author:
CROTHERS, Justice.
      SANDSTROM, Justice,

text:
    2008 ND 141
    STATE of North Dakota, Plaintiff and Appellee v. Steven Arthur TORKELSEN, Defendant and Appellant.
    No. 20070140.
    Supreme Court of North Dakota.
    July 21, 2008.

      Lonnie Olson (argued), Ramsey County State’s Attorney, Devils Lake, ND, and Lisa Beckstrom Gibbens (appeared), Towner County State’s Attorney, Cando, ND, for plaintiff and appellee.
    Daniel Eric Gast (argued) and Ross Wheeler Brandborg (on brief), Fargo, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Steven Torkelsen appeals from a criminal judgment after a jury found him guilty of murdering Rebecca Flaa. We affirm, concluding the district court did not err in denying Torkelsen’s motion to suppress evidence seized, and Torkelsen was not denied the right to represent himself.

I

[¶ 2] At approximately 9:00 a.m., on June 27, 2004, Tom Belzer, a local farmer, discovered a human body burning in a ditch east of Cando. Belzer told one of his employees to call emergency personnel. Before law enforcement officers arrived, Torkelsen drove up to the scene in his pickup, stepped out onto the road, and asked Belzer if he needed any help. Tor-kelsen was smoking a cigarette at the time, and a cigarette butt containing Tor-kelsen’s DNA was later found on the gravel road above the body. Belzer told Tor-kelsen to leave the area, and Torkelsen complied with the request.

[¶ 3] When law enforcement officers arrived, Belzer told them about .Torkelsen. A “be on the lookout” bulletin was issued for Torkelsen’s pickup. While en route to the crime scene, North Dakota Bureau of Criminal Investigations Agent Craig Za-chmeier saw a green Florida Marlins jacket in the middle of the road, but proceeded on to the crime scene. The jacket was located on a direct route from the crime scene to Cando. Zachmeier arrived at the crime scene around 10:30 a.m., but later went back to collect the jacket. He noticed blood on the jacket, which was later tested and confirmed as Flaa’s blood.

[¶ 4] At approximately 1:26 p.m., Tor-kelsen’s vehicle was stopped 28 miles west of Cando. Torkelsen was informed that he was wanted for questioning and would be handcuffed for his own safety. Torkelsen was transported to Cando, and his pickup was left at the scene of the stop.

[¶ 5] Torkelsen’s handcuffs were removed upon his arrival at the Towner County Sheriffs Office. Zachmeier began interviewing Torkelsen at approximately 2:15 p.m., and the interview was videotaped. Zachmeier read Torkelsen his Miranda rights, and Torkelsen acknowledged he understood them. Zachmeier informed Torkelsen he was not under arrest, but was being detained for questioning because he was at the crime scene; however, Zachmeier did not tell Torkelsen he was free to leave. Zachmeier asked Torkelsen if he could talk to him about what happened that morning, and Torkelsen consented. Zachmeier asked Torkelsen what he saw when he ran into Belzer. earlier that day, where he was staying, and what he had been doing. Torkelsen said he stayed at his parents’ house in Cando the previous night, but went to his camper in the morning, and then watched a movie and slept. Zachmeier requested Torkel-sen’s consent to search his pickup and camper, and Torkelsen consented to a search of his camper twice and to a search of his pickup three times. Zachmeier requested Torkelsen’s permission to photograph Torkelsen’s hands, arms, back and legs, and Torkelsen consented. Zachmeier noticed an odor of alcohol on Torkelsen’s breath, and tests showed he had a blood alcohol concentration of .003 percent. At approximately 3:00 p.m., Zachmeier read Torkelsen the written consent to search form, which included language about the right to refuse to consent to the search. Torkelsen signed consent forms for searches of the camper and pickup.

[¶ 6] At approximately 3:30 p.m., Tor-kelsen and law enforcement officers arrived at the camper, located on the Abra-hamson farm. Torkelsen consented to the search again and showed officers how to unlock and enter the camper. Law enforcement officers found incriminating evidence in the camper, including tissue containing what appeared to be human blood; marijuana cigarette packs; rolling papers; papers with Flaa’s name on them; a video cassette case with what appeared to be human blood on it; blood on a cupboard, cabinet doors, molding, and the ceiling; a bag containing makeup with the name Becky; a knife with a broken tip in the sink; cigarette and marijuana cigarette butts; and papers with Torkelsen’s name on them. At approximately 5:00 p.m., before leaving the site of the camper search, Torkelsen again consented to a search of his pickup. Before going to Torkelseris pickup, officers gave Torkelsen something to eat and drink, but denied his request to stop at his parents’ house.

[¶ 7] At 6:20 p.m., the officers and Tor-kelsen arrived at the pickup for the search. Torkelsen consented to a search of the pickup again. The officers searched the pickup and found human hair; burnt fabric; a bloody bed sheet, which was later tested and confirmed as Flaa’s blood; a pillow case; a knife; a blanket with hairs on it; three .270 caliber rifle cartridges; nylon rope; and black plastic bags. The search was completed around 7:45 p.m., and Torkelsen was transported back to Cando for a second interview.

[¶ 8] At 6:30 p.m., Highway Patrol Trooper Robert Kennedy learned from another law enforcement officer that Torkel-sen and Flaa had been staying together at the Abrahamson farm, owned by J.R. Gib-bens. Kennedy visited with Gibbens and learned Gibbens had padlocked the farmhouse a week earlier to prevent Torkelsen and Flaa from using it. At 7:40 p.m., Gibbens signed a consent form allowing officers to search the farmhouse located on the Abrahamson farm. At 8:45 p.m., officers searched the farmhouse and outbuildings and found a document and a magazine with Torkelsen’s name in the farmhouse, a clump of auburn hair similar to Flaa’s in the bathroom garbage and a spot of blood in the living room.

[¶ 9] At 9:45 p.m., Torkelsen was interviewed a second time, and the interview was videotaped. Zachmeier read Torkel-sen the Miranda warning again, and Tor-kelsen acknowledged he understood his rights. Torkelsen reviewed the consent to search forms and stated he did not have a problem with the searches of his camper and pickup. Zachmeier asked Torkelsen about the evidence found during the searches. Torkelsen said he was in a sexual relationship with Flaa. He said that she stayed with him in his camper on June 23, that he left the camper the next morning to go to his parents’ house in Cando, but Flaa was not at the camper when he returned at 9:00 p.m. that night and that he thought she left to go back to her boyfriend. He said he stayed at his parents’ house on June 25 and 26, but he left his parents’ house at 6:00 a.m. on June 27 and returned to the camper where he slept until 8:30 a.m. He stated he was traveling back to Cando on a rural county road out of his way, when he saw Belzer and asked if he needed any help. He said that after he talked to Belzer, he returned to his parents’ house, showered, changed his clothes, then left, after which law enforcement stopped his vehicle and took him into custody. Torkelsen also said he left a pair of work boots and a pair of tennis shoes at his parents’ house. He gave a description of Flaa, which matched the body found in the ditch, and identified the green Florida Marlins jacket as Flaa’s. Torkelsen claimed Flaa cut her lip and had a bloody nose to explain the blood found in the camper. At 10:05 p.m., Torkelsen consented to give a saliva sample for DNA. Tor-kelsen was formally arrested and taken to the Lake Region Correctional Center at approximately 11:30 p.m.

[¶ 10] At around 11:30 p.m., Zachmeier interviewed Torkelsen’s parents, Art and Leona Torkelsen. They said Torkelsen had been with Flaa, he came to their home on June 24 to get candy and food for Flaa, but he told them she was gone when he returned to the camper. Art and Leona Torkelsen consented to a search of their house, but Art Torkelsen later revoked his consent. The officers left the house, but one officer came back to watch the house. Zachmeier applied for a search warrant by telephone and testified in support of the warrant. Zachmeier requested the warrant authorize a no-knock search and nighttime service. Zachmeier testified a nighttime search warrant was justified because they were investigating a serious offense, because he was concerned Torkel-sen’s parents may try to get rid of evidence to protect their son, and because Torkelsen’s parents had posted a substantial bond for him before. A search warrant was issued at 2:28 a.m., authorizing a search of Art and Leona Torkelsen’s home for controlled substances and items connected to the murder. The warrant in-eluded no-knock and nighttime service provisions. The issuing magistrate authorized a nighttime search and said, “Based on the seriousness of the crime, and based on the unwillingness of the owners of the residence to help you in the search a night time service of this search warrant is authorized.”

[¶ 11] The officers executed the search warrant at 2:45 a.m., and Zachmeier did not participate in the search. They knocked and rang the doorbell to wake Art and Leona Torkelsen and did not use the no-knock provision. The officers seized boots located in the garage which were splattered with blood and had hair on the bottom, gas cans from the shed, and firearms.

[¶ 12] On June 28, 2004, officers talked to a witness who saw Torkelsen pour gas into his pickup from a red gas can on the morning of June 27, in the alley behind his parents’ house. A second witness, one of Art and Leona Torkelsen’s neighbors, reported seeing Torkelsen place a yellow woman’s shirt in the witness’s trash can on the morning of June 27. Two other individuals reported seeing Torkelsen acting strangely as he unloaded items from his truck at his parents’ house on June 27.

[¶ 13] Later that afternoon, a second burn site was reported on a farm near a coulee bank. The grass leading to the burn site was packed down by vehicle tire tracks, and officers later determined the tire tracks closely matched the measurements of Torkelsen’s pickup. Officers found a belt buckle, pants, luggage tag, and a cigarette butt. The cigarette butt contained Torkelsen’s DNA. A dive search of the coulee was also completed, and officers found what appeared to be metal frames from a suitcase. The next day, a piece of paper with Flaa’s name was found nearby.

[¶ 14] On June 30, 2004, officers interviewed a witness who stated that he thought Torkelsen had previously beaten Flaa badly and that Flaa had two dark colored suitcases when Torkelsen picked her up. Officers received information from another witness on July 1, who reported seeing Torkelsen wash out his pickup at the car wash in Cando, at around 10:00 a.m. on June 27.

[¶ 15] The body found burning in the ditch was identified as Flaa. Authorities determined Flaa’s death was caused by blunt force trauma to the head and by asphyxiation. Torkelsen was charged with her murder.

[¶ 16] Before trial, Torkelsen moved to dismiss or suppress the evidence on Fourth Amendment grounds. The district court denied Torkelsen’s motion, and he entered an Alford conditional guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and N.D.R.Crim.P. 11(a)(2), reserving the right to appeal. Torkelsen appealed the criminal judgment, arguing the district court erred in denying his motion to suppress. In State v. Torkelsen, 2006 ND 152, 718 N.W.2d 22, this Court reversed the criminal judgment, concluding the initial stop of Torkelsen’s vehicle was illegal because at the time of the stop, the officers did not have a reasonable and articulable suspicion Torkelsen had engaged in criminal activity.

[¶ 17] On remand, Torkelsen moved to suppress his videotaped interviews and the evidence found in the camper, pickup, and his parents’ house, arguing the evidence was seized as a result of the illegal stop of his vehicle and, therefore, the evidence must be suppressed as “fruit of the poisonous tree.” The district court denied his motion and concluded the evidence was admissible because Torkelsen voluntarily consented to the searches of his person, camper, and truck; any taint of the illegal stop was purged; there was probable cause to issue a search warrant for Torkel-sen’s parents’ home, but there was not probable cause for a nighttime search warrant; the nighttime search warrant did not satisfy the good-faith exception; the evidence found in the camper and Torkelsen’s parents’ house would have been inevitably discovered; and evidence from the camper and pickup would have been found in a search authorized by Torkelsen’s probation officer.

[¶ 18] Torkelsen attempted to play an active role in his defense, writing letters to the court, filing motions, and often interrupting proceedings if he thought something was not being done correctly. Previous court appointed attorneys withdrew their representation of Torkelsen. The attorney who represented him at trial, Thomas E. Merrick, also moved to withdraw as counsel. During the fifth day of trial, Torkelsen asked the court whether it would accept Merrick’s motion to withdraw as counsel, and the court denied his request. The jury found Torkelsen guilty of murdering Flaa, and he was sentenced to life without parole.

II

[¶ 19] Torkelsen first claims the district court erred by failing to suppress evidence. When reviewing a decision on a motion to suppress, we recognize the court has an opportunity to observe the witnesses and to assess their credibility, and we defer to the court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We will affirm the court’s decision if “ ‘there is sufficient competent evidence fairly capable of supporting the [district] court’s findings, and the decision is not contrary to the manifest weight of the evidence.’” Id. (quoting City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994)). Whether a finding of fact meets a legal standard is a question of law, fully reviewable on appeal. Graf, at ¶ 7.

A

[¶ 20] Torkelsen argues the district court erred in failing to suppress the statements he made during the interviews with law enforcement and the evidence seized as a result of the statements he made during the interviews because the evidence and testimony was obtained as a result of the illegal stop of his vehicle and his illegal detention, and therefore the statements and evidence must be excluded as “fruit of the poisonous tree.” He also contends his consents to the interview and the searches of his camper and pickup do not sufficiently purge the taint of the unlawful stop.

[¶ 21] Under the Fourth Amendment of the United States Constitution and article 1, section 8 of the North Dakota Constitution, all searches and seizures must be reasonable. A warrantless search of a person’s home is presumptively unreasonable, but a warrantless search may be reasonable if it falls under one of the exceptions to the warrant requirement. Graf, 2006 ND 196, ¶ 9, 721 N.W.2d 381. “Consent is one exception to the warrant requirement,” but the consent must be voluntary and the State has the burden of proof. Id. at ¶¶ 9-10. Whether an individual voluntarily consented to a search is a question of fact that must be determined by looking at the totality of the circumstances. Id. at ¶ 10. “ ‘[B]ecause the [district] court is in a superior position to judge credibility and weight, we show great deference to the [ ] court’s determination of voluntariness.’ ” State v. Genre, 2006 ND 77, ¶ 30, 712 N.W.2d 624 (quoting State v. Helmenstein, 2000 ND 223, ¶ 18, 620 N.W.2d 581). “Consent is voluntary when it is the product of a free and unconstrained choice and not the product of duress or coereion[,]” and to decide whether consent is voluntary we consider:

“(1) the characteristics and condition of the accused at the time of the consent, including age, sex, race, education level, physical or mental condition, and prior experience with police; and (2) the details of the setting in which the consent was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused’s powers of resistance or self control.”

Id. at ¶ 31 (quoting State v. Haibeck, 2004 ND 163, ¶ 21, 685 N.W.2d 512).

[¶ 22] The district court provided a thorough and detailed analysis of whether the evidence from the searches of the camper and pickup and Torkelsen’s interviews with law enforcement was admissible. The court found Torkelsen voluntarily consented to the searches based on the totality of the circumstances. The court considered Torkelsen’s characteristics and his condition, including his age and education, his extensive experience with law enforcement, his Miranda rights were given and his acknowledgment and understanding of them, his use of a very small amount of alcohol, his lack of intimidation, and his cooperativeness. The court concluded these factors weighed in favor of consent. The court also considered the setting in which the consent was obtained, including that Torkelsen dealt with different officers throughout the night; no evidence existed that law enforcement exerted intimidation or made promises to Torkelsen; Torkelsen was told he was not under arrest during the first interview, but he was not told he was free to leave; the first interview was conversational; Torkelsen was cooperative and consented to the officers’ requests; officers gave Torkelsen food and water; officers asked for Torkelsen’s consent multiple times, and Torkelsen gave consent at each request; and the second interview was focused on evidence found during the searches, but Torkelsen remained calm and cooperative and was not intimidated. The court also found that there were no grounds for any claims of officer misconduct during the interviews or that the officers were unreasonably coercive in attempting to get Torkelsen to cooperate with them. Based upon its detailed analysis, the court found Torkelsen voluntarily agreed to the interviews and his consent for the searches was voluntary based on the totality of the circumstances. We conclude there is sufficient competent evidence supporting the court’s findings and the court’s decision is not contrary to the manifest weight of the evidence.

[¶ 23] Although Torkelsen voluntarily consented to the interviews and searches of his camper and pickup, the inquiry does not end there because, according to our prior decision, the consent was preceded by illegal police action. Generally, evidence unlawfully seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule. State v. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. “Any evidence obtained as a result of illegally acquired evidence must [also] be suppressed as ‘fruit of the poisonous tree’.... ” State v. Gregg, 2000 ND 154, ¶ 39, 615 N.W.2d 515. However, evidence characterized as fruit of the poisonous tree may still be admitted if “it was not produced by exploiting the illegally acquired information.” Id. “This ‘unpoi-soning’ of the fruit may be achieved by the State through the use of the ‘independent-source exception,’ the ‘inevitable-discovery exception,’ or the ‘attenuation exception’ to the exclusionary rule.” Id. at ¶ 40.

[¶ 24] Under the attenuation exception, the challenged evidence should only be excluded if it is the product of illegal government activity. Evidence “is not the fruit of a poisonous tree simply because it would not have come to light without the illegal action of the police; rather, the proper inquiry is whether the evidence was obtained by exploitation of the illegal action or by means sufficiently distinguishable to purge the evidence of the primary taint.” Gregg, 2000 ND 154, ¶ 41, 615 N.W.2d 515. A defendant’s act of free will may purge the primary taint of an illegal stop; however, “ ‘voluntary consent to a search, preceded by an illegal police action, does not automatically purge the taint of an illegal detention.’ ” State v. Smith, 2005 ND 21, ¶ 26, 691 N.W.2d 203 (quoting United States v. Becker, 333 F.3d 858, 862 (8th Cir.2003)). The consent must be voluntary, but we must also consider the following factors to determine whether the taint was purged from the evidence seized: “ ‘(1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.’ ” Smith, at ¶ 26 (quoting Becker, 333 F.3d at 862). The evidence seized in the search will still be the fruit of the poisonous tree if the consent does not purge the evidence of the taint of the unlawful police activity. Smith, at ¶ 26.

[¶ 25] The district court applied the three factors from Smith and concluded the voluntary consent purged the taint of the illegal stop. The court found that the temporal proximity was rather short because the time between the stop and oral consent was about one hour, that the time between the stop and the written consent was about an hour and a half, that Torkel-sen was not free to leave and that he was not informed he could refuse the consent until the written consent was presented. However, the court said temporal proximity must not be considered alone, and the other factors favored finding the consent purged the taint of the illegal stop. The court found intervening circumstances existed, including: the 20 to 30-minute ride to Cando without interrogation, the arrival of a new officer who removed Torkelsen’s cuffs and had not detained Torkelsen, the lengthy periods of time he spent alone in the interview room, the Miranda warnings given, his consent to photographs of his body, the administration of alcohol testing by a different officer, and his awareness that he must submit his place of residence and vehicle to search at any time by his probation officer with or without a search warrant. The court concluded these factors could be considered intervening circumstances breaking the chain of events leading from the illegal stop to the consent for the searches. The court said the third and most important factor was the purpose and flagrancy of the official misconduct. In this case there was an absence of flagrant misconduct. The court found the officers’ misconduct in unlawfully stopping Torkelsen’s vehicle was not flagrant because there was no evidence of officer abuse or intimidation, no evidence of physical or mental harm, and no evidence the officers acted knowing the stop was illegal or improper. Although the court stated this was a close case, it concluded the taint of the illegal stop was purged and the evidence from the searches and evidence collected during Torkelsen’s interviews with law enforcement should not be suppressed.

[¶ 26] In this case, there is a short period of time between the illegal stop and the consent. However, the consent may be sufficient to purge the taint even with only a short time between the consent and the illegal police action if other circumstances indicate the consent was sufficiently an act of free will. See, e.g., United States v. Esquivel, 507 F.3d 1154, 1160 (8th Cir.2007) (consent was an act of free will and sufficiently purged the taint when consent was given approximately nine minutes after the defendant’s detention ceased being valid because there were other intervening circumstances and no official misconduct). Torkelsen’s vehicle was stopped at 1:26 p.m. Torkelsen’s first interview with police began at approximately 2:15 p.m., he consented to the searches of his pickup and camper during the interview, and he gave written consent at approximately 3:00 p.m. Torkelsen gave consent for the searches forty-five minutes to an hour and a half after the illegal stop, and he was detained during this time. Although the temporal proximity is short, the other factors indicate the consent was sufficiently an act of free will.

[¶ 27] Intervening circumstances can include telling a suspect he may refuse to consent to a search, advising the suspect of his Miranda rights, or changing the location with a new officer questioning the defendant when he is relaxed and composed. See Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Miranda warning alone may not break the taint, but it is a factor); United States v. Stark, 499 F.3d 72, 77 (1st Cir. 2007) (interrogation by a new officer in a new location when defendant is relaxed and composed is a significant intervening event); Becker, 333 F.3d at 862 (informing defendant of right to refuse to consent is an intervening event). Torkelsen had been read his Miranda rights, was told he was not under arrest, was informed he could refuse to consent to the searches, had been transported to a different location from where the unlawful police conduct occurred, was questioned by a different officer, and was relaxed, cooperative and complied with the officer’s requests. We conclude these facts constitute sufficient intervening circumstances.

[¶ 28] Some courts have concluded the purpose and flagrancy of the official misconduct is the most important factor “ ‘because it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.’ ” See Stark, 499 F.3d at 77 (quoting United States v. Reed, 349 F.3d 457, 464-65 (7th Cir.2003)). Some courts consider “whether [ ] the police used threatening or abusive tactics [and whether] [] the impropriety of the initial misconduct was obvious.” Stark, 499 F.3d at 77. Here, law enforcement did not use coercive or abusive tactics, and the stop of Torkelsen’s vehicle was not an obvious legal error. The district court found there was an absence of flagrant misconduct and there was no evidence the officers knew the stop was illegal. The evidence supports the court’s findings.

[¶ 29] The evidence supports the district court’s findings that Torkelsen voluntarily consented to the interview and searches, and we conclude Torkelsen’s voluntary consent was an independent cause of the discovery of the challenged evidence and purged the taint of the illegal stop. The district court did not err in admitting the evidence seized during the searches and Torkelsen’s statements to law enforcement.

B

[¶ 30] Torkelsen contends the district court erred in admitting the evidence seized during the nighttime search of his parents’ house. He claims the evidence should have been suppressed because there was not separate probable cause to justify authorizing a nighttime search and the court erred in applying the inevitable discovery doctrine after concluding there was not probable cause for the nighttime search and the good-faith exception did not apply.

[¶31] “An individual is only entitled to the protection of the exclusionary rule [and to challenge a search] if the individual’s own Fourth Amendment rights were violated and not the rights of a third party.” State v. Oien, 2006 ND 138, ¶ 8, 717 N.W.2d 593. An individual is entitled to claim the protections of the exclusionary rule if he has a reasonable expectation of privacy in the place searched. Id. “A guest generally has a reasonable expectation of privacy in the [host’s home].” Id. at ¶ 9. Torkelsen was at least a guest in his parents’ house. He often slept at his parents’ house and kept some of his belongings there. Torkelsen had a reasonable expectation of privacy in his parents’ house and, therefore, may challenge the search.

[¶ 32] Torkelsen concedes there was probable cause to issue a search warrant for his parents’ house, but argues there was not separate probable cause to issue a warrant for a nighttime search. Under N.D.R.Crim.P. 41(c)(1)(E), a warrant must be served in the daytime, “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” This Court has said reasonable cause for a nighttime search requires a separate showing of probable cause. State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233. The purpose of the rule “ ‘is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches.’ ” Id. (quoting State v. Schmeets, 278 N.W.2d 401, 410 (N.D.1979)). “Necessity for a nighttime search exists ‘where there is a reasonable possibility that the fruits, instrumentalities or evidence of crime sought would not be expected to be at the searched premises during the day or might be removed or dissipated if the search is delayed.’ ” See Roth v. State, 2007 ND 112, ¶ 22, 735 N.W.2d 882 (quoting State v. Richardson, 80 Hawai'i 1, 904 P.2d 886, 890 (1995)). The focus of a court’s decision whether to grant a request for a nighttime search must be upon the necessity for executing the warrant at a time other than the daytime. Roth, at ¶ 22. There are many circumstances under which there would be probable cause for a nighttime search, including when there is a showing that evidence sought may be quickly and easily disposed of. Fields, at ¶ 10. However, there must be some basis for believing the evidence will be destroyed without a nighttime search other than the fact the evidence exists. Id.

[¶ 33] In this case, Zachmeier applied for a search warrant and requested authorization for a nighttime search because “what we are investigating here is a serious crime — a justification can get rid of evidence. That parents can protect their kids and that might happen, and then the Torkelsens have on occasion posted substantial bonds for Steve Torkelsen to get him out of jail in the past. So, I would request a nighttime search warrant.” The issuing magistrate authorized a nighttime search and concluded probable cause existed because of the seriousness of the crime, because of the information that Torkel-sen’s parents might destroy evidence, and because of the homeowners’ withdrawal of their earlier consent to a search.

[¶ 34] Acting on Torkelsen’s motion to suppress, the district court concluded there was not probable cause to authorize a nighttime search:

“While the crime is serious, this court can find no case law which permits a nighttime search based upon seriousness of the crime. The officer also stated that a parent may destroy evidence to protect a child. There are no facts presented in this case to suggest that the Tor-kelsens had done so or would do so for their son. How could they destroy firearms, clothing, boots, and gas cans. The officer testified that he had no idea how the evidence would be destroyed and there was no mention that the items would be washed or cleaned by the parents.
“The vague history of posting a bond for then son does not justify a nighttime warrant. The parents were law abiding, elderly citizens and it is absurd to conclude that they would remove or destroy evidence based upon the death investigation. While they were aware that the Defendant had been charged with two drug offenses, he had not been charged with the death of the unidentified body. Based upon the hearing transcript, Agent Zachmeier did not meet the burden necessary to demonstrate the need for a nighttime warrant. On this record, there is no evidence to support the finding of probable cause for a nighttime warrant.”

[¶ 35] After concluding probable cause did not exist to issue a nighttime warrant, the district court considered whether the evidence must be suppressed or whether one of the exceptions to the exclusionary rule applied. The court considered both the good-faith exception and the inevitable discovery doctrine. The court concluded the good-faith exception did not apply because a reasonably well-trained officer would have known the nighttime warrant was deficient because it was based on clearly insufficient and inadequate reasons and would not have relied on it in executing the nighttime search. However, the court also concluded the evidence seized in the search of the parents’ residence was admissible under the inevitable discovery doctrine because the officers did not act in bad faith to accelerate the discovery of evidence and because the evidence would have inevitably been discovered based on the information law enforcement had about Torkelsen’s activities at his parents’ house, including the statements from witnesses about Torkelsen’s activities in the garage and alley areas of his parents’ residence.

[¶ 36] We agree with the district court that the evidence seized during the search of the parents’ house should not be suppressed; however, we conclude the court reached the correct result for the incorrect reason. See Roth, 2007 ND 112, ¶ 17, 735 N.W.2d 882. In reviewing probable cause determinations, doubtful or marginal cases are resolved in favor of the magistrate’s decision. Id. at ¶ 18. Although this is a close case, we conclude the district court erred in concluding there was not reasonable cause for a nighttime search.

[¶ 37] In United States v. Searp, 586 F.2d 1117 (6th Cir.1978), the defendant was a suspect in a robbery and officers searched his mother’s house, where he frequently stayed. The officers were aware the defendant was not at the house because he had fled the state, and the defendant’s mother refused to consent to the search. Id. at 1119. The police applied for a warrant, and the warrant was issued at 11:27 p.m. and was promptly executed. Id. Although officers did not request the warrant allow a nighttime search, the court said any judicial officer would have authorized a night search under the circumstances if one had been requested because the defendant’s- mother knew the police wanted to search her home to find evidence of a crime committed by her son and only an immediate search could prevent the possible destruction of the evidence sought. Id. at 1122. The court concluded there would have been reasonable cause to issue a nighttime warrant because there was “some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation.” Id. at 1121-22.

[¶ 38] In this case, there was reasonable cause for a nighttime search because there was a reasonable probability that the evidence sought would no longer be at the Torkelsens’ house if the search was delayed. After Torkelsen’s camper and pickup had been searched and he was taken into custody, law enforcement interviewed Torkelsen’s parents. During the interview, law enforcement informed Torkel-sen’s parents he had been arrested, a body matching Flaa’s description was found burning in a ditch near Torkelsen’s camper, Flaa had been staying with Torkelsen, a witness saw Torkelsen near the crime scene before law enforcement arrived, law enforcement was investigating whether Torkelsen was connected to the homicide although he had not been arrested for the murder yet, Torkelsen consented to searches of his camper and pickup, blood was found in the camper, Torkelsen said he had been at his parents house earlier in the day, and he said he had changed clothes at his parents’ house and left a pair of shoes there. Law enforcement requested Torkelsen’s parents’ consent to search their residence, and told Torkelsen’s parents they would like to search the residence for Torkelsen’s clothing, his shoes, items Torkelsen' may have thrown in the garbage, and anything else that may connect Torkelsen to the homicide. Torkel-sen’s parents consented to a search of their house, and law enforcement began the search, but Arthur Torkelsen later revoked his consent before officers had finished the search. Zachmeier requested a nighttime warrant because he was concerned Torkelsen’s parents might try to destroy evidence to protect their son. As the court concluded in Searp, 586 F.2d at 1122, it is reasonable to believe that parents who know law enforcement want to search their home for evidence of a crime their child may have committed could destroy possible evidence and a nighttime search may be necessary to prevent the destruction of that evidence. Torkelsen’s parents were aware their son was being investigated for committing a murder, they knew law enforcement believed there could be possible evidence in their house connecting their son to the murder, they knew what type of evidence law enforcement sought, and Arthur Torkelsen revoked his consent to search the house after a search had commenced. Although the house was placed under surveillance, an immediate search was the only way to prevent the possible destruction of evidence. Under these circumstances, there was a reasonable possibility that the evidence sought would not be in the Torkelsen’s residence or would be destroyed if the search was delayed, and therefore there was reasonable cause for a nighttime search.

[¶ 39] We conclude there was reasonable cause for a nighttime search and the district court did not err in allowing the admission of the evidence seized during the search of Torkelsen’s parents’ home. Because we conclude there was reasonable cause for the nighttime search, we do not need to consider whether the inevitable discovery doctrine would apply.

Ill

[¶ 40] Torkelsen argues the district court denied his constitutional right to represent himself. He contends that his request for the court to accept his attorney’s motion to withdraw as counsel and to allow him to ask the witnesses questions was a request to represent himself and that the court was required to inquire about his request and make findings about the basis of its denial.

[¶ 41] We review claims that a defendant’s constitutional rights were violated de novo. State v. Ochoa, 2004 ND 43, ¶ 15, 675 N.W.2d 161. A defendant has a right to counsel under the Sixth Amendment of the United States Constitution, and article I, section 12 of the North Dakota Constitution. Id. A defendant also has an implied right to represent himself under the Sixth Amendment. Id.) Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “Generally, the defendant must make a ‘knowing, intelligent, voluntary, and unequivocal request before a court may conclude he has waived his right to counsel and invoked his right to represent himself.’ ” Ochoa, at ¶ 16 (quoting Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.1994)). In order to represent himself, a defendant must “knowingly and intelligently” forgo the benefits associated with the right to counsel and “should be made aware of the dangers and disadvantages of self-representation.” Faretta, at 835, 95 S.Ct. 2525.

[¶42] The request for self-representation must be clear and unequivocal. See United States v. Edelmann, 458 F.3d 791, 808 (8th Cir.2006); Reese v. Nix, 942 F.2d 1276, 1280 (8th Cir.1991). Asserting the right to self-representation is a waiver of the right to counsel; therefore the defendant must clearly and unequivocally assert the right and must knowingly and intelligently choose self-representation. See Reese, at 1280. A defendant’s statement that he would rather represent himself may be equivocal if it is made in response to a court’s denial of a request for change in counsel, because it may be an impulsive, emotional response rather than clear and unequivocal invocation of the right to self-representation. Id. at 1281. This Court has said a request does not necessarily have to be unequivocal, but only when the defendant’s conduct rises to the level of a functional equivalent of a voluntary waiver. See State v. Fischer, 2008 ND 32, ¶¶ 21-23, 744 N.W.2d 760; State v. Holbach, 2007 ND 114, ¶ 11, 735 N.W.2d 862; State v. Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445 (pattern of obstructing the legal process); State v. Harmon, 1997 ND 233, ¶¶ 20-21, 575 N.W.2d 635 (continued requests for substitute counsel after having previous requests denied). “ ‘Courts should indulge every reasonable presumption against waiver[,]’ ” and any ambiguity should be resolved against a conclusion that the defendant waived his right to counsel and invoked his right to self-representation. Ochoa, 2004 ND 43, ¶ 18, 675 N.W.2d 161 (quoting State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984)). Whether a defendant has waived his right to counsel and asserted the right to represent himself “depends upon the facts and circumstances of each particular case, including the background, the experience, and the conduct of the accused.” Ochoa, at ¶ 16.

[¶ 43] Furthermore, the request must be timely, the defendant cannot use self-representation to disrupt and delay the proceedings, and the defendant must be able to knowingly and intelligently forgo the benefits associated with the right to counsel. Edelmann, 458 F.3d at 808. The right to self-representation is unqualified only if it is demanded before trial. See United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002); United States v. Wesley, 798 F.2d 1155 (8th Cir.1986). If the request for self-representation is not timely because it is made after the trial begins, it is within the court’s discretion to grant the request; however, the court must balance the defendant’s interests and the potential disruption and delay, and the court’s decision will not be reversed on appeal unless the court abused its discretion. Wesley, at 1156.

[¶ 44] In this case, Torkelsen’s attorney moved to withdraw as counsel prior to trial, but Torkelsen • did not request to represent himself prior to trial. Torkelsen claims he requested the right to represent himself on the fifth day of trial, during a discussion about Torkelsen’s defense strategy:

“THE COURT: Okay. Is there — Mr. Merrick, are there any other additional questions at this time that you wish to ask Mr. Causer or Mr. Steen or Mr. Keeney.
MR. MERRICK: No, Your Honor.
THE COURT: Okay.
THE DEFENDANT: Excuse me, Your Honor. If they don’t, I — I believe you haven’t ruled on his motion to withdraw as counsel. That’s still under advisement for the last six months.
THE COURT: Right.
THE DEFENDANT: I ask that now you do accept his motion to withdraw as counsel.
THE COURT: You’re really asking me to let your attorneys go—
THE DEFENDANT: These questions — he’s trying to tell you, he asks— he just asked you now when you asked him again, he said I don’t — he admits that Steen in one statement says in the law library and in another statement says in the cafeteria.
Well, in fact it wasn’t in the law library. It was in the — he says — Mr. Merrick says what is the significance of that. Well, the significance is he’s changing his story repeatedly. You’d think they’d have gotten one story and stuck with it, Your Honor. And I — I insist that either I alone sit here and be allowed to ask these questions so I’m not tugging on his sleeve and being ignored.
He said he wonders what the significance of asking Causer what this — if there’s any significance between Causer one story one or two or three miles, six or eight or ten minutes and — or 12 or— 12 miles — odd miles back to Cando to wash his pickup.
Now, either he’s going to ask him or I — or I’ll sit here and ask him. It will take me longer in between questions, but at least I’ll — there will be some thought put into each question.
THE COURT: Your request for counsel to be dismissed based on the motion— THE DEFENDANT: I—
THE COURT: — is denied. Counsel will continue to address the witnesses in the court in representing the defendant. And, Mr. Torkelsen, you — the same behavioral rules that I set forth yesterday will apply.”

[¶ 45] Torkelsen claims the district court erred in denying his request without inquiring whether he was waiving his right to counsel and without making any findings of fact about the basis of the denial. Torkelsen’s alleged waiver of his right to counsel and request to represent himself was equivocal. Torkelsen’s request must be viewed within the context of the situation. Torkelsen disagreed with how his attorney was questioning certain witnesses and his attorney’s trial strategy. Torkel-sen’s 'request was an impulsive, emotional response to his frustration with his attorney, rather than a clear and unequivocal invocation of the right to self-representation. See Reese, 942 F.2d at 1281. “[M]ore than an equivocal request for self-representation [is required] before [a court is obligated to] engage in a full-blown Faretta inquiry.” Ochoa, 2004 ND 43, ¶ 30, 675 N.W.2d 161. We conclude Torkelsen’s request was not an unequivocal request to represent himself, and therefore the court was not required to inquire into Torkel-sen’s wishés and did not abuse its discretion in denying his request. Torkelsen’s right to self-representation was not violated.

IV

[¶ 46] We conclude the district court did not err in denying Torkelsen’s motion to suppress the evidence seized during the searches of his camper, pickup, and parents’ house. We also conclude Torkelsen’s constitutional right to represent himself was not violated. We therefore affirm Torkelsen’s conviction.

[¶ 47] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.

SANDSTROM, Justice,

concurring m the result.

[¶ 48] This trial should never have been held. Steven Torkelsen’s original judgment of conviction should have been affirmed.

[¶ 49] The majority ruled that there was no reasonable suspicion to justify the stop of Torkelsen’s vehicle. Reasonable suspicion is a minimal burden easily satisfied in the record. See State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994) (The Fourth Amendment requires “some minimal level of objective justification” for making the stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). The reasonable suspicion fully explained in my dissenting opinion in State v. Torkelsen, 2006 ND 152, ¶¶ 20-37, 718 N.W.2d 22, is summarized here:

Torkelsen was seen at the crime scene shortly after an apparent homicide. He did not seem surprised by the sight of a burning body. He had a known history of violence and threatened violence. He failed to yield to approaching emergency vehicles. He was leaving the community where the crime had apparently been committed under circumstances that suggested flight. These factors taken together provided the officers with a reasonable suspicion to stop Torkelsen for questioning about an apparent homicide.

Id. at ¶ 37 (Sandstrom, J., dissenting).

[¶ 50] Dale V. Sandstrom


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2008 SD 56
    Sherwyn B. ZEPHIER, et al., Plaintiffs and Appellants, v. CATHOLIC DIOCESE OF SIOUX FALLS; Blue Cloud Abbey; Sisters of the Blessed Sacrament; and Oblate Sisters of the Blessed Sacrament, Defendants and Appellees.
    Nos. 24124, 24194.
    Supreme Court of South Dakota.
    Argued on Oct. 1, 2007.
    Decided June 25, 2008.

      Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Rapid City, South Dakota, Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Encino, California, Attorneys for plaintiffs and appellants.
    Jeremiah D. Murphy of Murphy, Gold-hammer & Prendergast, LLP, Sioux Falls, South Dakota, Charles Goldberg of Ro-thgerber Johnson <& Lyons, LLP, Denver, Colorado Eric V. Hall of Rothgerber Johnson & Lyons, LLP, Colorado Springs, Colorado, Attorneys for defendant and appel-lee Catholic Diocese.
    Eric Schulte of Davenport, Evans, Hur-witz & Smith, LLP, Sioux Falls, South Dakota, Robert Stich of Stich, Angelí, Kreidler & Dodge, PA, Minneapolis, Minnesota, Attorneys for defendant and appellee Blue Cloud Abbey.
    Michael J. Ford, Dyan J. Ebert, Heidi N. Thoennes of Quinlivan & Hughes, PA, St. Cloud, Minnesota, Attorneys for defendant and appellee Oblate Sisters of the Blessed Sacrament.
    Christopher W. Madsen, Thomas J. Welk of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee Sisters of the Blessed Sacrament.
   ZINTER, Justice.

[¶ 1.] Seventy-two former students of St. Paul’s School brought suit against four entities claiming that they were responsible for mental, physical and/or sexual abuse during the years 1947-1954 and 1958-1973. The circuit court granted summary judgment in favor of all defendants, concluding that a statute of limitations barred the claims. Thereafter, ten of the students moved to amend the complaint attempting to show a timely filing. Before the circuit court’s ruling on the motion to amend, nine of the students filed this appeal. Notwithstanding the filing of the appeal, the circuit court held a hearing on the merits and denied the motion to amend. The nine students now appeal the dismissal of their sex abuse claims and the denial of their motion to amend. We affirm in part, reverse in part, and remand.

I

[¶ 2.] The former students attended St. Paul’s School (School) in Marty, South Dakota, located on the Yankton Sioux Reservation. Students allege that the Catholic Diocese of Sioux Falls operated the School; and Blue Cloud Abbey, Sisters of the Blessed Sacrament, and the Oblate Sisters of the Blessed Sacrament provided teachers and staff. It is undisputed that in 1975, the School was closed as a Roman Catholic school and was relinquished to the tribal government of the Yankton Sioux Tribe. The following year, the School’s assets were transferred to the Marty Indian School Board, Inc. No claim is made against the Tribe or the Marty Indian School Board.

[¶ 3.] The complaint provides no specifics, such as the names of the alleged abusers, when and where the abuse occurred, or the nature of the students’ claimed injuries. After some discovery, Defendants moved for summary judgment on the sex abuse claims arguing that the statute of limitations had expired. The circuit court granted Defendants’ motion, concluding students did not present sufficient evidence that the “time the victim[s] discovered or reasonably should have discovered that the injury or condition was caused by the [abuse]” occurred within three years of commencing the suit as required in SDCL 26-10-25. The circuit court reasoned that Defendants’ initial showing reflected that the three-year statute had expired, and the students’ responsive affidavits failed to satisfy their burden of demonstrating a disputed issue of fact in avoidance of the statute of limitations defense. The court stated:

[A]s a matter of law, [Defendants] ha[ve] demonstrated that [students] have filed all their claims beyond the time allowed by ... 26-10-25 and, therefore, [students] have the burden of demonstrating that an exception to these statutes of limitations will excuse [their] untimely filing. Furthermore, the [c]ourt determines, as a matter of law, that [students] have failed to set forth specific facts in their Affidavits as required by SDCL 15-6-56(e) and have failed to present any evidence to support any exception to the applicable statute of limitations.

SDCL 26-10-25 is a “discovery” statute, and with respect to the students’ responsive showing regarding the discovery of their injuries, the circuit court elaborated:

The facts provided by the complaint, the interrogatory answers, depositions and affidavits are absolutely void of any specific information. The affidavits are boiler plate and generally set forth in conclusory fashion that the [students] discovered the condition resulting from the conduct within the last three years but does not detail specifically when the discovery was made; how the connection was made; and where this discovery took place. Because there is no specific factual information provided by the [students], SDCL 26-10-25 cannot provide an exception to the statute of limitations defense against the [students’] claims based on sexual abuse.

The circuit court finally concluded that fraudulent concealment and estoppel by duress were not supported by the record, and that estoppel by duress was not a viable legal theory in South Dakota. Because the court dismissed the students’ claims on the statute of limitations, it did not consider the Diocese’s arguments that it had no control, supervision, or official relationship with the School, and that the students’ claims are barred by the constitutional principle of separation of church and state. The circuit court also did not address the Diocese’s and Oblate Sisters’ argument that SDCL 26-10-25 applies only to perpetrators and not third party entities who employed the alleged perpetrators.

[¶ 4.] After entry of the circuit court’s order dismissing all claims, ten students moved to amend the complaint in an attempt to show a timely filing by setting forth more specific facts. Before the circuit court’s ruling on this motion to amend, nine students filed this appeal. Notwithstanding the appeal, the circuit court held a hearing on the merits and denied the motion to amend. The court did not consider the question of its jurisdiction once a notice of appeal had been filed.

[¶ 5.] The nine students now appeal raising two issues:

Whether the circuit court erred in granting Defendants’ motion for summary judgment; and
Whether the circuit court erred in denying the students’ motion for leave to amend the complaint.

II

[¶ 6.] “Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied.” Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. In addressing a motion for summary judgment, this Court views the evidence most favorably to the non-moving party and the burden of proof is on the moving party to show that there are no genuine issues of material fact. Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141. While we often distinguish between the moving and non-moving party in referring to the parties’ summary judgment burdens, the more precise inquiry looks to who will carry the burden of proof on the claim or defense at trial. Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).

Ill

[¶ 7.] The issue in this appeal is whether students commenced their actions within the time allowed by SDCL 26-10-25. That statute provides:

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

SDCL 26-10-25 (emphasis added).

[¶ 8.] As previously noted, the circuit court concluded that the students failed to carry their burden of establishing an exception to the statute of limitations. The court stated: Defendants “demonstrated that [students] have filed all their claims beyond the time allowed by ... [SDCL] 26-10-25 and, therefore, [students] have the burden of demonstrating that an exception to these statutes of limitations will excuse [their] untimely filing.” In reviewing this decision, we first discuss who had the summary judgment burden on this defense. We then determine whether the party with that burden established entitlement to summary judgment.

[¶ 9.] SDCL 26-10-25 is an affirmative defense, and the burden of proof to establish affirmative defenses is on the party who seeks to rely on it. Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959)). The burden of production, however, shifts. “In summary judgment proceedings, where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations!;.]” Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). See also Huron Center, Inc. v. Henry Carlson, Inc., 2002 SD 103, ¶11 n2, 650 N.W.2d 544, 548 (providing, “[o]nly when Defendants have presumptively established their defense by showing the action was brought beyond the statutory period ... does the burden shift to [Plaintiff] to demonstrate material facts in avoidance of the defense.”) (citing Wissink v. Van De Stroet, 1999 SD 92, ¶ 9, 598 N.W.2d 213, 215). We therefore turn to the question whether Defendants presumptively established that students brought their claims beyond the statutory period. This required a showing that the students knew of the abuse, or discovered or reasonably should have discovered that their injury or condition was caused by the abuse more than three years before they commenced suit, whichever is later.

[¶ 10.] The Defendants failed to make that showing. The only evidence Defendants provided at this stage of the summary judgment proceeding was that: students acknowledged that the abuse happened decades ago when the School was allegedly operated and controlled by Defendants; some students acknowledged in discovery that they did not claim repressed memory of the abuse; and- the School was transferred to the Tribe in 1975. Although these facts were sufficient to make a presumptive showing that some of the students had been aware of the abuse for more than three years preceding the suit, it did not show that all of the students were aware of the abuse for the requisite period. More importantly, Defendants must have also introduced evidence presumptively showing that the students discovered or reasonably should have discovered that their injury or condition was caused by the abuse more than three years before commencing the suit. In our view, Defendants’ showing of knowledge of the abuse, coupled with cessation of control of the School, did not presumptively establish that students also discovered or reasonably should have discovered that their injury or condition was caused by the abuse. As noted in Stratmeyer, 1997 SD 97, ¶ 13, 567 N.W.2d at 222, “[m]any children only realize years later the true significance of the abuse they endured, especially in cases where the molestation occurred at the hands of ... trusted individuals.” Furthermore, as we stated in One Star, 'discovering the injuries in and of itself will not suffice to commence the statutory period regarding discovery of the causal connection between the acts of abuse and the plaintiffs’ injuries. “Rather, there must be discovery of some tie linking the acts of abuse to the injury.” 2008 SD 55, ¶ 13, 752 N.W.2d at 675.

[¶ 11.] Because Defendants failed to make their initial presumptive showing that the students’ claims were not brought within the time allowed by the statute, the circuit court erred in shifting the burden to students to set forth specific facts to demonstrate their claims were timely. For the same reason, the sufficiency of the students’ responsive showing was immaterial at this stage of the summary judgment proceeding, and the circuit court erred in dismissing their claims.

[¶ 12.] There is, however, one student whose claim was correctly dismissed. Unlike the other eight students, Defendants made a presumptive showing that Orson Cuny was aware of the abuse and that his claimed injuries were causally related to the abuse more than three years before the suit was commenced. Cuny testified in his deposition that in the summer of 1982, he attended a treatment program at Sioux San Hospital in Rapid City, South Dakota to “seek help psychologically, spiritually.” He testified that during this psychological treatment, he “brought this abuse out and above and surfaced it.” He further testified that in 1984, he chose to bring the events of the abuse to the forefront to try to cope with them.

[¶ 13.] An analogous situation was considered in Frideres v. Schutz, 113 F.3d 897 (8th Cir.1997). In Frideres, the plaintiff had some memories of her childhood abuse, the last incident occurring in 1967. In 1982, she sought help from her family physician for depression, at which time the physician recommended that the plaintiff seek further professional help or try an antidepressant drug. In 1988, the plaintiff visited with her priest who also .encouraged her to seek professional help for the difficulties she was experiencing as a result of the abuse. The plaintiff did not file suit within the statutory period. The court applied the same discovery rule, which allows a plaintiff to bring suit within a prescribed period from the time one makes a connection between the abuse and the injuries. The Eighth Circuit concluded that given plaintiffs knowledge of her prior sexual abuse, and in light of her conversations with the priest and physician, she “had enough knowledge linking the abuse and the resultant injuries ... to put her on inquiry notice” of her cause of action. Id. at 899. The Frideres court explained:

We agree with Frideres that mere knowledge of abuse will not necessarily start the running of the limitations period in every case. In this case, however, Frideres had enough knowledge linking the abuse and the resultant injuries, as evidenced by her visits to her family physician and priest in search of advice, to put her on inquiry notice more than two years prior to the commencement of this action. As the Supreme Court of Iowa stated, “ ‘the statute of limitations begins to run when a plaintiff first becomes aware of facts that would prompt a reasonably prudent person to begin seeking information as to the problem and its cause.’ ” At that time, a person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Because Frideres remembered the abuse and was aware of enough of its effects to seek help more than two years prior to the commencement of her action, her action is time barred.

Id. (citations omitted).

[¶ 14.] We follow the same rule. In Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 10, 581 N.W.2d 510, 514, we stated that a statute of limitations ordinarily begins to run when a plaintiff either has “actual notice of a cause of action or is charged with notice,” and that “constructive notice is notice imputed by the law to a person not having actual notice.” Thus, one having actual notice of circumstances sufficient to put a prudent person on inquiry about a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself sufficient to start the running of the statute of limitations. Id. (citing SDCL 17-1-4). “Limitations periods will not abide indefinitely while those aggrieved discover all their damages.” Id. ¶ 11, 581 N.W.2d at 515. “Statutes of limitations begin to run when plaintiffs first become aware of facts prompting a reasonably prudent person to seek information about the problem and its cause.” Id. ¶ 13, 581 N.W.2d at 515. Consequently, as we noted in One Star, SDCL 26-10-25 “accrues when the plaintiff is put on inquiry notice of facts that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause.” 2008 SD 55, ¶ 18, 752 N.W.2d at 677.

[¶ 15.] In this case, Cuny’s knowledge of the abuse, coupled with his psychological treatment for his condition, was sufficient to establish constructive knowledge of the abuse and that his injury was caused by that abuse. He was therefore on inquiry notice and was required to seek out further information and pursue his claim following his discoveries in 1982. Cuny, however, failed to commence his action within three years of that time. Considering the evidence of Cuny’s knowledge and treatment, the circuit court correctly concluded that Defendants satisfied their presumptive showing that the statute of limitations had expired and the burden of identifying specific facts in avoidance of the statute shifted to Cuny. Conway, 487 N.W.2d at 23. Furthermore, the circuit court correctly concluded that Cuny’s nonspecific, conclusionary, and boilerplate responsive affidavit was, for the reasons explained in n2, supra, insufficient to prevent summary judgment against him.

[¶ 16.] Cuny claims that his cause of action was fraudulently- concealed by the Defendants. This Court has recognized fraudulent concealment as an implied exception to the statute of limitations, which acts to toll the statute of limitations until the cause of action is discovered or might have been discovered by the exercise of diligence. One Star, 2008 SD 55, ¶ 34, 752 N.W.2d at 681 (citing Hinkle v. Hargens, 76 S.D. 520, 524, 81 N.W.2d 888, 890 (1957)). Fraudulent concealment does not, however, toll the statute of limitations, no matter the nature of the concealment if a plaintiff is already on notice of facts sufficient to give rise to a claim. Id., ¶ 35, 752 N.W.2d at 682-83. In this case, there is no dispute that Cuny knew of the operative facts regarding the alleged abuse and his current claimed condition. Therefore, Defendants could not have fraudulently concealed this cause of action by affirmative representation or silence.

[¶ 17.] Cuny also asserts tolling of the statute of limitations under the equitable theory of estoppel by duress. He acknowledges that South Dakota has not recognized this exception to the statute of limitations. For purposes of this case, however, we may assume without deciding that the exception exists because Cuny did not make the responsive summary judgment showing necessary to establish entitlement to the exception. Where it has been adopted, the exception generally requires a showing that the duress be continuous. See Overall v. Estate of Klotz, 52 F.3d 398, 404 (2nd Cir.1995), noting that a plaintiff must “demonstrate some threats or abuse during the limitations period” for duress tolling to be appropriate. See also Rakes v. United States, 442 F.3d 7, 26 (1st Cir.2006) (requiring plaintiff to demonstrate that duress was continuous before tolling available); Murphy v. Merzbacher, 346 Md. 525, 697 A.2d 861, 869-70 (1997) (rejecting claim of duress because there was absolutely no evidence that the defendant made any threats to the victims or engaged in any overt acts towards them for over twenty years prior to the commencement of the litigation).

[¶ 18.] In this case, Cuny identified no facts suggesting that any threats continued during the thirty years after he left the School. Consequently, even if we recognized the exception, he did not make the showing necessary to satisfy estoppel by duress.

IV

[¶ 19.] Diocese argues that even if the statute of limitations was incorrectly applied at this point in the proceedings, the Diocese should be dismissed because it had no control or supervision over the School. Diocese also argues that its religious relationship with the School precludes intervention by a civil court because court involvement would result in an unlawful entanglement between church and state. Diocese and Oblate Sisters finally argue that SDCL 26-10-25 applies only to perpetrators of sex abuse and not third party entities who may only be vicariously responsible on theories other than those involving intentional acts.

[¶ 20.] The circuit court granted summary judgment solely on the statute of limitations, and it declined to address these additional issues. Because we have “reversed summary judgment on the issue of the statute of limitations, we need not decide th[ese] issue[s] now.” Williams v. Maulis, 2003 SD 138, ¶28, 672 N.W.2d 702, 708. Rather, they “[are] better left to the trial court.” Id. See also Aberdeen Prod. Credit Ass’n v. Redfield Livestock Auction, Inc., 379 N.W.2d 829, 832-33 (S.D.1985) (providing, “[s]ince the circuit court ... granted summary judgment to [defendants], these questions involve issues of fact which were not reached. As an appellate court, we are without jurisdiction to determine issues of fact ... except where facts are undisputed and such that only one conclusion can be drawn.”). Considering the factual underpinnings of these remaining arguments, we leave them for the circuit court on remand.

V

[¶ 21.] Students finally argue that the circuit court erred in denying their motion for leave to amend the complaint to set forth more specific allegations of the abuse. The circuit court did not consider this motion until after it entered its final judgment dismissing all claims and after the nine students appealed that judgment to this Court. Although such an appeal generally deprives the circuit court of jurisdiction to consider further substantive matters, the circuit court held a hearing on the students’ motion and determined that there was no basis to amend, their complaint after a final judgment had been issued.

[¶ 22.] We do not reach the circuit court’s analysis because it did not have jurisdiction to act upon the motion to amend. “An appeal from a judgment or order strips the trial court of power over the subject matter of the judgment or order, and this Court has jurisdiction until the appeal is decided.” Matter of Hoffman, 2002 SD 129, ¶ 17, 653 N.W.2d 94, 100.

VI

[¶ 23.] Because Defendants did not meet their presumptive burden of initially showing that eight of the students filed their claim beyond the statute of limitations period, the circuit court erred in shifting the burden to students and in considering the sufficiency of the students’ responsive showing. Therefore, with the exception of Cuny, the circuit court’s dismissal is reversed. The case of the remaining eight students is remanded for further proceedings consistent with this opinion.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . The circuit court dismissed all of the non-sex abuse claims, concluding that students failed to timely commence their suit on those claims in accordance with the personal injury statute of limitations in SDCL 15-2-14(3) (1984). That ruling has not been appealed.

      . The circuit court's observation of the students' responsive showing was correct. These students, like the majority of the seventy-two plaintiffs in this case, submitted nearly identical affidavits resisting summary judgment. Only one affidavit was dated, and all contained the identical factual averments as the plaintiffs in One Star v. St. Francis Mission, 2008 SD 55, ¶ 22, 752 N.W.2d 668. Other than disclosing the students' different ages when the alleged abuse occurred, the affidavits are wholly conclusionary. Every student merely alleged the identical factual assertion that "[s]ince I have been involved in this lawsuit I have had discussion with other victims of the abuse. As a result many memories have been revived and some abuse events recalled for the first time by me and I am now for the first time aware of the many altering affects that the abuse has had on me.” The affidavits provide no facts about the abuse; no facts about the nature of the alleged "altering affects”; no facts relating where and when the discussions occurred or who was present during those discussions; or any specifics about the discussions. The affidavits declared that "additional specifics surrounding the abuse will be set forth in more detail in my deposition, when it is taken in this case or when I testify at trial in this case.”
      This type of undated, identical, boilerplate affidavit is inadequate to meet the requirements of SDCL 15-6-56(e). See Baatz v. Arrow Bar, 452 N.W.2d 138, 140 (S.D.1990) (stating: "Mere allegations that are devoid of specific facts will not prevent the issuance of summary judgment.”); Casazza v. State, 2000 SD 120, ¶ 14, 616 N.W.2d 872, 876 (noting, "[u]nder SDCL 15-6-56(e), the opposing party [must] be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.” Even though "we believe the actions alleged against Defendant would be deplorable, our feelings for what Plaintiff possibly has gone through should not override our obligations on this appeal.”).
      Nevertheless, as is discussed hereinafter, the students’ failure to respond with legally sufficient affidavits is of no consequence because the Defendants' showing in support of their motion for summary judgment was insufficient to shift the burden to students to specify facts supporting avoidance of the statute of limitations.

      . We recognized this distinction in Bordeaux, stating, “those resisting summary judgment must show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” Bordeaux, ¶ 14, 707 N.W.2d at 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted)).

      . At one point in these proceedings, the circuit court stated that SDCL 26-10-25 was an exception to the general assault and personal injury statutes of limitations, and as an exception, the students had the initial burden of proof. SDCL 26-10-25 is not an exception to the general assault and personal injury statutes of limitations. Neither the title of the act nor the body of the enactment creating this statute suggest that it was an exception to other statutes of limitations. See 1991 SD Sess Laws ch 219 § 1. The circuit court, however, ultimately changed its view of SDCL 26-10-25. The court correctly concluded that Defendants carried the initial burden of presumptively showing that the students' claims were brought beyond the requirements of SDCL 26-10-25, and students only had the responsive burden of demonstrating an exception to this statute. See supra ¶ 3.
      Defendants Blue Cloud Abbey and Oblate Sisters of the Blessed Sacrament also argue that SDCL 26-10-25 is not the applicable statute of limitations because that statute, enacted in 1991, did not exist at the time of the alleged abuse. Therefore, they assert that the statutes of limitations for personal injury and intentional torts apply, and the students’ claims are time-barred and cannot be revived. We held to the contrary in Stratmeyer v. Strat-meyer, concluding that the statute applied retrospectively, further stating that "[i]t is obvious from a plain reading of SDCL 26-10-25 ... that the Legislature intended SDCL 26-10-25 to apply to all acts of intentional childhood sexual abuse conduct.” 1997 SD 97, ¶ 15, 567 N.W.2d 220, 223.

      . Other cases that have recognized some form of the exception include Bank of Penfield v. Colclough, 154 Ga. 222, 114 S.E. 33 (1922) and Ateeq v. Najor, 15 Cal.App.4th 1351, 19 Cal.Rptr.2d 320 (1993).