 18.] We reverse on this issue and remand for a new trial.

[¶ 19.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

KONENKAMP, Justice,

writing for the majority on Issues 2 and 3.

Issue 2. Warrantless Entry into Lamont’s Dwelling

[¶ 20.] Lamont argues that the second search of his dwelling was accomplished in violation of the Fourth Amendment. The police entered his motel apartment without a warrant, claiming a medical emergency. The trial court expressly rejected this rationale. It ruled that the “health and well-being of the [defendant was not the [officers’] motivation.” Nevertheless, the court concluded that the warrantless entry was reasonable and that it was done to accomplish a homicide investigation and arrest. In his appellate brief, Lamont asks, “Do we want to rely on why the police say they entered or do we want to try to think of a reason to justify their actions after the fact?”

[¶ 21.] It is important to keep in mind that we are not bound by the circuit court’s legal conclusions: we review legal questions anew. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d at 603. “Fact findings are reviewed for clear error, but ultimately, in reviewing decisions on motions to suppress for asserted constitutional violations our standard of review is de novo.” State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 669 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d at 920). Consequently, we are not constrained by the trial judge’s legal rationale for upholding the entry. Nor are we bound by the officers’ subjective justification. “[Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.” Arkansas v. Sullivan, — U.S. -, -, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994, 997 (2001); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).

The fact that [an] officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.

Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). An objectively reasonable search based on probable cause will not be rendered invalid even when the motive for the search was pretextual. See Sullivan, — U.S. at -, 121 S.Ct. at 1878 (citations omitted). It is our duty to make our own legal assessment of the evidence to decide under the Fourth Amendment whether the officers’ actions were “objectively reasonable.” See Maryland v. Buie, 494 U.S. 325, 330, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Viewing the circumstances objectively, the police had exigent circumstances to justify entering the room and arresting the defendant for vehicular homicide and felony hit and run. Thus, the search and seizure did not violate Lamont’s Fourth Amendment rights.

[¶ 22.] The State bears the burden of justifying a warrantless entry into a constitutionally protected area. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970) (citations omitted); State v. Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d 719, 723 (citations omitted). Before entering a suspect’s residence to effect an arrest, an officer must possess an arrest warrant absent exigent circumstances. Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). The exigency exception exists because some situations dictate immediate police response rather than delay to obtain a warrant from a judge. Exigency remains “within the narrow range of circumstances that present real danger to the police or the public or a real danger that evidence or a suspect might be lost.” United States v. Bulman, 667 F.2d 1374, 1384 (11th Cir.1982)(emphasis added). For example, in United States v. Roper, 681 F.2d 1354, 1357, n.1 (11th Cir.1982), the arrest of a suspect in his motel room without a warrant was justified by exigent circumstances where (1) there were simultaneous multiple arrests at the conclusion of a drug transaction, and (2) there was a legitimate fear that the defendant would escape. Police must show probable cause and exigent circumstances before making a warrantless entry into a person’s home for a felony arrest. Payton, 445 U.S. at 589, 100 S.Ct. at 1381, 63 L.Ed.2d 639 (citations omitted).

A.

[¶ 23.] The Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), examined whether the need to obtain the blood-alcohol level of a driver who had fled the scene of an accident would constitute an “exigent circumstance.” Id. at 742, 104 S.Ct. 2091. In Welsh, the driver lost control of his car and ended up in a field, causing no injury or damage. A witness who saw the driver wTalk away told the police that the driver was either inebriated or sick. The police went to the driver’s house and entered after the driver’s stepdaughter answered the door. They found the driver in bed, arrested him, and asked him to take an implied consent test. He declined. When his license was automatically suspended for refusing the blood test, he challenged the decision in court. Id. at 742-43, 104 S.Ct. 2091.

[¶ 24.] The United States Supreme Court held that neither exigent circumstances nor hot pursuit justified the entry into Welsh’s home. Welsh, 466 U.S. at 753-54, 104 S.Ct. at 2099-2100, 80 L.Ed.2d 732. The Court relied heavily on the nature of the offense, which in Wisconsin is a civil forfeiture traffic violation where no imprisonment was possible. See id. There, the exigencies were insufficient to overcome the warrant requirement in the context of an arrest for a civil traffic offense. Id. Nonetheless, the Court held that an important factor in determining whether an exigency exists is “the gravity of the underlying offense for which the arrest is being made.” Id. at 753, 104 S.Ct. 2091. Welsh stopped short of drawing a bright line between felonies and non-felonies, but the opinion states that circumstances are more clearly exigent when the offense is a “serious crime.” Id. at 752, 104 S.Ct. 2091. The reasoning in Welsh spawned a number of cases recognizing the proposition that blood alcohol dissipation may create a destruction of evidence exigency justifying a warrantless entry into a home. State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025 (1985); People v. Keltie, 148 Cal.App.3d 773, 196 Cal.Rptr. 243, 247 (1983); Stark v. New York State Dept. of Motor Vehicles, 104 A.D.2d 194, 483 N.Y.S.2d 824 (1984).

B.

[¶ 25.] In a case with striking similarities to our own, the Minnesota Supreme Court, sitting en banc, upheld a warrant-less entry into a suspect’s home after a hit and run. See State v. Storvick, 428 N.W.2d 55, 59 (Minn.1988)(distinguishing Welsh and upholding warrantless entry). Because the circumstances in Storvick are critical to our analysis, it is necessary to detail the facts of that case. A seventeen-year-old girl and her friend were walking alongside the road at 9:00 p.m. A car hit her, sending her flying through the air for over 100 feet. The car did not brake or slow before impact. It continued to drive without stopping. An ambulance and the police were dispatched to the scene moments later. The victim’s friend told the officers what happened. She described the car as a brand new 1986 or 1987 model, white in color. Id. at 56.

[¶ 26.] The police investigation began immediately. Officers processing the scene found no skid or other tire marks. Id. Another officer went to the hospital and learned that the victim was unconscious with a severe head injury. In grave condition, she would be flown to Rochester in the hope that something could be done for her. An officer took several items of clothing worn by the victim, including her right tennis shoe, the left one being missing. Meanwhile, the sheriff obtained some crash debris from deputies at the scene and proceeded to the local car dealership. After studying them, a parts department employee explained that the debris fragments were from the right front side and probably came from a Ford car manufactured after March 1985. Officers canvassed the area in an attempt to locate witnesses and a newer model white Ford with right front-end damage. Id at 56-57.

[¶27.] At 11:15 p.m., an officer spotted a white 1986 Ford Tempo with damage to its right front. The car was at an intersection approximately a half-mile from the scene of the accident. When the officer approached the vehicle, the driver, who was married to the defendant’s sister, got out, saying, “Are you looking for this?” Id. at 57. The trooper said yes and asked the driver what he was doing. The driver explained that he had gotten off work a short time earlier and that the defendant’s wife was at his mother’s place looking for him. The driver found the defendant at home asleep in his bed and took the car keys from the bedroom and left. Id. The witness who was with the victim at the time of the accident was brought to the scene, and she positively identified the car as the one that hit the victim. The police determined that pieces of debris from the accident scene fit perfectly on the car. They checked and learned that the car belonged to the local Ford dealership, where the defendant was an employee. Id.

[¶ 28.] The officers decided to go immediately to the defendant Brandt Stor-vick’s house. They arrived at 11:28 p.m., 2 ½ hours after the accident. As they approached the house, one officer found the victim’s missing tennis shoe in the driveway. The residence was dark. The sheriff and a deputy rang the doorbell and pounded on the door. There was no response, but one of them heard a “thump.” Id. They entered the attached garage through the open garage door and pounded on the door that led from the garage to the house. Still they got no response. The sheriff then opened the unlocked door into the family room, stepped inside, and announced that it was the sheriffs department. He asked if anybody was home, and yelled, “Brandt can you hear me? Anybody home? Hello, Brandt.” Id. (Bracketed information omitted). Finally, the defendant said something from upstairs, and the sheriff replied, “This is Don Nolander from the Sheriffs Department. Brandt, we need to talk to you. Do you want to come downstairs or do you want us to come upstairs and talk to you?” Id. The defendant said he would be down.

[¶ 29.] When the defendant came down, the sheriff, who had learned that the victim was “brain dead,” said, “Brandt, we are investigating a serious accident that is probably going to end up being a fatality, and we need to talk to you about that.” Id. The defendant Storvick was in a stupor and responded, “I am too scared, I can’t talk about anything” and “What are you doing in my house?” Id. The defendant was arrested for the felony offense of leaving the scene of a personal injury accident. Id. at 58. When the defendant was getting dressed, one of the officers noticed the odor of liquor on him. The officers told Storvick that they would be taking him to the hospital for a blood test with or without his consent. The defendant responded, “I drank after I got home.” Id. When the officers checked the house to see if there was any evidence that the defendant had drunk liquor after he got home, they found none. The test later showed his BAC to be .19. The defendant was charged with several felonies, including vehicular homicide.

[¶ 30.] Using a' de novo standard of review, the Minnesota Supreme Court reasoned: (1) The officers had strong probable cause to believe that Storvick had committed the very serious felony offense of either criminal vehicular operation or criminal vehicular operation resulting in death. To obtain a conviction for either offense, the prosecution had to show “grossly negligent driving” or “negligent driving by one who either was under the influence of alcohol or had a blood alcohol concentration of .10 or more.” Id. at 59. (2) The “field investigation” began at 9:07 p.m., immediately after the accident, and it was ongoing and continuous up to the arrest. (3) The officers acted cautiously and with due regard for the rights and sensibilities of the people involved. They checked to match the damaged car with the pieces found at the scene. They also checked and found that the car belonged to the defendant’s employer. When they went to the defendant’s house 2 ½ hours after the accident they were satisfied that the defendant had been driving the car. After arriving at the scene, their certainty only increased on finding the victim’s missing shoe in defendant’s driveway. Id. at BO-GO. (4) The defendant did not respond to the officers’ repeated knocking and doorbell ringing, but the officers heard a “thump.” They entered the attached garage through an open garage door and pounded on the door that led from the garage into the residence. Still there was no response. At that point the sheriff had a decision to make: attempt to obtain a warrant or proceed to enter the house without a warrant. Id.

[¶ 31.] The court concluded that the officers acted properly in entering the house without a warrant “because they had every reason to believe that defendant had been drinking and they needed to act as quickly as possible to precisely ascertain defendant’s blood alcohol level before the evidence dissipated.” Id. at 60. It is important to note, however, that the facts do not indicate that the officers had any direct evidence that the defendant had been drinking before they entered his home. Nor did they give as their reason for entry the need to get a blood sample. Yet the court stated:

Here, by fleeing the scene of the accident, defendant prevented the police from observing him and basing a probable cause assessment on their observations. However, there nonetheless was an objective basis for believing that it was necessary to scientifically ascertain defendant’s blood alcohol level: (a) at a minimum, the police had strong evidence of negligently inattentive driving on defendant’s part, the sort of inattention that often is explained by the defendant’s being under the influence of alcohol; (b) it was the time of day that, when an accident such as this occurs, drinking is often found to be involved; (c) the fact that defendant not only did not slow down but fled the scene tended to suggest that he had been drinking, intoxication being a common reason people flee accidents; (d) [a family member’s] statement to the police that defendant was asleep and that he got the keys from defendant’s bedroom certainly fits in with the view that defendant was intoxicated or under the influence and had gone home and passed out; (e) the fact that defendant left the victim’s shoe in the driveway perhaps tended to suggest that he was intoxicated or at least under the influence; and (f) the fact that defendant did not respond to the repeated loud knocking and doorbell ringing further suggested that defendant either had passed out or that he heard the police-and was not going to answer because he had something to hide, most likely that he had been drinking. Considered together, these facts provided an objective basis for believing that it was necessary to ascertain defendant’s blood alcohol level.

Id. at 60-61 (emphasis added). Finally, the court emphasized that the police were investigating the “extremely serious” offense of felony vehicular homicide, implying that the result might have been different “if the offense being investigated had been a less serious offense.” Id. at 61. See also United States v. Clement, 854 F.2d 1116, 1119-20 (8thCir.1988)(citing Welsh, noting the necessity of looking to the gravity of the offense, and characterizing cocaine trafficking as “a serious offense” that justified entry into hotel room).

C.

[¶ 32.] Now, we examine the facts of our case. (1) The officers had strong probable cause to believe that the serious felony offenses of vehicular homicide and hit and run with injury had been committed. The victim died at the scene. To obtain a conviction for vehicular homicide under South Dakota law, the State had to show negligent driving by one who either was under the influence of alcohol or had a blood alcohol concentration of .10 or more. SDCL 22-16-41 (maximum penalty fifteen years). To obtain a conviction for felony hit and run, the State had to prove that the driver was involved in an accident resulting in injury or death to a person, that the driver failed to immediately stop and give his name and address, and that the driver failed to render the person injured reasonable assistance, including carrying such person to medical treatment if such treatment was necessary or was requested by the injured person. SDCL 32-34-3 (maximum penalty two years); (2) The “field investigation” began at 2:00 a.m., immediately after the accident, was ongoing at the time the defendant’s car was spotted at the Horseshoe Motel at 4:00 a.m., and continued up to the arrest, which occurred between 5:00 and 6:00 a.m. The defendant’s blood was drawn at 7:40 a.m. and again at 8:40 a.m. (3) The officers acted cautiously and with due regard for the rights and sensibilities of the people involved. They did not simply discover the damaged car and immediately seek entry into the motel room. They checked the registration of the car and found that it was registered to Lamont. Then they checked the registration at the motel and discovered that he was registered as living in Room 15. The damaged car was parked in front of that room. They checked to match the damaged car with the pieces found at the scene. Indeed, Officer Ron-feldt brought a piece found at the scene and put it next to a missing piece on the car. It fit perfectly. Furthermore, there was blood on the outside and the inside of the car, strongly indicating that both the driver and someone else outside the car had been injured. Thus, the officers could be reasonably satisfied that the person inside the room was the person who had been involved in the accident. Although a suspect living in a motel room does not of itself create an exigent circumstance allowing departure from the warrant requirement, the temporary nature of a rented room should certainly be a factor in deciding whether the requirement for a warrant is excused by exigency. (4) The defendant did not respond to the officers’ repeated knocking for over five minutes. They then entered the unlocked room. The defendant was not present, but the TV and all the lights were on. There were bloody items in the room, only further confirming that the person in the room had been in the accident. (5) With nobody in the room, the officers decided to return to the station to relay the information to their supervisor. They were directed to go back to the room and secure it until a search warrant could be obtained. However, when they returned they now found that the room was locked and the TV and lights were all turned off. The officers could get no response from anyone inside.

[¶ 33.] At that point, the police had a difficult decision to make: continue waiting outside until a search warrant could be obtained or proceed to enter the room without a warrant. The door that had been open before was now locked. Was the suspect in the room? If he had been drinking, the blood alcohol evidence was dissipating. Was he injured or unconscious? Or did he lock the door and flee? Were they guarding an empty room while waiting for a search warrant? Or was evidence being destroyed in the room, making a later obtained search warrant a useless exercise? Deciding to act, the officers had the motel manager open the room with the master key. They found the defendant inside and he made an incriminating comment when the officers came in. Some of the bloody items were gone, but the officers were able to secure a piece of clothing with blood on it.

[¶ 34.] All the relevant circumstances suggesting that the accident was alcohol related in Storvick also existed here: strong evidence of negligent, .inattentive driving, with apparent failure to stop at a stop sign; the late hour (2:00 a.m.) when drinking is often involved in accidents; flight from the scene of the accident, indicating that the driver perhaps did not want to confront the police because of the possibility of intoxication; no response to repeated knocking, suggesting that the “defendant either had passed out or that he heard the police and was not going to answer because he had something to hide, most likely that he had been drinking.” See Storvick, 428 N.W.2d at 60. As the Minnesota Supreme Court concluded, the facts in their totality “provided an objective basis for believing that it was necessary to ascertain defendant’s blood alcohol level.” Id. at 60-61 (emphasis added). The court found that “[t]he additional fact that ‘the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system,’ meant that ‘[t]here was no time to seek out a magistrate and secure a warrant.’ ” Id. at 61 (quoting Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966)).

[¶ 35.] Indeed, although the officers did not give it as a reason for their decision to enter the room, Judge Tice in his oral findings remarked that as a basis for entering the room, the officers here needed to act quickly to preserve blood alcohol evidence: “[B]ecause of the nature of the fatality and time of day, there are possibilities, at least, of alcohol being involved.” Judge Tice found that there were “reasons to believe that evidence might be diminished if the arrest [could not] be effected in a timely fashion.”

[¶ 36.] With Fourth Amendment analysis, we generally avoid bright-line rules. See e.g. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). The “endless variations in the facts and circumstances” involving the Fourth Amendment make per se rules difficult to apply. Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983). Thus, like the Minnesota Supreme Court in Storvick, which limited its holding to the grave circumstances in that case, we need not decide whether the result would be the same if, for example, the offense under investigation had been less serious. Storvick, 428 N.W.2d at 61. But here an extremely serious offense occurred, and an objectively reasonable basis existed to enter the defendant’s room.

D.

[¶ 37.] In discussing transitory evidence cases, Professor LaFave stresses the distinction between “planned” arrests and those made in the course of an ongoing “field investigation.” 2 Wayne R. La-Fave, Search and Seizure § 6.1(f), at 271-73 (3d ed. 1995). The Connecticut Supreme Court used LaFave’s analysis in State v. Guertin, 190 Conn.440, 461 A.2d 963 (1983). In explaining this approach, the court stated:

[LaFave] defines a “planned” arrest as “one which is made after a criminal investigation has been fully completed at another location and the police make a deliberate decision to go to a certain place, either the arrestee’s home or some other premises where he [or she] is believed to be, in order to take him [or her] into custody.” In the “planned” arrest situation he suggests that any claimed exigent circumstances which may arise thereafter are foreseeable and therefore would not justify a warrantless entry unless the exigent circumstances are present before the police go into the field to make the arrest. On the other hand, he would not fault the police for not having an arrest warrant when the occasion for an arrest arises while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest.

Id. at 969. The Guertin court concluded that while the facts arguably presented a planned arrest, because there was no evidence that the police created the later emergency, their belief that the suspect might flee unless they moved quickly was reasonable. Id. at 969-70. Here, the officers went back to the motel, not planning to arrest the defendant, but intending to sit and wait for a search warrant. Yet when they arrived the circumstances had changed significantly. The evidence was no longer going to remain static in an empty motel room.

[¶ 38.] The spirit of the Fourth Amendment is reasonableness. Sitting in the sanctuary of our chambers with the advantage of hindsight, we may well analyze positions with exhaustive and clinical precision. But the officers acting in the wee hours of the night in the midst of their field investigation, with events changing and unfolding, had to use their best judgment in the moment. They were confronted with a difficult choice. Time became critical. Their subjective reason for acting quickly may not satisfy the Fourth Amendment, but nonetheless their actions in these circumstances were objectively reasonable. We therefore sustain the trial court’s ruling.

Issue 3. Second Blood Draw

[¶ 39.] Lamont does not challenge the evidence obtained from an initial blood draw taken by the police. Nonetheless, he asserts that the circuit court erred when it refused to suppress evidence obtained from the second blood draw taken within an hour of the first. The State’s right to require, within constitutional limits, an individual to submit to a test of body fluids, including blood, is well established. State v. Nguyen, 1997 SD 47, ¶ 10, 563 N.W.2d 120, 122. Such an intrusion does not transgress the reasonableness requirements of the Fourth Amendment. Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836, 16 L.Ed.2d 908 (1966). A blood draw is reasonable if it is accomplished incident to a lawful arrest, by a reliable and accepted method, in a medically approved manner, and with probable cause to believe the evidence sought exists. Nguyen, 1997 SD 47, ¶ 10, 563 N.W.2d at 122-23 (citations omitted).

[¶ 40.] Lamont sees no constitutional infirmity in taking the first blood sample, and we can see little reason to fault taking the second, especially as they were taken an hour apart. With two blood samples the laboratory could more accurately extrapolate Lamont’s BAC at the time of the accident. Indeed, a second draw in some instances may elicit exculpatory evidence for those who consume alcohol after an accident occurs. As previously stated, bright line rules are generally undesirable in Fourth Amendment jurisprudence. Robinette, 519 U.S. at 39, 117 S.Ct. at 421, 136 L.Ed.2d 347. Courts must be allowed to consider the facts and circumstances in each case. Considering the totality of circumstances in this case, a second blood draw was reasonable.

[¶ 41.] Affirmed on Issues 2 and 3, reversed on Issue 1, and remanded for a new trial.

[¶ 42.] MILLER, Chief Justice and GILBERTSON, Justice, concur.

[¶ 43.] SABERS, Justice, concurs in part and dissents in part.

[¶44.] AMUNDSON, Justice, dissents.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 45.] I concur in Issue 1.

[¶ 46.] I join Justice Amundson’s dissent in Issue 2.

[¶ 47.] I join Justice Amundson’s dissent in Issue 3 under these limited circumstances, but write specially to emphasize that it is foreseeable there may be numerous situations in the future where a second blood alcohol content test would be justified.

AMUNDSON, Justice

(dissenting).

[¶ 48.] I dissent on issues 2 and 3 for the forgoing reasons.

Issue 2. Warrantless Entry into Lamont’s Dwelling

[¶ 49.] A. Search incident to lawful arrest

[¶ 50.] The Fourth Amendment to the United States Constitution and Article VI, § 11 of the South Dakota Constitution provide that people have the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. It has long been established that the Fourth Amendment prohibits police from entering into a suspect’s home to make a felony arrest. Payton, supra, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586, 100 S.Ct. at 1380. Warrantless arrests and searches, therefore, are unconstitutional unless there is a showing by those who seek exemption from the warrant requirement that their actions fall within a narrowly defined exception. Thus, the State has the burden to prove that the specific search falls into a delineated and limited exception. See State v. Heumiller, 317 N.W.2d 126, 128 (S.D.1982); State v. Max, 263 N.W.2d 685, 687 (S.D.1978). Our analysis is also limited to “the facts perceived by the police at the time of the entry, not as subsequently uncovered.” Meyer, 1998 SD 122 at ¶ 23, 587 N.W.2d at 724 (citing Heumiller, 317 N.W.2d at 129).

[¶ 51.] The trial court determined that the second search was permissible in order for police to “effectuate a custodial interrogation.” The trial court found that the police could enter Lamont’s home without a warrant because of the nature of the crime and the potential of Lamont being there. There is no case law that establishes this exception. To “effectuate a custodial interrogation” is, in essence, to effectuate an arrest. To allow such an exception would swallow the rule. A warrant must be procured before the police enter the home of a suspect before an arrest can be permissibly made. While there is no such exception as the “effectu-ation of custodial interrogation” exception, we will address the State’s only argued exceptions in this case: search incident to lawful arrest and hot pursuit.

[¶ 52.] The rationales behind the creation of the search incident to lawful arrest exception are to protect the officers’ safety and avoid potential escape by the suspect. Meyer, supra, at ¶ 25. Under this exception to the warrant requirement, an officer can search the immediate vicinity of the suspect because a gun or some other weapon may be within his or her reach. Id. Likewise, the exception is also warranted because the suspect could also grab something that might lead to his or her escape. Id. Therefore, if one of these two reasons is being advanced, the exception applies, and a warrant is not required in making a valid search.

[¶ 53.] The search incident to lawful arrest exception, however, is subject to limitation. It is true that the arrest need not be a condition precedent to the search. State v. Thunder Horse, 85 S.D. 76, 177 N.W.2d 19 (1970). We have stated, however, that the search in relation to the arrest cannot be “remote from it either in time or place.” Thunder Horse, supra, at 82, 177 N.W.2d 19 (citing Sipera v. State, 286 Minn. 536, 175 N.W.2d 510 (Minn 1970)). Thus, before such exception can be implicated, the search must be contemporaneous to, or part of a continual transaction to the arrest.

[¶ 54.] Because of the limited scope and application of the exception, I reject the State’s argument that the second search was constitutionally permissible under the guise of search incident to lawful arrest. The facts of this case fail to satisfy both the temporal and spatial aspects of the exception. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). As directed by his commanding officer, Officer Rud was to secure the area until a warrant was issued. Officer Rud chose not to wait. Rather, he again entered this room without a warrant and subsequently found Lamont. It is important to note that Lamont was not arrested at that time. Lamont was not arrested until he was brought to the police station over an hour after the search. How could this exception apply when the arrest occurred over an hour after the search and at a wholly different location? Again, the answer is clear. The rationales behind the search incident to lawful arrest exception would eviscerate if we were to allow the search to come before the arrest in this case. Because the search incident to lawful arrest exception does not apply, the search violates the Fourth Amendment.

[¶ 55.] B. Hot Pursuit

[¶ 56.] The other ground that the trial court relied on in upholding the second search is hot pursuit. According to the trial court, Lamont was a flight risk and attempting to conceal himself. The court also determined that the officers were in hot pursuit.

[¶ 57.] The officers’ initial appearance at the Horseshoe Motel was to investigate an unrelated matter. It was pure happenstance that led to their investigation of Lamont. The United States Supreme Court, in reviewing the “hot pursuit” exigency justifying a warrantless entry, has defined the circumstance as one where there is an “immediate or continuous pursuit of [a suspect] from the scene of a crime”. Welsh, 466 U.S. at 753, 104 S.Ct. at 2099. In Commonwealth v. Talbert, 23 Va.App. 552, 478 S.E.2d 331, 334 (1996), the court explained that “[a] pursuit is ‘hot’ if the circumstances are such that breaking off or delaying the chase for the time required to obtain a warrant is likely to involve significant danger to any person, loss of evidence or opportunity for the suspect to escape.” Such circumstances encompassed within the meaning of “hot pursuit” do not exist in the case before us. To conclude that the officers were,in hot pursuit even though they never saw him, did not know for sure he was the driver of the vehicle, and did not know he was in the room at the time of entry is clearly erroneous.

[¶ 58.] These findings, under either the clearly erroneous or de novo standard, cannot be upheld. At the time of entry, the officers did not know that Lamont was the driver of the vehicle that was involved in the accident. It was only after their entry did they find out Lamont was involved in the accident. As we have previously stated, we must review the fact known to the officers “at the time of the entry, not as subsequently discovered.” Meyer, supra, at ¶23. Since the two searches were constitutionally impermissible, all evidence seized and statements made that were not freely given should also be suppressed. The statements made by Lamont and the testimony by the officers of what they observed inside Lamont’s home should be inadmissible as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In order to avoid such a result, it is incumbent upon the State to show that the evidence was not the product of the illegal search. Wong Sun, supra at 483, 83 S.Ct. 407. Thus, the State must prove that the statements made by Lamont or the testimony of the officers describing Lamont’s motel room did not come “by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id.

[¶ 59.] Here, the statements made by Lamont and the officers’ observations of Lamont’s motel room are a direct and natural consequence of the illegal search. It does not matter that Lamont received Miranda warnings as the warnings can only cure a Fifth Amendment defect. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Cf. State v. Habbena, 372 N.W.2d 450 (S.D.1985) (holding that a subsequently issued search warrant was an independent source thus, the exclusionary rule did not apply). Because the State has failed to prove that Lamont’s statements or the officers’ observations were procured from an independent source or some other non-illegal causal connection, all statements made by Lamont and the officers’ observations of Lamont’s home are to be suppressed. See Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1987). Since the evidence used against Lamont was not obtained through an “independent source,” the exclusionary rules applies as the State failed to prove that its investigation to be “sufficiently [ ] purged of the primary taint.” Wong Sun, supra.

Issue 3. Second Blood Draw

[¶ 60.] The trial court held that the two separate blood samples taken from Lamont were permissible under the search incident to lawful arrest exception to the warrant requirement.

[¶ 61.] Both parties agree that Lamont did not consent to the blood tests. Thus our review of a non-consensual search is subject to traditional Fourth Amendment analysis. Meyer, 1998 SD 122 at ¶ 24, 587 N.W.2d at 724; State v. Benallie, 1997 SD 118, ¶ 11, 570 N.W.2d 236, 238. Meaning, we review the propriety of the search of Lamont’s blood as a question of law, subject to de novo review. Himing, supra at ¶ 9.

[¶ 62.] We have long held that a blood test may be required as a search incident to lawful arrest following certain types of felony arrests. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Where a showing had been made that the substance searched for is of the character that may quickly dissipate a warrant is not required. See State v. Buchholz, 1999 SD 110, 598 N.W.2d 899; State v. Hanson, 1999 SD 9, 588 N.W.2d 885. The detection of incriminating evidence, for Fourth Amendment purposes, permits such intrusion.

[¶ 63.] Our cases have not allowed continued permission for police to conduct multiple blood tests for the purposes of extrapolation only. Allowing one test is reasonable under the Fourth Amendment if it can be shown necessary for the gathering evidence which may quickly dissipate. Any more than the initial intrusion, however, must be justified on independent grounds. Almond, 511 N.W.2d at 575 (holding that while there was probable cause to detain defendant, there was no further independent justification to search defendant). Because an independent ground has not been identified by the State, there is no authority for a second, third or fourth, etc. blood sample. Id.

[¶ 64.] This Court has always allowed the extrapolation to be introduced to opine as to the blood alcohol level at the time of the stop or whenever. State v. McDonald, 421 N.W.2d 492 (S.D.1988); State v. Fode, 452 N.W.2d 779 (S.D.1990). Here, the police wanted a second sample of Lamont’s blood for no other reason than to strengthen its case. While the temporal aspect of this case only involves an hour’s time, it is important to remember that it is the justification and underlying rationale for allowing blood tests that governs Fourth Amendment analysis. The “reasonableness” of the intrusion is examined only after the requisite legal justification for the initial intrusion itself is satisfied. United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 315-18, 92 S.Ct. 2125, 2136-37, 32 L.Ed.2d 752 (1972) (“Though the Fourth Amendment speaks broadly of ‘unreasonable searches and seizures,’ the definition of ‘reasonableness’ turns, at least in part, on the more specific commands of the warrant clause”). The prosecution through-one blood test could prove the element of “legal drunkenness.” A second test is not necessary.

[¶ 65.] Therefore, I respectfully dissent.

      . This determination made by the trial court was based on the facts that the time elapsed upon observing the blood and actually entering the motel room of Lamont was over an hour; that blood alone is not indicative of a crime and could possibly be explained through alternative means; and that testimony of the on-the-scene officers did not treat it as an emergency: no rubber gloves were used, they did not call for an ambulance nor did they bring their medical kit along to provide assistance if someone was actually injured inside Lamont’s motel room. The court found that based on these facts, the purpose of entering the room was to investigate a possible crime, and not to provide medical assistance.

      . It is true that a defendant in a criminal case can be convicted of a crime when his or her conduct is one of many causes for the resulting death. See Two Bulls, supra; State v. Theuring, 46 Ohio App.3d 152, 546 N.E.2d 436 (1988); State v. William, 231 Neb. 84, 435 N.W,2d 174 (1989). There may be, however, circumstances where the actions of someone other than the defendant are the proximate cause. As stated in Two Bulls, "the negligence or unlawful acts of another driver which proximately contributed to the death, as distinguished from an independent intervening cause thereof, [are] not a defense[.]” Supra, at ¶ 13 (emphasis supplied). Examples of where courts have drawn a distinction between an independent intervening cause and contributory negligence are: Pagotto v. State, 127 Md.App. 271, 732 A.2d 920, 966 (1999) ("It is possible for negligence of the deceased or another to intervene between his conduct and the fatal result in such a manner as to constitute a superceding cause, completely eliminating the defendant from the field of proximate causation”); People v. Schmies, 44 Cal.App.4th 38, 51 Cal.Rptr.2d 185, 192 (1996) ("An independent intervening act may be so disconnected and unforeseeable as to be the superceding cause; in such a case the defendant's act will be remote, and not the proximate cause”); State v. Dionne, 442 A.2d 876, 887 (R.I.1982) ("The deceased's negligence is irrelevant absent evidence that would support a finding that the deceased's conduct amounted to an independent intervening cause.... Before the trial judge is obligated to charge the jury regarding the consideration that may be given to the deceased's conduct in the case ... evidence must have been introduced which would indicate that the deceased's conduct was the sole cause of her death and that the defendant's conduct had nothing to do with the fatality.”); People v. Dunhill, 40 Colo.App. 137, 570 P.2d 1097, 1098 (1977) ("Absent proof that it was an independent intervening cause the contributory negligence of the victim is not a defense in a prosecution for vehicular homicide”). As such, a defendant should not be foreclosed from putting forth evidence of independent-intervening causes.

      . I need not address the other State’s proffered exception to the warrantless requirement as the trial court expressly rejected the emergency circumstances exception and the State did not file a Notice of Review.

      . It is important to note that the nature or the severity of the crime is irrelevant to our inquiry. The State argues that because a death is involved, we should disregard Fourth Amendment protections. It is instructive that in Payton, the defendants were charged with serious crimes-murder and armed robbery. In Payton, the United States Supreme Court denounced the import of the nature of the offense and declined to engage in such a fanciful analysis. In the case at hand, the death was an unintentional homicide at best.

      . There appears to be some discrepancy whether probable cause existed to arrest Lamont prior to their entering his home. Probable cause, however, is not dispositive or probative of whether an exception to the warrant requirement existed. "To be arrested in the home involves not only the invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant [ ] even [ ] when probable cause is clearly established.” Payton, 445 U.S. at 588-89, 100 S.Ct. 1371. I fail to see how probable cause cures the warrant requirement. Under the majority’s holding on this issue, it is obvious that a South Dakota resident cannot retreat into his or her home without being subjected to arbitrary governmental intrusion, even though the officers were directed to only secure the area.

      . Black’s Law Dictionary defines pursuit: the act of chasing to overtake or apprehend. Black's Law Dictionary 1250 (7th ed. 1999). As mentioned before, the officers were called to the Horseshoe Motel on an unrelated matter; the driver of the vehicle in question was unknown at the time; and Lamont’s room was found unoccupied after the first illegal search. To say that these officers were in hot pursuit would all but eviscerate the general rule prohibiting searches in violation of the Fourth Amendment.

      . The majority relies on Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) and State v. Storvick, 428 N.W.2d 55 (Minn.1988) for upholding a search on an exception the State never presented evidence on or argued to the trial court. The majority now creates after-the-fact "exigent circumstances” the police officers never thought existed. Moreover, the cases relied upon by the majority are factually dissimilar to the case at hand. Welsh dealt with a misdemeanor traffic offense where the United States Supreme Court held that a warrantless intrusion into defendant’s dwelling was unreasonable under the Fourth Amendment. Here, we have what the majority considers a "more serious crime.” It is important to note that Payton, which was not overruled by Welsh, involved murder and armed robbery. Despite the "serious” nature of those crimes, the Payton court held that a warrantless search of defendant's home violated the Fourth Amendment. While the majority relies on certain excerpts of dicta in Welsh, Fourth Amendment protection should not depend on the gravity of the offense, as illustrated in Payton. As the Welsh court stated, "no exigency is created simply because there is probable cause to believe that a serious crime has been committed.” 466 U.S. at 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732.
      Moreover, the factual scenario surrounding the second search of Lamont’s home is distinguishable from Storvick. In this case, police had specific directions from their commanding officer to secure the area and wait for a search warrant. The majority claims that lights being turned off and the door being locked so changed the circumstances that the police had to act quickly. The majority, however, fails to mention that Lamont's vehicle had already been towed, therefore, giving Lamont little access for escape. It should also be pointed out that this was Lamont’s permanent home. With no means to flee and no place to find refuge only support the position that the police should have waited for a warrant. Another distinction from Storvick is that in this case no testimony was presented to the trial court that police were concerned about dissipation of Lamont’s blood alcohol level. At the suppression hearing both responding officers testified that their sole reason for entering Lamont’s home without a warrant is to see if anyone was in need of medical attention. For reasons discussed earlier, the trial court rejected this ground. The majority’s dismissal of these facts defeat any analogous comparison to Storvick. The Stor-vick court stated that the officers "needed to act as quickly as possible to precisely ascertain defendant’s blood alcohol level before the evidence dissipated ... and that our decision is a limited one based on the facts of this case.” 428 N.W.2d at 61. This is not a case of "limited” circumstances where this Court should follow Stoivick, as the initial blood lest in this case is not in dispute, as no evidence was presented as to the dissipation of blood alcohol levels, and as the trial court never ruled in such a manner. We do, however, agree with the majority’s citation to Storvick to the extent that "the expectation of privacy that one has in one’s residence is the core expectation or interest protected by the Fourth Amendment and we are and will be hesitant in finding exigent circumstances for warrantless entries of dwellings.” 428 N.W.2d at 61. As recently as last term, the United States Supreme Court, per Justice Scalia, wrote in invalidating a search as unconstitutional: "At the very core of the Fourth Amendment stands the right of man to retreat into his own home and be free from unreasonable governmental intrusion.” Kyllo v. United States, - U.S. -, -, 121 S.Ct. 2038, 2041, 150 L.Ed.2d 94, -, Lamont’s core expectation of privacy is worthy of Fourth Amendment protection no matter what we might think of him personally.

      . It is important to note that the police did not rely on the search incident to lawful arrest exception. Simply put, there is no authority allowing a second test. Our review of the South Dakota Codified Laws allows "the” "withdrawal” or “chemical analysis” of blood for determining a DUI offense. See SDCL §§ 32-23-1 et seq. The statutes that implicate blood draws are written in the singular as evidenced by the use of the article "the” coupled with the singular use of the noun. The State, nor can the majority, point to any statute, which allows for the taking of multiple tests or samples. As such, we will not condone such a practice not authorized by statute.