text:
    2000 SD 106
    In re REQUEST OF GOVERNOR William J. JANKLOW for an Advisory Opinion Concerning the Further Interpretation of South Dakota Constitution Article IV, Section 4.
    No. 21535.
    Supreme Court of South Dakota.
    Request Received May 30, 2000.
    Original Proceeding Decided Aug. 9, 2000.
   Advisory Opinion

TO HIS EXCELLENCY, WILLIAM J. JANKLOW, THE GOVERNOR OF THE STATE OF SOUTH DAKOTA.

[¶ 1.] Pursuant to Article V, § 5 of the South Dakota Constitution, you have requested an opinion of the Supreme Court on important questions of law concerning provisions in Article IV, § 4 of the South Dakota Constitution as it relates to the delivery of gubernatorial vetoes. In In Re Janklow, 1999 SD 27, ¶ 1, 589 N.W.2d 624, 625, we found a request for an advisory opinion on the time limits in this same section constituted a “solemn occasion” warranting issuance of the opinion. We reach a like conclusion here.

[¶ 2.] Article IV, § 4 provides in pertinent part:

Whenever the Legislature is in session, any bill presented to the Governor for signature shall become law when the Governor signs the bill or fails to veto the bill within five days of presentation. A vetoed bill shall be returned by the Governor to the Legislature together with his objections within five days of presentation if the Legislature is in session or upon the reconvening of the Legislature from a recess ...
Whenever a bill has been presented to the Governor and the Legislature has adjourned or recessed within five days from presentation, the bill shall become law when the Governor signs the bill or fails to veto it within fifteen days after such adjournment or recess.

In Janklow, 1999 SD 27 at ¶ 7, 589 N.W.2d at 627, we held:

that the five-day time period provided in Article IV, § 4 of the South Dakota Constitution means five calendar days, and does not provide for the exclusion of Sundays or legal holidays from the computation of this time period. [The Court further joined] the jurisdictions holding with the general rule, that the day of presentment is to be excluded from computation while the last day is to be included.

[¶ 3.] In view of our holding in Janklow, you have now asked the following questions regarding the further interpretation of Article IV, § 4:

1. Because the Constitution, Article IV, Section 4, uses specific words and phrases regarding when vetoes can be
delivered, what do the following words and phrases mean:
a) “in session”
b) “recess”
c) “adjourned or recessed”
d) “adjournment”
2. Because the Constitution, Article IV, § 4, requires delivery of a veto message and bill to the Legislature, when and how can the Governor deliver veto messages and bills to the Legislature during recesses and adjournments, at night, over weekends, during national holidays, and during the fifteen day break before the final legislative day?
3. Because the Constitution, Article IV, § 4, requires delivery of a veto message and bill to the Legislature, who should receive the veto message and bill from the Governor to satisfy this requirement during recesses and adjournments, at night, over weekends, during national holidays, and during ' the fifteen day break before the final legislative day?

Standard of Review

[¶ 4.] “ ‘When words in a constitutional provision are clear and unambiguous, they are to be given their natural, usual meaning and are to be understood in the sense in which they are popularly employed.’ ” Janklow, 1999 SD 27 at ¶ 5, 589 N.W.2d at 626 (quoting Poppen v. Walker, 520 N.W.2d 238, 242 (S.D.1994)). However, a constitutional provision is ambiguous when its language is reasonably capable of being understood in more than one sense. See Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (statute is ambiguous when it is reasonably capable of being understood in more than one sense); State v. Hagerty, 580 N.W.2d 139, 143 (N.D.1998)(in interpreting constitutional sections, courts apply general principles of statutory construction); Hagerty, 580 N.W.2d at 145 (ambiguity exists when good arguments can be made for two contrary positions about the meaning of language in state constitution).

Ambiguities in Article IV, § 4

[¶ 5.] The first two paragraphs of Article TV, § 4 do contain some facial ambiguities that lead to the questions that have been presented. The plain language of the first paragraph gives the Governor five days from the presentation of a bill to veto it; otherwise, it becomes law whether the Governor signs it or not. To veto the bill, the Governor must return it to the Legislature within five days of presentation “if the Legislature is in session or upon the reconvening of the Legislature from a recess.” Under paragraph two, however, if the Legislature has “adjourned or recessed” within five days of a bill’s presentation, the Governor has fifteen days after the “adjournment or recess” to veto the bill or it becomes law whether the Governor signs it or not. The use of the term “recess” in both paragraphs one and two leads to obvious confusion over the precise number of days the Governor has to veto a bill if the Legislature adjourns or recesses after presenting it to the Governor, e.g., if the Legislature presents the Governor with a bill and then recesses for more than five days, but less than fifteen days, must the Governor return the bill immediately when the Legislature reconvenes or can the Governor wait until the fifteenth day after the recess?

Clarification of Ambiguities in Article IV, § 4

[¶ 6.] Some of the confusion in Article IV, § 4 can be alleviated with a careful reading of its first two paragraphs and with resort to other provisions of the constitution impacting on the meaning of terms such as “in session” and “recess.” See South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 696 (S.D.1981) (in construing a constitutional provision the court must give regard to the whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions).

[¶ 7.] Pursuant to South Dakota Constitution Article III, § 7, the Legislature must convene at “12 o’clock m.” on “the second Tuesday of January.” Under Article III, § 6, “regular session[s]” in odd-numbered years then continue for a period not to exceed forty legislative days which exclude Sundays, holidays and legislative recesses. “[R]egular session[s]” in even-numbered years may not exceed thirty-five legislative days which, again, exclude Sundays, holidays and legislative recesses. The constitution itself does not prescribe the duration or hours of a “legislative day.” However, it is generally held that a “legislative day can be terminated only by an adjournment or some actual dispersing of the assembled membership amounting to the same thing.” 81A CJS States § 50 (1977). While authorities appear to refer to breaks between legislative days as both “adjournments” or “recesses” (see id,.), the more appropriate term in this context is a “recess.” As explained in 81A CJS States § 50 (1977):

A recess is interlocutory and not final in character, and it marks an interval of suspension of business only during a sitting and is not the equivalent of an adjournment or dissolution of the sitting at which it is taken. A recess operates to continue the assembly in session pursuant to its original convocation but with the interposition of an interval in its program of parliamentary business during which the membership must remain within call of the presiding officers and are not permitted to disperse, so that they may remain available to be called to order for resumption of parliamentary business when the period agreed on for recess has expired.
One single legislative session may be interrupted by recesses and may validly continue thereafter as long as the recesses can reasonably be said to be taken for a proper legislative purpose. Adjournment of both houses of the legislature with the express provision that the adjournment is only until a specified date does not operate to dissolve the session of the legislature, but it constitutes a recess, (emphasis added).

Meaning of Paragraph One of Article IY, § 4

[¶ 8.] Applying the foregoing principles to Article IV, § 4 yields certain conclusions responsive your inquiry. It is apparent that the first paragraph of the provision is devoted to executive action on bills when the Legislature is “in session.” Since the legislative “sessions” defined in the constitution are the alternating thirty-five and forty day sessions beginning in January of each year, the term “in session” refers to these annual sessions. Further, because the term “recess” generally refers to interlocutory and not final adjournments during a legislative session, the term “recess” in paragraph one refers to the Legislature’s daily or other periodic recesses during the course of a session.

[¶ 9.] Under this reasoning and this Court’s holding in Janklow, 1999 SD 27 at ¶ 7, 589 N.W.2d at 626-27, the Governor has five calendar days from the date of presentation of a bill to veto it and prevent it from becoming law. To veto the bill, the Governor must return it to the Legislature within the five calendar days “if the Legislature is in session.” However, if the Legislature recesses during these five days and thereby prevents the Governor from making a timely return of the vetoed bill, the Governor may still make a timely return “upon the reconvening of the Legislature” from that recess. Thus, one might envision a scenario where the Governor has until midnight on the fifth day after presentation to veto a bill, but the Legislature has recessed by the time of the Governor’s exercise of his veto authority. Since the recess prevents the Governor from making a timely return of the vetoed bill, paragraph one permits the Governor to return the bill upon the reconvening of the Legislature from the recess, i.e., on the next legislative day of the session.

Meaning of Paragraph Two of Article IV, § 4

[¶ 10.] The interpretation of paragraph two of § 4 presents a more complex problem because of its duplicitous use of the term “recess.” Nevertheless, it is notable that, in contrast with paragraph one, paragraph two makes no reference to executive action on bills while the Legislature is in session. Rather, the entire paragraph is addressed to executive action on a bill after the Legislature has “adjourned or recessed.” The use of the terminology “recess” in conjunction with the term “adjourned” in this context suggests that the paragraph contemplates executive action after the final recess or adjournment of a legislative session. Such a conclusion is in accord with the drafting history of Article IV, § 4. See Janklow, 1999 SD 27 at ¶ 5, 589 N.W.2d at 626 (if a term in constitution is unclear, the Court may look to the intent of the drafting body). As originally proposed, Article IV, § 4 was based upon § 4.16 of Article IV of the Model State Constitution. See Official Documents of the Constitutional Revision Commission, Commission Document No. 6, Executive Department — Article IV, pp. 47-48 (August 31, 1970). In a memo to the Constitutional Revision Commission concerning the proposal it was specifically pointed out that § 4.16 of the model document would provide for a shorter period for the Governor to act on bills “during session” and for a longer period “after session.” See id. While § 4.16 went through substantial evolution before becoming Article IV, § 4, each draft of the provision retained this concept and a further review of the Revision Commission Minutes and Documents fails to reveal any criticism of it or intent to change it.

[¶ 11.] It follows from the above that the terms “adjourned or recessed” and “adjournment or recess” in paragraph two of Article IV, § 4 refer to the Legislature’s adjournment or recess at the close of a legislative session or what is typically referred to as its adjournment sine die. See Black’s Law Dictionary 1242 (5th ed 1979)(“sine die” defined as “[a] final adjournment”). Under this interpretation, when the Legislature presents the Governor with a bill and then adjourns sine die within five days of its presentation, the Governor has fifteen days after the adjournment to veto it and thereby prevent it frc?m becoming law.

Conclusions

[¶ 12.] Based upon the foregoing, we answer the questions you have presented as follows. First, with regard to your first question, the term “in session” in paragraph one of Article IV, § 4 of the South Dakota Constitution means the regular course of a thirty-five or forty day legislative session. The term “recess” in the same paragraph means the Legislature’s daily or other periodic recesses during the course of a session. The terms “adjourned or recessed” and “adjournment” in paragraph two of Article IV, § 4 mean the Legislature’s final adjournment at the close of a legislative session.

[¶ 13.] Second, with regard to your question two and the means the Governor must use to deliver veto messages and bills during recesses, adjournments, at night, over weekends, during' national holidays and during the fifteen day break before the final legislative day, there is no necessity for such delivery. As mentioned above, if a recess during session operates to prevent the Governor from making a timely return of a vetoed bill, paragraph one of Article IV, § 4 permits the Governor to make a timely return of the bill “upon the reconvening of the Legislature from [the] recess.” As for delivery at night, over weekends, during national holidays or during the fifteen day break, the Legislature must stand in recess during these intervals in order to bring the preceding legislative day to an end. Accordingly, paragraph one would again allow a return to be made upon the reconvening of the Legislature from such a recess.

[¶ 14.] Third, with regard to your question three concerning who should receive a veto message from the Governor in order to satisfy the requirement in Article IV, § 4 that vetoed bills be returned to “the Legislature,” the Legislature has itself assigned this responsibility to “the secretary of the senate or chief clerk of the house, whichever was the house of origin[.]” See SDCL 2-7-20.2. The only exception is for bills presented to the Governor at such time as to deny the Governor his full five days to consider them and return any vetoed bills to the Legislature before its final adjournment. In this instance, the Legislature has delegated responsibility for receiving any veto messages during the fifteen days after adjournment to the Secretary of State. See SDCL 2-7-20.3. We do not here pass upon the propriety of the Legislature’s delegation of this legislative function to a constitutional officer unaffiliated with the Legislature.

[¶ 15.] Respectfully submitted this 9th day of August, 2000

Robert A. Miller Chief Justice Robert A. Miller

Robert A. Amundson Justice Robert A. Amundson

John K. Konenkamp Justice John K. Konenkamp

David Gilbertson Justice David Gilbertson

SABERS, Justice

dissenting.

[¶ 16.] The majority has not answered that portion of question TWO relating to the “How” or “Means” the Governor must use for delivery. In fact, ¶ 13 of the opinion provides “there is no necessity for such delivery.” In this respect, I would simply advise that the “means” includes all appropriate delivery, including electronic, facsimile transmission and the more customary or traditional means of delivery.

[¶ 17.] It is obvious that the Legislature can not shorten the Governor’s time frame for delivery or service by their actions or inactions. Accordingly, all other questions need not be addressed or answered at this time. In fact, it could be hazardous to do so in view of the fact that it is impossible to envision all possible scenarios that could arise with regard to the return of vetoed bills.

Richard W. Sabers Justice Richard W. Sabers

      . This rule is qualified by the general rule that the end of a legislative session cannot be extended by devices such as stopping the clock. See 72 Am.Jur.2d States, Territories, and Dependencies § 57 (1974):
      Where the constitution provides that a legislative session is not to exceed a designated number of days, unless extended by the concurrence of two-thirds of the members of each house, it has been held that the session terminates by operation of law at midnight on the last day, and that an act on which the vote was taken after midnight is void. The device of stopping the clock does not affect this result.

      . The operation of Article IV, § 4, if any, with regard to special legislative sessions is beyond the scope of the Governor’s inquiry and is not analyzed here.


source: Caselaw Access Project

author: GILBERTSON, Justice. SABERS, Justice AMUNDSON, Justice

license: Public Domain

text:
    2000 SD 109
    STATE of South Dakota, Plaintiff and Appellee, v. Edward Louis VOCU, Defendant and Appellant.
    No. 20989.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 29, 1999.
    Decided Aug. 16, 2000.

      Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, Attorneys for plaintiff and appel-lee.
    Arnold D. Laubach, Jr., Office of Public Defender, Rapid City, Attorneys for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] Edward Louis Vocu was found guilty of possession of a controlled substance, a Class 5 felony, possession of less than one-half pound of marijuana, a Class 1 misdemeanor, and possession of drug paraphernalia, a Class 2 misdemeanor. We affirm.

FACTS

[¶ 2.] When Highway Patrol Trooper Boersma spotted Vocu’s pickup traveling on a Rapid City street on May 28, 1998, he knew that Vocu was suspected of drug trafficking, might be involved in it that day, and possibly kept drugs in his vehicle. Boersma ran a license check and discovered Voeu’s driver’s license had expired. He also noticed the pickup’s rear license plate light was inoperative.

[¶ 3.] Trooper Boersma stopped the pickup and approached the driver. Vocu identified himself by producing his expired South Dakota driver’s license. He was ticketed for driving without a valid driver’s license.

[¶ 4.] Because Vocu did not have a valid driver’s license Trooper Boersma asked him to post a seventy-five dollar bond. When Vocu was unable to post the bond, Boersma ordered him transported to jail and booked. While at the jail Vocu was interviewed by DCI agents and read his Miranda rights. Vocu waived his Miranda rights, made statements to the officers to the effect he had drug paraphernalia at his residence and consented to a search of that residence. The subsequent search yielded a marijuana pipe with residue and a scale with methamphetamine residue.

[¶ 5.] After his arrest, Vocu filed a motion to suppress the results of this search, arguing that SDCL 32-33-2 governed his stop and required Trooper Boersma to allow Vocu to sign the “promise to appear” portion of the uniform traffic ticket and then be released. The trial court concluded:

4. Because Vocu was not able to provide Trooper Boersma with a valid drivers license, Trooper Boersma was not required by SDCL 32-33-2 to immediately issue a summons and notice of time and place to appear and release Vocu at the scene of the traffic stop. Trooper Boersma validly required that Vocu post a bond for his release.
5. Because Vocu did not have enough money to post the required bond, Trooper Boersma validly required Vocu to go to jail, where he would be required to post bond after seeing the nearest or most available magistrate.
6. Vocu, by being taken to the Pennington County jail, was not illegally detained. His subsequent consent and any statements made in the interview at the jail was [sic] not tainted by an illegal detention.

ISSUE

[¶ 6.] Did the trial court err when it denied Vocu’s motion to suppress?

DISCUSSION

[¶ 7.] Vocu and the State agree that his offense of driving with an expired license is a violation of SDCL 32-12-22 that provides:

No person, except those expressly exempted in §§ 32-12-22.1 to 32-12-28, inclusive, shall drive any motor vehicle upon a highway in this state unless such person has a valid license as an operator under the provisions of this chapter. Any person convicted for a violation of this section shall be guilty of a Class 2 misdemeanor.

[¶ 8.] Accordingly, SDCL 23A-3-2 authorized Trooper Boersma to arrest Vocu. That statute provides, in part:

A law enforcement officer may, without a warrant, arrest a person:
(1) For a public offense, other than a petty offense, committed or attempted in his presence!.]

[¶ 9.] Vocu contends, however, that SDCL 32-33-2 required Trooper Boersma to release Vocu from custody after he signed the written promise to appear. SDCL 32-33-2 provides:

Except as otherwise specifically provided, whenever a person is arrested for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall take the name and address of the person and the license number of his motor vehicle and driver’s license and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in the summons or notice. The time shall be at least five days after the arrest unless the person arrested demands an earlier hearing. The arresting officer shall upon the person’s written promise to appear, release him from custody. Any person refusing to give a written promise to appear shall be taken immediately by the arresting officer before the nearest or most accessible magistrate. Any person who intentionally violates his written promise to appear is guilty of a Class 2 misdemeanor regardless of the disposition of the charge upon which he was originally arrested. A nonresident arrested for a violation of any provision of this title may be required to post bond in the amount set forth on the fine and bond schedule provided by the presiding circuit court judge, or in an amount set by a magistrate or judge for that offense, before being released from custody, (emphasis added).

[¶ 10.] Under SDCL 32-33-2 Vocu had to produce his name and address, the license number of the motor vehicle he was driving, and his driver’s license before he could be released upon his promise to appear. While Vocu produced what he characterizes as an expired driver’s license, he was unable to produce what SDCL 32-33-2 requires, a valid license authorizing him to drive a motor vehicle upon South Dakota highways. SDCL 32-33-2 does not recognize non-valid driver’s licenses as being in compliance with the statute. For purposes of compliance with this statute, an expired, suspended,. revoked, altered or forged driver’s license is the same as no driver’s license. Vocu was not authorized tó drive his vehicle. SDCL 32-12-22. Trooper Boersma would have violated his duty as a law enforcement officer had he allowed Vocu to sign a promise to appear and simply drive away. To hold otherwise would create an absurd and unreasonable result that the legislature did not intend. Dahn v. Trownsell, 1998 SD 36, 576 N.W.2d 535. See also, State v. Brassfield, 2000 SD 110, ¶ 15, 615 N.W.2d 628, 632.

[¶ 11.] Trooper Boersma had the authority to bring Vocu to jail under SDCL 23A-3-2 rather than releasing him pursuant to SDCL 32-33-2. Vocu then waived his Miranda rights and gave permission to search his apartment. Consequently, the trial court did not err by denying Vocu’s motion to suppress. State v. Smith, 1999 SD 83, 599 N.W.2d 344.

[¶ 12.] Affirmed.

[¶ 13.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 14.] SABERS, and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 15.] I dissent for the reasons set forth in Justice Amundson’s dissent and those set forth in my dissent in State v. Brassfield, 2000 SD 110, 615 N.W.2d 628.

AMUNDSON, Justice

(dissenting).

[¶ 16.] I respectfully dissent.

[¶ 17.] In the present case, Vocu and the state agree that his offense of driving with an expired license is a violation of SDCL 32-12-22, which provides:

No person, except those expressly exempted in §§ 32-12-22.1 to 32-12-28, inclusive, shall drive any motor vehicle upon a highway in this state unless such person has a valid license as an operator under the provisions of this chapter. Any person convicted for a violation of this section shall be guilty of a Class 2 misdemeanor.

[¶ 18.] Generally, law enforcement officers may arrest a person without a warrant “[fjor a public offense, other than a petty offense, committed or attempted in his presence.” See SDCL 23A-3-2(l) (1998). When a person is arrested for a violation of SDCL Title 32 which is punishable as a misdemeanor, SDCL 32-33-2 applies “[e]xcept as otherwise specifically provided.” The statute provides:

Except as otherwise specifically provided, whenever a person is arrested for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall take the name and address of the person and the license number of his motor vehicle and driver’s license and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in the summons or notice. The time shall be at least five days after the arrest unless the person arrested demands an earlier hearing. The arresting officer shall upon the person’s written promise to appear, release him from custody. Any person refusing to give a written promise to appear shall be taken immediately by the arresting officer before the nearest or most accessible magistrate. Any person who intentionally violates his written promise to appear is guilty of a Class 2 misdemeanor regardless of the disposition of the charge upon which he was originally arrested. A nonresident arrested for a violation of any provision of this title may be required to post bond in the amount set forth on the fine and bond schedule provided by the presiding circuit court judge, or in an amount set by a magistrate or judge for that offense, before being released from custody.

SDCL 32-33-2 (1998). This procedure is consistent with petty offense motor vehicle violations.

[¶ 19.] SDCL Chapter 32-33 contains two statutes delineating exceptions to SDCL 32-33-2. The first, SDCL 32-33-2.1, provides:

Sections 32-33-2 and 32-33-3 do not apply to any person arrested and charged with a violation of § 32-22-16 or 32-22-21. The arresting officer may take the person immediately before the nearest and most accessible magistrate.

The violations referred to in these sections are Class 2 misdemeanors dealing with the maximum weight of vehicles and the maximum weight of vehicles equipped with pneumatic tires. See SDCL 32-22-16 and 32-22-21.

[¶ 20.] The second statute dealing with exceptions to SDCL 32-33-2 is SDCL 32-33^1, which states: SDCL 32-12-65(1) is specifically excluded from SDCL 32-33-2. Under SDCL 32-12-65(1),

Sections 32-33-2 and 32-33-3 do not apply to any person arrested and charged with an offense causing or contributing to an accident resulting'in injury or death to any person, nor to any person charged with reckless driving, nor to any person charged with driving while under the influence of an alcoholic beverage or any controlled drug or substance or marijuana, ■ nor to any person charged with a violation of subdivision 32-12-65(1) or § 32-33-13, nor to any person who the arresting officer has good cause to believe has committed any felony. A law enforcement officer shall take such person without unnecessary delay before the nearest or most accessible magistrate.
[a]ny person who drives a motor vehicle on any public highway of this state at a time when his privilege is
(1) Revoked is guilty of a Class 1 misdemeanor[.]

While the legislature specifically excluded SDCL 32-12-65(1) from the reach of SDCL 32-33-2, it did not exclude the remainder of that statute which provides:

Any person who drives a motor vehicle on any public highway of this state at a time when his privilege is
(2) Suspended is guilty of a Class 2 misdemeanor;
(3) Cancelled is guilty of a Class 2 misdemeanor.

See SDCL 32-12-65(2)-(3). Further, the legislature also failed to exclude SDCL 32-12-22, the' statute Vocu was cited under, from the application of SDCL 32-12-18. See SDCL 32-12-18’ (1998) (dealing with the surrender of'all previously issued operators licenses before applying for a new license).

[¶ 21.] Trooper Boersma did not follow the procedures set forth in SDCL 32-33-2 even though Vocu was able to produce what that statute requires and his offense has not been excluded from. its application. Based upon the, appropriate application of statutory construction and the statutes applicable to this case, I would reverse.

      . Vocu does not contest the validity of his waiver of his Miranda rights nor the validity of his voluntary consent to the search of his residence.

      . SDCL 23-1A-11 provides:
      Any person who has been served with a petty offense complaint for a violation of a statute relating to the operation and use of a motor vehicle may, if he has a valid South Dakota driver’s license in his possession or if the arresting officer is shown satisfactory proof that the person does have a valid South Dakota driver's license although not in his immediate possession, give a written promise to appear at the hearing to the officer who served the complaint on him.
      If he does not have a valid South Dakota driver's license, he may immediately either sign an admission and give a deposit in accordance with § 23-1A-12 or file a deposit in accordance with § 23-1A-13. If he refuses either alternative, he shall be taken immediately to the nearest or most accessible judge or magistrate for a hearing on the complaint.
      Any person who intentionally violates his written promise to appear, given in accordance with the provisions of this section, is guilty of a Class 2 misdemeanor.

      . This Court has not previously interpreted SDCL 32-33-2 and its exceptions. In State v. Dale, 360 N.W.2d 687, 690 (S.D.1985) this Court did find SDCL 32-33-2 applicable to speeding cases. This Court did observe, however,
      [t]he South Dakota Legislature has not established a separate procedure for the prosecution of misdemeanors in general, or of traffic offenses punishable as Class 2 misdemeanors, in particular. In the absence'of a specifically prescribed statutory procedure, a court may proceed in any lawful manner not inconsistent with Title 23A or any other applicable statute. SDCL 23A-45-13. The proper procedure for the prosecution of speed violations must be pieced together with various applicable sections of SDCL chs. 23A-1, 32-25 and 32-33.

        Id. at 689. In 1968, without analyzing the statute or its exceptions, the attorney general opined:
      It is my opinion that the controlling law on the subjects of ARREST and BAIL is to be found in SDC Supp. 34.16 and the case law applicable thereto.
      SDC 44.0502 [basically SDCL 32-33-2 and 32-33-4] appears to provide only for an alternative method by which an arresting officer may proceed to effectuate the appearances of the arrested person before an appropriate magistrate.
      I find nothing in the statute, or elsewhere, to indicate that SDC 44.0502 would in any way supersede or supplant the law of ARREST and BAIL as found in SDC Supp. 34.16 and the case law pertaining thereto.
      I am therefore of the opinion that SDC 44.0502 is not mandatory.
      1967-1968 Op. Att’y Gen. 432.


author: GILBERTSON, Justice AMUNDSON, Justice SABERS, Justice

text:
    2000 SD 110
    STATE of South Dakota, Plaintiff and Appellee, v. Fredrick D. BRASSFIELD, Defendant and Appellant.
    No. 21174.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Reassigned July 7, 2000.
    Decided Aug. 16, 2000.

      Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, Attorneys for plaintiff and appel-lee.
    Edward G. Albright, Office of Public Defender, Rapid City, Attorneys for defendant and appellant.
   GILBERTSON, Justice

(on reassignment).

[¶ 1.] Fredrick Brassfield appeals a suspended imposition of sentence for possession of a controlled weapon. We affirm.

FACTS

[¶ 2.] On March 13, 1999, Brassfield was stopped for speeding by a Rapid City police officer who was accompanied by a police cadet. After the stop, the officer asked Brassfield for his driver’s license, proof of insurance and vehicle registration. Brassfield produced his registration and an expired insurance card, but no driver’s license. Brassfield also gave the officer his name and date of birth. With this information, the officer was able to confirm through dispatch that Brassfield’s driver’s license had been suspended. The officer then placed Brassfield under arrest for driving with a suspended license and lack of proof of insurance. After the arrest, the officer and cadet searched Brassfield’s vehicle and, under the front passenger seat, found a .410 shotgun with a barrel length of approximately twelve inches.

[¶3.] The State subsequently filed an information charging Brassfield with one count of possession of a controlled weapon. Brassfield’s counsel moved to suppress the evidence seized after his arrest (ie., the shotgun) for violation of his Fourth Amendment rights. A suppression hearing was held and the trial court later entered findings of fact, conclusions of law and an order denying suppression on the basis that Brassfield’s car was validly searched incident to his arrest. After a court trial, Brassfield was found guilty of possession of a controlled weapon. On August 26, 1999, the trial court entered an amended judgment suspending the imposition of Brassfield’s sentence and placing him on probation for two years under various terms and conditions. Brassfield appeals.

ISSUE 1

[¶ 4.] Does this Court have jurisdiction of this appeal?

[¶ 5.] The State argues this Court lacks jurisdiction of this appeal because it is not taken from a final judgment appealable by right. Although Brassfield resists this argument on the basis that the State failed to file a notice of review contesting jurisdiction, it is well settled that, “ ‘[a]n attempted appeal from an order from which no appeal lies is a nullity and confers no jurisdiction on this court, except to dismiss it.’ ” State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citations omitted)(quoting Oahe Enterprises, Incorporated v. Golden, 88 S.D. 296, 299, 218 N.W.2d 485, 487 (1974)). Further, “ ‘this court is required sua sponte to take note of jurisdictional deficiencies!.]’ ” Phipps, 406 N.W.2d at 148 (quoting State v. Huftile, 367 N.W.2d 193, 195 (S.D.1985)).

[¶ 6.] There is some support for the State’s jurisdictional argument. In criminal matters, SDCL 23A-32-2 permits, “[a]n appeal to the Supreme Court ... by the defendant from [a] final judgment of conviction.” “As a general rule, imposition of sentence is required for finality and ... appealability of a judgment of conviction.” 4 Am.Jur.2d Appellate Review § 224 (1995). However, there is a significant split of authority on this view. See John H. Derrick, Annotation, Appealability of Order Suspending Imposition or Execution of Sentence, 51 A.L.R.4th 939 (1987). The United States Supreme Court reached a contrary conclusion in Korematsu v. United States, 319 U.S. 432, 434-36, 63 S.Ct. 1124, 1125-26, 87 L.Ed. 1497, 1498-99 (1943), reasoning as follows:

In [.Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204], we held that the appeal was proper where the sentence was imposed and suspended, and the defendant was placed on probation. The probationary surveillance is the same whether or not sentence is imposed. In either case, the probation order follows a finding of guilt or a plea of nolo contendere. Thereafter, the defendant must abide by the orders of the court. He must obey the terms and conditions imposed upon him, or subject himself to a possible revocation or modification of his probation; and under some circumstances he may, during the probationary period, be.required to pay a fine, or make reparation to aggrieved parties, or provide for the support of persons for whom he is legally responsible. He is under the “supervision” of the probation officer whose duty it is to make reports to the court concerning his activities, and at “any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest.” These and other incidents of probation emphasize that a probation order is “an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline.”
The difference to the probationer between imposition of sentence followed by probation, as in the Berman case, and suspension of the imposition of sentence, as in the instant case, is one of trifling degree ... In either case, the liberty of an individual judicially determined to have committed an offense is abridged in the public interest. “In criminal cases, as well as civil, the judgment is final for the purpose of appeal ‘when it terminates the litigation ... on the merits’ and ‘leaves nothing to be done but to enforce by execution what has been determined.’ ” Here litigation “on the merits” of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public [ie., probation].
These considerations lead us to conclude that the order [suspending the imposition of sentence] is final and appealable.

[¶ 7.] We find the Supreme Court’s reasoning in Korematsu persuasive. In South Dakota, as in the federal system, the probationary surveillance is similar whether or not a sentence is imposed. See SDCL 23A-27-12.1 (court services supervision of probationers); SDCL 23A-27-21 (court services duty to report probationer’s failure to meet conditions of probation); SDCL 23A-27-19 (board of pardons and paroles supervision of person on suspended sentence). Under either a suspended imposition or execution of sentence, the probation order follows a finding or admission of guilt. See SDCL 23A-27-13 (court may suspend imposition of sentence upon receipt of verdict or plea of guilty); SDCL 23A-27-18 (court may suspend execution of sentence upon a conviction). Thereafter, the defendant must abide by the orders of the court and the terms and conditions imposed upon his probation. See SDCL 23A-27-12.1, 23A-27-13, 23A-27-18, 23A-27-18.3, 23A-27-19, 23A-27-21. Violation of these terms and conditions subjects the defendant to a possible revocation or modification of probation. See SDCL 23A-27-13, 23A-27-19, 23A-27-20.1, 23A-27-21. Under some circumstances, a defendant may, during the probationary period, be required to pay a fine or to make restitution to his victims. See SDCL 23A-27-18.3(l) & (3). He may even be required to face incarceration in a county jail or in the state penitentiary for limited periods of time. See SDCL 23A-27-18.1. He is under the “supervision” of a court services officer whose duty it is to make reports to the court concerning his activities. See SDCL 23A-27-12.1, 23A-27-21. Under certain circumstances, including the prevention of escape or the enforcement of discipline, the court services officer may, without order or warrant, detain the probationer and place him in custody. See SDCL 23A-27-21.

[¶ 8.] As in the federal system, these incidents of probation make it clear that, despite its relatively low level of intrusiveness, it remains an authorized mode of punishment that abridges the liberty of the defendant. Thus, like the Supreme Court in Korematsu, we conclude that an order suspending the imposition of sentence should be considered a final and appealable order under SDCL 23A-32-2. To the extent our holding in State v. Iverson, 269 N.W.2d 390, 393 (S.D.1978) is contrary, it is overruled.

ISSUE 2

[¶ 9.] Did the trial court err in denying Brassfield’s suppression motion?

[¶ 10.] This Court recently modified its standards for reviewing suppression issues:

We review fact findings under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Whether police had a “lawful basis to conduct a warrantless search is reviewed as a question of law.”

State v. Hirning, 1999 SD 53, ¶ 8, 592 N.W.2d 600, 603. (citations omitted).

[¶ 11.] “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted without the prior approval of a judge or magistrate are per se unreasonable, subject to only a few specific exceptions.” State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987). One of these exceptions is a search incident to arrest. “When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile[.]” Id at 224 (emphasis added). The distinction between a custodial and non-custodial arrest was succinctly explained by the Colorado Supreme Court in People v. Bland, 884 P.2d 312, 316, n.6 (Colo. 1994):

A “custodial” arrest is made for the purpose of taking, the arrestee to the stationhouse for booking procedures and in order to file criminal charges. A “non-custodial” arrest, however, involves ... only a temporary detention for the purpose of issuing a notice or summons to the arrestee.

[¶ 12.] The trial court denied suppression on the basis that Brassfield’s car was validly searched incident to his arrest. Brassfield argues there was not a valid search incident to ’ his arrest because SDCL 32-33-2 prohibited his custodial arrest under the circumstances of this case.

[¶ 13.] SDCL 32-33-2 provides in part:

Except as otherwise specifically provided, whenever a person is arrested for a violation of any provision of this title [i.e., apprehension and prosecution of traffic violators] punishable as a misdemeanor, the arresting officer shall take the name and address of the person and the license number of his motor vehicle and driver’s license and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in the summons or notice. The time shall be at least five days after the arrest unless the person arrested demands an earlier hearing. The arresting officer shall upon the person’s writ ten promise to appear, release him from custody, (emphasis added).

[¶ 14.] Statutes “ ‘must be given their plain meaning and effect.’ ” State v. Cameron, 1999 SD 70, ¶ 17, 596 N.W.2d 49, 53 (quoting Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539). SDCL 32-33-2 plainly requires the release of a person arrested for violating title 32 after the arresting officer has taken his name and address and the number of his vehicle license and driver’s license. Brassfield was arrested for a violation of SDCL 32-12-65(2), an offense in title 32 of the South Dakota Code. During the course of the arrest, the officer took Brassfield’s name and address and the number of his vehicle license and driver’s license. Thus, Brassfield argues all requirements for his release under SDCL 32-33-2 were met and that the officer should have issued him a summons for a future court appearance and released him on his written promise to appear. Instead, Brassfield contends the officer took him into custody and violated the express terms of SDCL 32-33-2.

[¶ 15.] Under SDCL 32-33-2, Brassfield had to provide the officer his name and address, the license number of the motor vehicle he was driving and his driver’s license number before he could be released on his promise to appear. While Brassfield provided the number of his driver’s license, he did not provide what SDCL 32-33-2 requires, the number of a valid driver’s license authorizing him to drive a motor vehicle upon South Dakota highways. SDCL 32-33-2 does not recognize the number of an invalid driver’s license as compliance with the statute. For purposes of compliance with this statute, the number of an expired, suspended, revoked, altered or forged driver’s license is the same as no driver’s license number. Brassfield was not authorized to drive his vehicle. SDCL 32-12-22. Here, the officer would have violated his duty as a law enforcement officer had he allowed Brassfield to sign a promise to appear and simply drive away. To hold otherwise would create an absurd and unreasonable result that the legislature did not intend. See Dahn, supra. See also State v. Vocu, 2000 SD 109, ¶ 10, 615 N.W.2d 623, 625.

[¶ 16.] Since SDCL 32-33-2 did not prohibit Brassfield’s custodial arrest under the circumstances of this case, the officers had authority to take him into custody and to conduct a warrantless search of his vehicle incident to his arrest. Peterson, supra. It follows that the trial court did not err in denying suppression of the evidence seized as a result of that search.

[¶ 17.] Affirmed.

[¶ 18.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 19.] AMUNDSON, Justice, concurs in part and dissents in part.

[¶ 20.] SABERS, Justice, dissents.

AMUNDSON, Justice

(concurring in part, dissenting in part).

[¶ 21.] I concur on issue one. I join Justice Sabers’ dissent on issue two for the reasons set forth therein and in my dissent in State v. Vocu, 2000 SD 109, 615 N.W.2d 623, since this case involves the same statutory interpretation.

SABERS, Justice

(dissenting).

[¶ 22.] SDCL 32-12-65 provides that “[a]ny person who drives a motor vehicle on any public highway of this state at a time when his privilege” is revoked, suspended or canceled is subject to a misdemeanor offense. SDCL 32-33-2 provides, in part:

Except as otherwise specifically provided, whenever a person is arrested for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall take the name and address of the person and the license number of his motor vehicle and driver’s license and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in the summons or notice.... The arresting officer shall upon the person’s written promise to appear, release him from custody.

(emphasis added). SDCL 32-12-65 classifies the offense of driving with a suspended, revoked or canceled license as a misdemeanor. Because that statute is not specifically exempted, SDCL 32-33-2 applies to Brassfield.

[¶ 23.] The majority opinion states, however, that what the legislature intended, in drafting SDCL 32-33-2, was that a driver produce a “valid” driver’s license number. It concludes that a suspended or expired driver’s license number is not “valid” and therefore, contrary to the statutory language, the driver does, not have to be released upon the driver’s written promise to appear.

[¶ 24.] The interpretation of statutes is subject to a de novo standard of review. In so doing, we must look at the wording of the statutes in question and interpret them according to their plain meaning:

‘The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to-their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.’

Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (quoting U.S. West Communications, Inc. v. Public Utilities Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993)) (emphasis added).

[¶ 25.] In confining ourselves to the language used, the meaning of SDCL 32-33-2 is clear. The legislature could have very easily included the word “valid" as a modifier to the phrase “driver’s license.” However;-it chose not to. The legislature also could have exempted SDCL 32-12-65 from the application of 'SDCL 32-33-2, but again it chose not to. See SDCL 32-33-2.1, -A (specifically exempting the application of SDCL 32-33-2). Therefore, the production of a driver’s license number, whether suspended or expired, is in strict compliance with SDCL 32-33-2. As stated above, “[t]he intent of a statute is determined from what the legislature said, rather than what the courts think it should have said. ”

[¶ 26.] Setting aside the plain meaning of this statute, the majority opinions’ construction of SDCL 32-33-2 also violates our rules governing statutory interpretation. SDCL 32-12-65 provides that it is a misdemeanor offense to drive without a “valid” license. Again, the legislature did not exempt this statute from the application of SDCL 32-33-2, which provides that those who are arrested for misdemeanor offenses shall be released from custody once they give a written promise to appear. By inserting the word “valid” as a modifier to “driver’s license,” this court renders the reconciliation of these statutes impossible and circumvents what the legislature chose not to do. In other words, we judicially exempt the entire statute, SDCL 32-12-65, from the application of SDCL 32-33-2. This exemption was clearly not intended by the legislature, otherwise they would have done it themselves by “specifically providing” so. The majority opinion overlooks: (1) the legislative classification of these crimes as misdemeanors; (2) the clear language and application of SDCL 32-33-2; and (3) the fact that SDCL 32-12-65 is not legislatively exempted from the application of 32-33-2 to arrive at the conclusion that anyone driving with an “invalid” license is vulnerable to a custodial arrest and subsequent search of his vehicle. Obviously, the legislature did not intend this result (or the use of “valid” as a modifier); if it had, it would have employed its own language - “EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED.” Because our rules of interpretation prohibit us from reaching a result that was obviously unintended by the legislature, the majority opinion’s analysis is dead wrong.

[¶ 27.] The majority opinion is also concerned that “the [police] officer would have violated his duty as a law enforcement officer had he allowed Brassfield to sign a promise to appear and simply drive away.” The police officer already violated his “duties” by not complying with SDCL 32-33-2. Furthermore, Brassfield would not be allowed to “simply drive away.” This conclusion is absurd. However, it would have been his problem to either have someone come and drive his car for him or pay for towing expenses if the police officer deems it is improperly parked in a restricted area (SDCL 32-30-3).

[¶ 28.] I vote to reverse and remand.

      . SDCL 22-14-6 provides in part that, "[a]ny person who knowingly possesses a controlled weapon is guilty of a Class 6 felony.” SDCL 22-1-2(8) defines a "controlled weapon” as “a firearm silencer, machine gun, or short shotgun, as those terms are defined in subdivisions (17), (23), and (46)[.]” SDCL 22-1-2(46) defines a "short shotgun” as "a shotgun having a barrel less than eighteen inches long or an overall length of less than twenty-six inches[J”

      . Charges relating to Brassfield’s driving with a suspended license and lack of proof of insurance were ultimately dismissed.

      . SDCL 32-12-65(2) provides:
      Any person who drives a motor vehicle on any public highway of this state at a time when his privilege is:

      (2) Suspended is guilty of a Class 2 misdemeanor!)]


author: AMUNDSON, Justice. KONENKAMP, Justice GILBERTSON, Justice

text:
    2000 SD 115
    STATE of South Dakota, Plaintiff and Appellee, v. Fernando M. BELMONTES, Defendant and Appellant.
    No. 21115.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2000.
    Decided Aug. 23, 2000.

      Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bruce A. Hubbard of Hansen, Hubbard & Swanson, Sturgis, South Dakota, Attorney for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Fernando Belmontes (Belmontes) appeals the denial of a motion to suppress evidence seized pursuant to search warrant. We reverse and remand.

FACTS

[¶-2.] On March 31, 1999, Gary Cudmore (Cudmore), a deputy sheriff in Ziebach County, received a telephone call from an informant. Informant told Cudmore that he was informed by another person that Derwin Martinez had left Modesto, Cali- . fornia, in a white passenger car with California license plates. Martinez and two other individuals were reportedly traveling to Red Scaffold, South Dakota with approximately five pounds of marijuana. Informant advised Cudmore that Martinez would be arriving in Red Scaffold within a couple days. Cudmore believed that this information was reliable because Informant had given information on four or five previous occasions and the tips had resulted hi arrests for various violations.

[¶ 3.] Cudmore passed the information received from informant to Ziebach County Sheriff Robert Menzel (Menzel) and Trooper Shane Severyn (Severyn). Cud-more, however, would not release the name of the informant who supplied the information or the name of the individual who supplied the information to his informant. Severyn passed the information from Cudmore onto Agent Pat West (West) of the South Dakota Division of Criminal Investigation.

[¶4.] West subsequently prepared an Affidavit in Support of Request for Search Warrant. West’s affidavit identified that he had received the information from the Ziebach Sheriffs Department. In addition, statements were included from Men-zel that he had seized drug paraphernalia in the past from Martinez, that Martinez had been previously arrested for assault, and that Martinez owned a silver Buick Skylark automobile. West did not include, however, any information that the informant was reliable or his information was reliable. Further, the affidavit did not state that the information was supplied from an unnamed informant who had received the information from another unnamed informant.

[¶ 5.] Based upon the affidavit, the Magistrate issued a search warrant on April 1, 1999, to allow law enforcement to search the white Mercury Cougar that was identified in the warrant. The warrant, which is referred to as an anticipatory search warrant limited the search to an area within fifty miles of Red Scaffold and required the warrant be served within seventy-two hours after signing.

[¶ 6.] On April 4, 1999, informant advised authorities that Martinez and two other men had arrived in South Dakota during the night, the white Mercury Cougar had broken down south of Red Scaffold and the three individuals had left the car and were in a different automobile driven by Martinez’s mother, Carmen Collins (Collins). Severyn relayed this information to West. Severyn later stopped Collins’ vehicle and ticketed Collins for having a dangling object in her vehicle and having no license in her possession. The three men in the car, Martinez, Miguel Valenzuela and Belmontes, were removed from the vehicle, pat-searched and detained. After being given their Miranda warnings, Valenzuela and Belmontes were taken to Faith, South Dakota Police Department. Martinez, however, was taken by West back to the white Mercury Cougar to execute the search warrant on the automobile. A search discovered numerous items including: a digital scale, packages of ZigZag papers used in rolling cigarettes and a one pound block of marijuana wrapped in plastic, baking soda, duct tape, and grease. Belmontes, Martinez and Valenzuela were arrested for possession of marijuana.

[¶ 7.] At trial, Belmontes moved to suppress the items discovered in the search. The trial court found that the affidavit requesting the search warrant did not contain sufficient probable cause because it lacked any evidence that efforts were made to collaborate the confidential informant’s statements to ensure their credibility. The trial court held that the law enforcement officers acted in good faith and should not be punished by the mistake of the Magistrate in issuing the warrant. Therefore, suppression of the fruit of this search was denied.

[¶ 8.] The jury convicted Belmontes of possession of marijuana. Belmontes appeals, raising the following issue:

Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

STANDARD OF REVIEW

[¶ 9.] We have often stated that our standard of review for a trial court’s grant or denial of a motion to suppress is abuse of discretion. State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469 (citing State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42 (citations omitted)). An abuse of discretion is discretion “ ‘exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” State v. Durke, 1999 SD 89, ¶ 11, 593 N.W.2d 407, 409 (quoting State v. Gesinger, 1997 SD 6, ¶8, 559 N.W.2d 549, 550 (citations omitted)). Further, it is well settled that,

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. State v. Pfaff, 456 N.W.2d 558 (S.D.1990).... This [Cjourt’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. State v. Corder, 460 N.W.2d 733 (S.D.1990). In making this determination, we review the evidence in a light most favorable to the trial court’s decision. Id.

Id. (quoting State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991)).

DECISION

[¶ 10.] Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

[¶ 11.] It is well-settled that “[i]f there is insufficient probable cause, the evidence seized in violation of the suspect’s rights under the Fourth and Fourteenth Amendments must be suppressed.” State v. Gerber, 90 S.D. 432, 436, 241 N.W.2d 720, 722-23 (1976) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court created a “good faith” exception to the Fourth Amendment exclusionary rulé. ' Under the “good faith” exception, “evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was insufficient basis for the issuing magistrate to find probable cause.” State v. Saiz, 427 N.W.2d 825, 828 (S.D.1988). In Leon, the Supreme Court noted that “good faith” exception will not apply in the following four examples:

Suppression ... remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit' that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exception ... will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, [422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431] (Powell, J., concurring in part); see [Illinois v. Gates, 462 U.S. 213, 263-64, 103 S.Ct. 2317, 2345-46, 76 L.Ed.2d 527, 564-65 (1983) ] (White, J, concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.

Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699.

[¶ 12.] In the present case, the trial court concluded that “the affidavit in support of the search warrant contained insufficient probable cause in that it failed to show any efforts to corroborate the confidential informant’s statements, nor any basis for the officer’s belief in the informant’s reliability.” The court found that West had failed to meet the exception under Gerber, 90 S.D. 432, 241 N.W.2d 720, by “not corroborating the Informant’s information by personal observation, reputation of the Defendants, or other research.” Further, the court found that while the affidavit contained insufficient facts to support the issuance of a search warrant, the officers acted in good faith, as defined in Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Saiz, 427 N.W.2d 825, by relying on the search warrant issued by Magistrate.

[¶ 13.] It is well-settled that the purpose of the exclusionary rule was “to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694. In Leon, the error was made by a judicial officer. In the present case, however, the failure to supply information regarding the informants was the error of the officer requesting the warrant. Wfiiether the “good faith” exception applies when the error is made by the affiant officer, rather than the issuing judge, is a question of first impression for this Court.

[¶ 14.] The United States Supreme Court noted in Leon that,

“If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”

468 U.S. at 919, 104 S.Ct. at 3419, 82 L.Ed.2d at 696 (quoting United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374, 384 (1975)). Whether the police “officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues” was in good faith is determined under the objectively reasonable standard. Id., 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698. An officer cannot “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id., 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699 (quoting Brown, 422 U.S. at 610-11, 95 S.Ct. at 2265-66, 45 L.Ed.2d at 431-32 (Powell, J., concurring in part)). This good faith inquiry is limited to the “objectively ascertainable question of whether a reasonable well trained officer would have known that the search was illegal despite the magistrate’s authorization.” State v. Klosterman, 114 Ohio App.3d 327, 683 N.E.2d 100, 103 (1996) (citing Leon, 468 U.S. at 922 fn. 23, 104 S.Ct. at 3420 fn. 23, 82 L.Ed.2d at 698 fn. 23).

[¶ 15.] In Leon, the court further noted that “[njothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.” 468 U.S. at 923 fn.24, 104 S.Ct. at 3420 fn. 24, 82 L.Ed.2d at 698 fn. 24. The Fourth Circuit Court of Appeals emphasized this footnote from Leon in United States v. Wilhelm, 80 F.3d 116, 121 (4thCir.1996) when it held that the “good-faith exception to the exclusionary rule should not apply in this case due to the ‘bare bones’ nature of the affidavit[.]”

[¶ 16.] In Klosterman, the Ohio Court of Appeals reviewed whether the affiant police officer’s conduct fell within the good faith exception under Leon. 683 N.E.2d at 103. Deputy Sheriff Larry Fletcher had failed to provide a sufficient basis to support the issuance of a search warrant. In holding that the good faith exception did not apply, the court noted,

[t]he officer cannot claim good faith reliance on a search warrant based on less than probable cause where he has failed to place in the affidavit information known to him that would support probable cause. The officer’s reliance on the warrant can be objectively reasonable only if his belief that the affidavit contains facts sufficient to create probable cause is itself objectively reasonable.'

Id. at 104. Further, the “[c]ourt objectively evaluating an officer’s claim of good faith reliance must charge the officer with a certain minimum level of knowledge of the law’s requirements.” Id. (citing State v. Rees, 1989 WL 145614 (Ohio Ct.App.1989)). Finally, in holding that the evidence obtained under the search warrant was not admissible, the court held that “a reasonably well trained officer would have known that the information contained in this affidavit did not establish probable cause and could not have formed an objectively reasonable belief that it did.” Id. at 105.

[¶ 17.] In People v. Maestas, 204 Cal.App.3d 1208, 252 Cal.Rptr. 739 (1988), the court was faced with whether officers acted in objective, good faith reliance on a warrant when the affidavit in support of the warrant did not establish probable cause. The court noted that “an officer who does not merely execute but prepares and submits a warrant application containing misstatements and omissions cannot rely on the acceptance of that application as evidence that his conduct-was objectively reasonable.” Id. at 743. Further, the court opined that the question was not whether. Officer Silva was a well trained and experienced officer, but rather, whether “a reasonably well-trained officer in his position would have known that his affidavit failed to establish probable cause.” Id. at 744.

[¶ 18.] In United States v. Barrington, 806 F.2d 529, 532 (5thCir.1986), the court addressed facts analogous to the facts in this case; an officer’s obtaining of “a warrant based on his own bare bones affidavit and then conducting] the search himself.” In rejecting the application of the Leon good faith exception, the court held:

In footnote 24 [of Leon ], the Court indicates that an officer may not obtain a warrant based on a bare bones affidavit “and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct a search.” [citation omitted.] In the instant case, Captain Solomon obtained a warrant based on his own bare bones affidavit and then conducted the search himself. If one cannot use a bare bones affidavit and then rely on an ignorant colleague to conduct the search, he cannot himself conduct the search based on his own bare bones affidavit. Solomon’s behavior does not fall within the ambit of the good faith exception of Leon, for he had no good faith reason to believe the magistrate had made a probable cause determination.

Id.

[¶ 19.] In the present case, West, as the affiant, was aware that the information was received from an informant. West detailed in his affidavit in support of the search warrant that he had extensive training and education as a law enforcement officer. West also testified at the motions hearing that he had training in preparing search warrants and he was familiar with what needed to be done to obtain a search warrant. West further testified that he had never worked with this confidential informant before, nor did he have knowledge that the informant had provided information on a prior occasion. The only information West had received on the informant’s credibility was from Men-zel who had stated “he was familiar with the subject and believed that the information that he’d get from him is going to be accurate.” Further, West did not mention the informant’s credibility or reliability in the application for the search warrant.

[¶ 20.] The trial court found that the affidavit submitted by West was insufficient, but the good faith exception applied to render the search valid. We disagree with the trial court’s application of the good faith exception. To allow the good faith exception to apply in this case would be improper and send the wrong message. In other words, an officer could submit an inadequate affidavit to a magistrate, which the officer knows is inadequate, and then willy-nilly go out and conduct the search because he has a “good faith” shield against any subsequent challenge. Since there is no error shown on the part of the magistrate, the good faith exception found by the trial court would benefit the party whose conduct caused the error. We can not agree with this decision.

[¶ 21.] We reverse and remand.

[¶ 22.] SABERS, Justice, concurs.

[¶ 23.] KONENKAMP, Justice, concurs in result.

[¶ 24.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

KONENKAMP, Justice

(concurring in result).

[¶ 25.] If we validate this search, then we may as well declare that there are no Fourth Amendment defects the good faith doctrine cannot eclipse. In State v. Saiz, 427 N.W.2d 825 (S.D.1988), we embraced this doctrine, but we also adopted its four exceptions, one of which applies here: an officer would not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 828 (citing Illinois v. Gates, 462 U.S. at 263-64, 103 S.Ct. at 2345—46, 76 L.Ed.2d at 564-65 (White, J., concurring in the judgment) and Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431 (Powell, J., concurring in part)); United States v. Leon, supra, 468 U.S. at 923, 104 S.Ct. at 3420, 82 L.Ed.2d at 699.

[¶ 26.] To decide whether the good faith doctrine will save this invalid search warrant, the question here is whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. Saiz, (citing United States v. Leon, 468 U.S. 897, 922-923, fn. 23, 104 S.Ct. 3405, 3420, fn. 23, 82 L.Ed.2d 677 (1984)). In assessing objective good faith, we consider the totality of the circumstances using a standard centering on a reasonably well-trained officer. Contrary to the suggestion in the writings of both the majority and the dissent that we review for abuse of discretion, the question of objective good faith is ultimately a legal one reviewable de novo. United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir.1985). Counsel here did not address the proper standard of review. But as we are the guardians of our judicial process, we cannot leave the method by which we review a case to the vagaries of appellate advocacy. Otherwise, the standard of review might conceivably change in every appeal.

[¶ 27.] In drawing the limits of the good faith doctrine, it is vital that we set clear boundaries. Although it has similarities to Saiz, this case crosses the line. Like Saiz, the affidavit here gave nothing on the underlying circumstances for the informant data. Yet, in concluding that there was objective good faith in Saiz we observed that the affidavit contained language that the informant was “reliable” and had been “ ‘trustworthy and accurate’ in the past.” Here, in contrast, there was no language on the reliability or credibility of the informant.

[¶ 28.] At the suppression hearing in this case it was established that the Deputy Sheriff who received the information from the informant, as well as the Sheriff and Trooper who passed it on, all believed the information was reliable, accurate, and “very credible.” However, this “credible” unnamed informant was not the real informant. The affidavit is somewhat misleading on this point, though perhaps unintentionally so. It states that “[t]he information was received from a reporting party who wished to remain anonymous.” It was not disclosed in the affidavit that the “reporting party” was not the one who professed to have firsthand knowledge of the drug transaction. The true informant did not speak to anyone at the Ziebach County Sheriffs Department or any other law enforcement officer. As that fact was not mentioned in the affidavit, the magistrate could not have known when he approved the warrant that the anonymous report was from the informant’s informant.

[¶ 29.] Was it objectively reasonable for these law enforcement officers to believe probable cause existed knowing they had no information whatsoever on the reliability and credibility of the true informant, and that their unnamed “reporting party” had no firsthand information, but received whatever he or she had from yet another unknown person? Clearly, the answer must be no. See Leon, 468 U.S. 897, 922, n. 23, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (“good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.”). If an officer’s warrant request lies outside the range of reasonable proficiency expected of an officer, then that officer cannot rely on the magistrate’s decision to issue the warrant. Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986).

[¶ 30.] Reasonably well-trained law enforcement officers know that corroboration of anonymous information is required because of its intrinsic unreliability., Under the Leortr-Saiz standard, officers must “have a reasonable knowledge of what the law prohibits.” Leon, 468 U.S. at 919, n. 20, 104 S.Ct. at 3418, n. 20. To uphold this search under the mantle of good faith would make the process of supporting a search warrant request with probable cause almost meaningless. “Every citizen is entitled to be secure from the possibility that angry neighbors, misguided practical jokers, ex-spouses, heartbroken ex-lovers or other personal enemies will provide anonymous information leading to police intrusion into their homes and personal effects.” People v. Rivera, 190 Cal.App.3d 1591, 236 Cal.Rptr. 116, 122 (1987). Saiz establishes a minimum threshold for sanctioning an inadequate affidavit under the good faith doctrine. Justifying a search on an uncorroborated anonymous tip given by an unnamed informant who received his or her information from yet another unnamed informant simply goes beyond objective reasonableness.

[¶ 31.] At the very least, in the absence of a showing on the reliability of a confidential informant, corroboration requires some independent verification of illegal or suspicious activity. Copious details about a person’s clothing, habits, residence, travel itinerary, and companions explain nothing if they all add up to no implication of illegal or suspicious behavior. Rivera, 236 Cal.Rptr. at 120. Of course, an affidavit detailing lawful activities does not make it an improper “bare bones” affidavit. Combinations of lawful and suspicious circumstances may lead to a justifiable inference of criminal activity. See, e.g., Gates, 462 U.S. at 243, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (“[I]nnocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands.”); United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.1990) (“A succession of otherwise ‘innocent’ circumstances or events ... may constitute probable cause when viewed as a whole.”). But here, other than describing the travel itinerary, the person’s car involved, and similar details, no corroboration of any suspicious activity was obtained. When viewing the totality of circumstances in this case we have only an anonymous tip that illegal substances were being transported without any independent verification of illegal activity.

[¶ 32.] Other courts have reached the same conclusion. In State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991) the court stated: “Generally, when information received from a confidential informant is relied upon in an affidavit for a search warrant, the affidavit must contain information which establishes the informant’s basis of knowledge and lends credibility to the informant’s statements.” Id. at 382. “Because the affidavit [the officer] presented to the magistrate in this case made no reference to the reliability of the informant or how he had come to possess his information, we conclude that the affidavit was ‘bare bones’ and insufficient to support the issuance of a warrant to search the appellant’s car.” Id. at 382-83. The court ruled that the illegal search could not be “redeemed through resort to [the good faith] exception,” (quoting State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762, 775 (1986)), where “the affidavit in question is so conclusory with regard to its probable cause information as to render it a ‘bare bones’ affidavit” because “[e]ven under Leon, a bare bones affidavit is not subject to rehabilitation by the good faith exception.” See also United States v. Jackson, 818 F.2d 345, 350, n. 8 (5th Cir.1987) (affidavit totally lacking in indicia of reliability and basis of knowledge constitutes bare bones affidavit, thus good faith exception to the exclusionary rule not available); State v. Swearingen, 131 Ohio App.3d 124, 721 N.E.2d 1097, 1103 (1999) (reasonably well-trained officer would not have relied on warrant because affidavit and oral testimony were so lacking in indicia of probable cause it rendered official belief in its existence entirely unreasonable).

[¶ 33.] The officers here may have been acting with subjective good faith, but their actions were not objectively reasonable under the Saiz criteria.

GILBERTSON, Justice

(dissenting).

[¶ 34.] I would affirm the trial court’s denial of the motion to suppress evidence seized pursuant to the search warrant in this case based upon the good faith exception to the exclusionary rule. Initially, I agree with the Court’s determination that the affidavit in support of the search warrant in this case was deficient because it failed to show a basis for West’s belief in the informant’s reliability or corroboration of the informant’s information by personal observation or other research. The key language in the affidavit referring to the informant simply states: “[t]he information was received from a reporting party who wished to remain anonymous.” While after the United States Supreme Court’s decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the rigid, two-pronged, basis of knowledge/reliability test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for determining probable cause is no longer the law, some facts bearing on the informant’s reliability and basis of knowledge must be provided to the magistrate issuing the warrant. Gates, 462 U.S. at 230, 103 S.Ct. at 2328, 76 L.Ed.2d at 543.

[¶ 35.] No information was provided as to whether the confidential informant was a citizen informer, or a paid or voluntary informant working with law enforcement. Nor did the affidavit state whether the informant had supplied law enforcement with information concerning illegal activity in the past. Finally, the magistrate was not aware that the confidential informant had obtained his information about Martinez through another individual, who also wished to remain anonymous. Thus, without this background, the magistrate could not possibly have known how the informant obtained his information or determined the credibility of the information. People v. Kershaw, 147 Cal.App.3d 750, 195 Cal.Rptr. 311, 315 (1983) (citing People v. Reagan, 128 Cal.App.3d 92, 180 Cal.Rptr. 85 (1982)). I therefore agree with the Court’s conclusion that there was an absence of probable cause to support the issuance of the search warrant in question.

[¶ 36.] Despite these deficiencies, however, the officers in this case acted “in objective good faith” in relying upon the search warrant signed by the magistrate. United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677, 689 (1984). The appropriate test of an officer’s good faith is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Allen, 211 F.3d 970, 977 (6th Cir.2000) (Gilman, J., concurring) (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23, 82, L.Ed.2d at 698 n. 23). I cannot conclude that the affidavit at issue was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (citing Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699) (emphasis added). See also United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985) (stating “[cjourts cannot make the good faith of an officer turn upon whether his reliance on a warrant was misplaced. It is only when the reliance was wholly unwarranted that good faith is absent.”).

[¶ 37.] While the affidavit fails to meet the probable cause test, it hardly sinks to the level of a “a bare-bones” affidavit. Rather, like the affidavit in State v. Saiz, 427 N.W.2d 825 (S.D.1988), it was invalidated because of inadequate information provided about the background of the informant. In Saiz we upheld the validity of the search under the good-faith Leon standard despite the invalidity of the warrant.

[¶ 38.] Herein the facts detailed in the affidavit were very particular in describing what vehicle Martinez was thought to be driving, who he was travelling with, where the individuals were travelling from, when they would be arriving at their destination, and what illegal substance was being transported by them. The affidavit stated that the confidential informant had informed Deputy Sheriff Cudmore that Martinez was driving a white Mercury Cougar with California license plates. It also provided the exact time Martinez had left California — 11:00 a.m. on April 1, 1999, and that he was travelling to Red Scaffold, South Dakota. The affidavit also provided that Martinez was travelling with two Mexican males and that he was transporting a large quantity of marijuana. Finally, the affidavit included information that Martinez’s movements were going to be tracked, as according to the informant Martinez was expected to obtain a motel room at the Branding Iron Motel in Faith, South Dakota, or the Super 8 Motel in Eagle Butte, South Dakota. This is at least as much or even more detail than the facts provided to the magistrate in Saiz. The officers in this case acted in good faith in relying upon the anticipatory search warrant issued by the magistrate in conducting the search of the white Mercury Cougar.

[¶39.] Testimony at the suppression hearing indicated that the law enforcement officers involved in this case were familiar with the confidential informant providing the information about Martinez. While such evidence is not admissible to salvage the deficient warrant affidavit (State v. Smith, 281 N.W.2d 430, 433 (S.D.1979)), it shows that the officers were not attempting to mislead the issuing magistrate or withhold information which would lead an objectively reasonable officer to conclude the warrant was improperly obtained. Saiz, 427 N.W.2d at 828. Cudmore and other officers had used the confidential informant that provided the information from the other anonymous citizen informant between four or five times. Cudmore testified that the informant had never been paid in any way for the information he offered to law enforcement.

[¶ 40.] Cudmore also testified that based upon his own knowledge, the informant was able to provide sufficient and credible information concerning Martinez, and that Sheriff Menzel and Trooper Severyn also believed the information was “very credible.” Cudmore testified that on “four or five different occasions” he was able to make arrests based upon tips that had been given by the confidential informant utilized in this case. In addition, Cudmore testified that the confidential informant had indicated to him that the information was provided by a “reliable” third party, and that the third party had knowledge that Martinez had possibly “brought back different loads of marijuana in the past.”

[¶ 41.] Agent West spoke with Sheriff Menzel and was advised that Menzel was “familiar with the informant.” West testified that: “I believe he informed me that the information he was receiving from the informant was going to be credible.” Finally, Menzel informed West that he had confiscated drug paraphernalia from Martinez in the past.

[¶ 42.] In an absence of the informant’s ability to provide precise details concerning Martinez, Belmontes and Valenzuela and track their whereabouts from California to South Dakota, the exclusionary rule might apply. However, under the facts of this case, it appears to me that the officers possessed a sufficient amount of details to reasonably believe in good faith that the informant’s information included in the affidavit was true and accurate. In addition, some of the officers had previously worked with the confidential citizen informant involved in this case.

[¶ 43.] The plurality contends that if the state’s argument were adopted, “an officer could submit an inadequate affidavit to a magistrate, which the officer knows is inadequate, and then willy-nilly go out and conduct the search because he has a “good faith” shield against any subsequent challenge.” I find this contention to be without merit. Such acts clearly did not happen here. The Supreme Court emphasized in Leon that “the standard of reasonableness ... is an objective one.” 468 U.S. at 919 n. 20, 104 S.Ct. at 3419 n. 20, 82 L.Ed.2d at 696 n. 20 (emphasis added). “Thus, the determination of whether the good faith exception applies in a particular case does not depend on the subjective beliefs of the officers involved.” Allen, 211 F.3d at 978 (Gilman, J. concurring in result) (citing United States v. Maggitt, 778 F.2d 1029, 1035 n. 3 (5th Cir.1985) (“Because the Leon standard is objective, the testimony of the agent who prepared the affidavit ... is not particularly relevant.”); United States v. Gant, 759 F.2d 484, 487-88 (5th Cir.1985) (“[T]he determination of good faith will ordinarily depend on an examination of the affidavit by the reviewing court.”)).

[¶ 44.] What did happen here is that the request for a search warrant and supporting affidavit were presented to a law trained magistrate judge who possessed a legal education and many subsequent years of judicial service. In essence, the new standard of this Court requires that a law enforcement officer such as a sheriffs deputy possess a more sophisticated understanding of this area of the law than is required of a judge who has the authority to issue the warrant to begin with. Rather than promote the use of warrants which has always been the preference of the law, this rationale as applied to the facts of this case invites abandonment of applications for a search warrant by law enforcement in the more promising hope that a warrant exception may come to the officer’s rescue. This avoids the risk that a reviewing judge or appellate court may disagree with the initial judicial determination of probable cause and then go on to hold the officer could have not been acting in good faith, as with the benefit of studied hindsight, a bare plurality of this Court today holds “a judicial mind in view of the law and the circumstances could [not] have reached the same conclusion.” Barber, 1996 SD 96 at ¶ 14, 552 N.W.2d at 820.

[¶ 45.] For the foregoing reasons, I conclude that even though the affidavit in this case did not provide enough detail about the confidential informant or any corroboration of the information by the officers involved, it was sufficient to fit within the good faith exception of Leon. Thus, I would affirm the denial of Belmontes’ motion to suppress.

[¶ 46.] MILLER, Chief Justice, joins this dissent.

      . An "anticipatory search warrant” has been defined as "a warrant that has been issued before the necessary events have occurred which will allow the constitutional search of the premises; if those events do not transpire, the warrant is void.” United States v. Garcia, 882 F.2d 699, 702 (2dCir.1989). This Court first encountered and accepted the use of anticipatory search warrants in State v. Engel, 465 N.W.2d 787 (S.D.1991).

      . State has not appealed this trial court finding by filing a notice of review. In his dissent, Justice Gilbertson accuses the Court of setting a "new standard” that "a law officer ... possess a more sophisticated understanding of this area of the law than is required by a judge." Simply put, this is not the case. The Court is merely stating that an officer cannot withhold known vital information necessary to support a valid search warrant and then benefit from such conduct under the "good faith” exception. There is no "new standard,” rather the Court is simply agreeing with the trial court that the police officer prepared and filed a deficient affidavit. This decision merely says that the "good faith” exception is not intended as a mechanism to cover up deficient police work as found by the trial court in this case.

      . A "bare bones” affidavit has been described as an affidavit which is " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable^]' ” See United States v. Patty, 96 F.Supp.2d 703, 710 (E.D.Mich.2000). See also State v. Thieling, 2000 ND 106, 611 N.W.2d 861, 864-65 (2000) (quotation omitted) (stating that " '[sufficient information, rather than "bare bones” information must be presented to the magistrate;’ ‘[a]n affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.’ ”). Although the trial court did not specifically hold this to be a "bare bones” affidavit, it did find that the information was insufficient to establish probable cause and is in essence, a finding that this was a "bare bones” affidavit.

      . In Leon, the United States Supreme Court noted that "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” 468 U.S. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694. We reiterated this principle from Leon in Saiz where we recognized that " '[p]e-nalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.' ” Saiz, 427 N.W.2d at 827 (quoting Leon, 468 U.S. at 921, 104 S.Ct. at 3419, 82 L.Ed.2d at 697) (emphasis added). It is important to emphasize that unlike Saiz, where we upheld the good-faith exception to a situation involving police officer reliance upon the magistrate's error, we are presently faced with the officer's error. This error in preparation of the request for the search warrant logically falls under the purpose of the exclusionary rule; to deter police misconduct in preparing requests for search warrants. See Leon, 468 U.S. at 916, 921, 104 S.Ct. at 3417, 3419, 82 L.Ed.2d at 694, 697.

      . Although the State spends a substantial portion of its brief arguing that probable cause did exist, in State v. Saiz, 427 N.W.2d 825, 826 (S.D.1988) the failure of the State to file a notice of review on the issue of probable cause, which it lost at the trial court level, rendered the issue moot on appeal to this Court. As the State did not file a notice of review on the issue of probable cause in this case, Saiz controls on that issue.

      . The trial court, which refused to suppress the search in this case, was also the trial court in Saiz■ A review of the findings of fact and conclusions of law herein shows that the trial court determined it to be the same type of case and even cited to Saiz for authority upon which to base its decision. Today the Court in ruling contrary to Saiz fails to overrule it or even to adequately distinguish it from the facts of this case. In both the present case and Saiz, the invalidity was based on the lack of probable cause contained in the warrant affidavit. "The Supreme Court, however, has determined that evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was an insufficient basis for the issuing magistrate to find probable cause.” Saiz, 427 N.W.2d at 828. In both cases the "error” of the issuing magistrate was a reliance upon an affidavit that was subsequently found by the trial court to lack probable cause. Moreover, in Leon, the police "misconduct” was again the same, an affidavit lacking in probable cause. 468 U.S. at 903 n. 2, 104 S.Ct. at 3410 n. 2, 82 L.Ed.2d at 685 n. 2. This police "error” of an insufficient affidavit ultimately becomes the responsibility of the neutral magistrate:
      In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate’s responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ”[0]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.

        Id. at 920-21, 104 S.Ct. at 3419, 82 L.Ed.2d at 697 (citations omitted). Nevertheless, in both Leon and Saiz the validity of the search was upheld based on the good-faith standard despite the underlying inadequate warrant affidavit.
      The rationale of the plurality is even more questionable given the standard of review of this Court is "abuse of discretion.” The plurality merely concludes that "[w]e disagree with the trial court’s application of the good faith exception.” However, to rise to the level of an abuse of discretion, which is the applicable standard of review, the question is “not whether we would make a similar ruling, but rather whether a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” State v. Barber, 1996 SD 96 ¶ 14, 552 N.W.2d 817, 820. Without so acknowledging, the plurality today is simply adopting the rationale of the dissent in Saiz without stating how this Court erred in that case or how the trial court in the case before us abused its discretion.
      The concurrence in result overrules the determination of the trial court based on a de novo standard of review. While other jurisdictions may apply this standard, we have adhered to an abuse of discretion standard of review. State v. Vento, 1999 SD 158 ¶ 5, 604 N.W.2d 468, 469 (citing State v. Anderson, 1996 SD 59 ¶ 8, 548 N.W.2d 40, 42 (citing State v. Ramirez, 535 N.W.2d 847, 848 (S.D.1995); State v. Smith, 477 N.W.2d 27, 31 (S.D.1991); State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991). Moreover, Belmontes does not raise the standard of review as an issue to this Court in his brief. We have repeatedly said that we will not gratuitously decide issues not raised on appeal to this Court. If we are to abandon the abuse of discretion standard of review in favor of a de novo standard, it should be raised at the trial court with an appropriate record developed and then appealed and briefed to this Court. As a matter of fundamental fairness, all parties should be appraised that this is a contested issue and be allowed to argue the merits of such a substantial change in our jurisprudence before it occurs.

      . Although not determinative because the events occurred after the issuance of the warrant, the events that unfolded between the time of the issuance and the warrant's execution would not have caused an objectively reasonable officer to question the accuracy of the information contained in the affidavit. The officers had been given detailed information on the course in which Martinez was travelling from California to South Dakota, and the informant repeatedly updated them on the whereabouts of Martinez, Belmontes and Valenzuela. Law enforcement were informed that Martinez and the others had to make a travel stop in Wendover, Nevada, and in Rollins, Wyoming, due to inclement weather, which would delay their arrival in South Dakota. Also, the informant was able to provide the precise location of where the vehicle had broken down, and finally informed law enforcement that Martinez had arrived during the night of April 3.
      The informant was able to relate to the officers that Carmen Collins, Martinez’s mother, had picked the men up to take them to Faith in order to have two flat tires fixed. Notably, just as predicted by the informant, Severyn located Collins' vehicle approximately four miles south of Faith. See People v. Sousa, 18 Cal.App.4th 549, 22 Cal.Rptr.2d 264, 273 (1993), where the court held that the events that unfolded between the time of the issuance of the anticipatory warrant and its execution and were consistent with the claims of the informant, could be used to corroborate the otherwise uncorroborated information in the affidavit provided by an informant.