author: ZINTER, Justice. SABERS, Justice MEIERHENRY, Justice

text:
    2003 SD 143
    Stephen CORDELL, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
    No. 22742.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Dec. 10, 2003.

      Michael B. Thompson, Sioux Falls, SD, for petitioner and appellant.
    Lawrence E. Long, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, SD, for respondent and appellee.
   ZINTER, Justice.

[¶ 1.] Stephen Cordell appeals the denial of a writ of habeas corpus. He alleges that his trial counsel was constitutionally ineffective. We affirm the trial court’s denial of habeas corpus relief.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Cordell was married to Rachel “Shelly” Brandriet in 1980. The couple had three children during their marriage. They also built a house together near Wa-tertown.

[¶ 3.] Shelly left Cordell on April 2, 1998 and filed for divorce. The divorce was highly contested. Cordell threatened to burn the house if it was awarded to Shelly. The children and marital home were, however, awarded to Shelly. Proposed findings of fact and conclusions of law were mailed to Cordell and received by him on October 25, 1999. That same day, October 25, 1999, the house and a shed were severely damaged by fire.

[¶ 4.] A witness saw a white car, similar to the one driven by Cordell, leaving the area of the house. Immediately thereafter, the witness saw a fire in the shed and house. The fire department responded and observed evidence of arson in the shed and house. There was an odor of petroleum, heavy smoke damage, areas of petroleum like liquid on the floors, heavy concentrations of fire in certain areas, but no evidence that the shed fire had spread to the house.

[¶ 5.] Upon request of law enforcement, Cordell contacted the sheriffs office that same afternoon and voluntarily submitted to an interview. After waiving his Miranda rights, Cordell admitted: that he had received the divorce papers that morning; that he was alone in the house at the time; that he knew of no one else who would have wanted to burn the house; and, that he left the house that morning. The interviewing officer also noticed the smell of petroleum on Cordell. Cordell, however, denied any involvement in the fire.

[¶ 6.] During the course of the interview, the officer determined that Cordell was potentially suicidal and appeared depressed. As a result, Cordell was placed on a mental health hold that evening. Pursuant to jail policy, Cordell was required to change into a jail jumpsuit. Cor-dell’s clothing was removed and placed into a locker by jail personnel. Cordell was subsequently interviewed by a medical doctor and held for an emergency mental health commitment.

[¶ 7.] The clothing Cordell wore was seized by law enforcement the next morning, October 26, 1999, while Cordell was waiting for transportation to the Human Services Center for the involuntary commitment. The clothing was sent to a state laboratory for testing. Trial counsel objected to the introduction of the test results, however, the objection was overruled because counsel had failed to raise the issue in a pre-trial motion to suppress. The test results indicated the possible presence of an accelerant, but no identifiable ignitable liquids.

[¶ 8.] Cordell was ultimately convicted by a jury of second-degree arson and third-degree arson. He failed to file a direct appeal. He did, however, seek a writ of habeas corpus on the ground that his trial counsel was ineffective in: (1) failing to effectively challenge the clothing test results, and (2) failing to suppress Cordell’s statements made during the sheriffs office interview. Following an ev-identiary hearing, the habeas court denied relief.

STANDARD OF REVIEW/BURDEN OF PROOF
Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in [the attorney’s] presentation of the defense at trial. This court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or in-actions constituted ineffective assistance of counsel.

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citations omitted). Cor-dell’s burden for establishing an ineffective assistance claim is also well established.

In order for [petitioner] to obtain habe-as relief on the grounds of ineffective assistance of counsel, he must pass the two-part test for such a claim. See Davi v. Class, 2000 SD 30, ¶ 16, 609 N.W.2d 107, 112 (recognizing the test for ineffective assistance of counsel as presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under this test, [petitioner] must first show that trial counsel erred so seriously that ‘counsel was not functioning as counsel guaranteed by the Constitution.’ Id. Second, he must prove that counsel’s error prejudiced him so that he was deprived of a fair trial. Id. Prejudice, under the Strickland test, requires us to ask: ‘But for counsel’s unprofessional errors’ would the result at trial have been different? Weddell v. Weber, 2000 SD 3, ¶ 25, 604 N.W.2d 274, 281 (citation omitted). To find prejudice, the answer must be that there is a reasonable probability of a different outcome. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ See id. (quoting Loop v. Class, 1996 SD 107, ¶ 14, 554 N.W.2d 189, 192 [(1996)]).

Knecht v. Weber, 2002 SD 21, ¶ 5, 640 N.W.2d 491, 495. With respect to ineffective counsel on Fourth Amendment claims:

Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluda-ble evidence in order to demonstrate actual prejudice.

Luna v. Solem, 411 N.W.2d 656, 659 (S.D.1987).

ISSUE ONE

[¶ 9.] Whether trial counsel was ineffective in failing to contest the search and seizure of Cordell’s clothing at a time when the search could be challenged.

[¶ 10.] Cordell contends that his trial counsel was ineffective because he failed to effectively challenge the search and seizure of the clothing. Although Cordell acknowledges that a search of clothing incident to a lawful arrest is generally valid, he contends that a search incident to an involuntary mental commitment violates the Fourth Amendment.

[¶ 11.] The habeas court specifically found that, although Cordell was in custody on an involuntary commitment, he was not under arrest. Nevertheless, the habe-as court upheld the search under the rules applicable to a search incident to arrest. The habeas court also concluded that Cor-dell suffered no prejudice in light of the overwhelming evidence establishing his guilt.

[¶ 12.] The Fourth Amendment of the Constitution guarantees citizens protection from unreasonable searches and seizures by government actors. U.S. Const, amend. IV, S.D. Const., art. VI, § 11. Under these provisions “[n]ormally, police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone’s property.” State v. Christensen, 2003 SD 64, ¶ 11, 663 N.W.2d 691, 694. In the event a warrant-less search is conducted, it is the State’s burden to show that the search was permissible. Id. ¶ 12. However, “[a]n individual must have a reasonable expectation of privacy in the place searched or the article seized before the Fourth Amendment will apply.” Id. ¶ 11. “[T]his privacy interest is determined by a two-prong test: (1) whether the defendant has exhibited an actual subjective expectation of privacy and (2) whether society is willing to honor this expectation as being reasonable.” State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989). This case focuses on the second prong: whether Cordell’s expectation of privacy in his clothing in a police locker is objectively reasonable.

[¶ 13.] The State argues that the seizure and subsequent chemical search of Cordell’s clothing was reasonable because it was incident to protective custody. We begin the inquiry by first examining the basis for permitting warrantless searches incident to arrest.

[¶ 14.] In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Supreme Court determined that a prisoner’s clothing may be searched and seized without a warrant if it is incident to lawful arrest. This holding was based on the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. Id. at 809, 94 S.Ct. 1234. However, the Edwards holding is clearly predicated upon a lawful arrest. Id. at 808, 94 S.Ct. 1234.

... [U]nder the Fourth Amendment, ... a defendant has no reasonable expectation of privacy in property jail personnel seize from a defendant upon arrival after a lawful arrest.

State v. Cheatam, 112 Wash.App. 778, 51 P.3d 138, 141 (2002) (emphasis added). So also, this Court has determined that items taken from a defendant’s clothing at the time of a lawful arrest are admissible. State v. Spells, 88 S.D. 259, 218 N.W.2d 210, 211 (S.D.1974).

[¶ 15.] The State attempts to extend Edwards and Spells, arguing that custody for an involuntary commitment is sufficiently similar to an arrest to permit a search incident to custody. This argument requires a consideration of two issues: (1) whether a person subject to an involuntary commitment can be lawfully searched; and, if so, (2) to what extent items seized can be subsequently searched without a warrant.

[¶ 16.] In considering the first issue, the Utah Court of Appeals held that “a search incident to protective custody, just as a search incident to lawful arrest, is allowed under the Constitution.” State v. Collins, 53 P.3d 953, 956 (Utah App.2002) cert denied State v. Collins, 63 P.3d 104 (Utah 2003). In Collins, the defendant was placed in protective custody at the request of a medical professional after Collins acted in a manner that could have led to serious injury of others. Id. at 957. Before Collins was placed in protective custody, the officers conducted a pat-down search and found a knife sheath and methamphetamine on his person. Id. at 955. The Utah Court determined that the protective custody statutes implied an authorization to conduct a search incident to taking the person into custody as a protective measure. Id. at 957. The Utah Court recognized that “in a civil protective custody search, the purpose is to protect not only the peace officer but also the mentally ill individual and others.” Id. Consequently, the protective search and subsequent seizure were reasonable and not violative of the Fourth Amendment. Id. Collins, therefore, supports the proposition that a protective search is constitutionally permissible when an individual is placed in protective custody.

[¶ 17.] South Dakota’s involuntary commitment statutes also recognize the need to provide protection to the committed person and the public. SDCL ch. 27A-10. Therefore, when placed in protective custody, a person’s reasonable expectation of privacy is curtailed for these purposes. A contrary conclusion would frustrate the legislative intent of preserving the safety of the public and the individual taken into protective custody. We agree that under the Collins rationale, a reasonable and limited protective search incident to involuntary commitment is permitted in order to protect the mentally ill individual and that person’s custodians. A person placed in protective custody, while not having the same diminished expectation of privacy as an arrestee, does have a lesser expectation of privacy than the average citizen on the street.

[¶ 18.] Moreover, a limited search under these circumstances is consistent with South Dakota law permitting inventory searches after a person is taken into custody. This Court has previously recognized that when a person or property is taken into custody “a good faith, nonin-vestigatory inventory search” is permissible. State v. Hejhal, 438 N.W.2d 820, 821 (S.D.1989) (quoting State v. Flittie, 425 N.W.2d 1, 5-6 (S.D.1988)). “A so-called inventory search is not an independent legal concept but rather an incidental administrative step.” Id. This administrative step is supported by a need to (1) safeguard property; (2) insulate the police from groundless claims that property was not protected; and, (3) secure the detention facility by preventing introduction of weapons or contraband. See id.; Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).

[¶ 19.] Other courts addressing this issue also hold that the rationale for inventory searches applies equally to criminal ar-restees and civil detainees. State v. Friend, 711 S.W.2d 508 (Mo.1986); State v. Toto, 123 N.H. 619, 465 A.2d 894 (N.H.1983); State v. Johnson, 122 N.M. 713, 930 P.2d 1165 (Ct.App.1996). These “[i]nven-tory searches have been upheld not because of their relationship to an arrest, but because of their relationship to legitimate custodial purposes.” Friend, 711 S.W.2d at 510.

[¶ 20.] In this case, Cordell’s clothing was removed for a legitimate custodial purpose. It was then placed in a locker by jail personnel. We therefore conclude that the initial seizure of Cor-dell’s clothing was lawful because it was a reasonable administrative step following his detention. See United States v. Gallop, 606 F.2d 836, 839 (9th Cir.1979) (holding that the reasons for a police inventory, which were outlined in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, apply to property taken under police protection when the owner of the property is ‘detained’ under police custody but not arrested.).

[¶21.] We now turn to the second issue to determine whether the police could extend the seizure of the clothing to a search for chemical traces by having the clothing sent to the state crime lab for testing. In addressing this issue, the North Dakota Supreme Court concluded that, when a detainee’s wallet was taken pursuant to an inventory search, it was reasonable for officers to submit a suspect piece of paper contained therein for chemical testing if “there is probable cause to associate the property with criminal activity.” State v. Gelvin, 318 N.W.2d 302, 307 (N.D.1982) cert. denied Gelvin v. North Dakota, 459 U.S. 987, 103 S.Ct. 341, 74 L.Ed.2d 383 (U.S.N.D.1982). It so held even-though that detainee was not under arrest when the items were inventoried. Id. In approving the chemical testing, the North Dakota Supreme Court held that an officer who lawfully has possession of the property may extend the search when supported by probable cause. Id. However, possession by means of the inventory search will not permit further testing absent that probable cause. Id. See also State v. Lane, 328 N.C. 598, 403 S.E.2d 267, 276 (1991) (admitting into evidence results or tests performed on gun lawfully seized without a warrant when the gun was obtained by consent prior to arrest and probable cause existed for further testing: “Since the pistol and ammunition were already lawfully in the possession of the police officer, he was not required to return it to the owner if there is probable cause to retain it.”)- We agree with these authorities and hold that a detainee’s items, which are seized pursuant to a protective inventory search and are already in the possession of the police, may be the subject of further search and testing if the extended search is supported by probable cause to associate the property with criminal activity.

[¶ 22.] However, we also recognize that in a non-arrest situation, courts more diligently guard the detained person’s privacy interest in their personal items. See e.g. State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994). In Joyce, the Connecticut Supreme Court determined that chemical testing of clothing that was in police custody for safekeeping was not permissible. Id. at 1016. Joyce was discovered burned and his clothing had to be removed during the course of his medical treatment. Id. at 1009. The clothing was collected for safekeeping pursuant to law enforcement’s “community caretaking function” when Joyce was taken to the hospital. Id. at 1010. After Joyce became a suspect in an arson, the police transmitted his clothing to the state forensic lab for further testing. Id. The Connecticut Supreme Court determined that “the defendant had a reasonable expectation of privacy in the invisible and odorless chemicals present in his clothing.” Id. at 1015. Moreover, because there were no facts establishing probable cause for the chemical testing of Joyce’s clothing, the search was found impermissible without a warrant. Id. at 1017.

[¶ 23.] Thus, absent probable cause to believe that the clothing is associated with criminal activity, a civil detainee (as compared to a person under arrest) has a higher level of expectation of privacy in their personal items for purposes of Fourth Amendment analysis. However, that privacy interest does not extend to items which are, on their face, associated with criminal activity. In order to safeguard the privacy interest of such civil detainees, the appropriate limitation is that enunciated by the North Dakota Supreme Court: i.e., whether the officer had probable cause to associate the property with criminal activity.

We do not believe it is necessary for an officer to be certain beyond a doubt that a substance is contraband before he may seize it for testing. The seizure of property by an officer who lawfully views it is permissible if there is ‘probable cause to associate the property with criminal activity.’

Gelvin, 318 N.W.2d at 307, 308 (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980)).

[¶ 24.] The facts in Cordell’s case established probable cause to believe that the clothing contained evidence of an accel-erant or other chemical and was evidence of a crime. The interrogating officer testified that during his interview with Cor-dell, he smelled the presence of a chemical similar to the one at the site of the fire “resembling that to be of a fuel smell of some sort.” This fact alone distinguishes Joyce and meets the test of Gelvin. In addition, these officers were aware that Cordell had received the divorce papers that morning, he had previously threatened to burn the home, he was present at the home that morning, and a vehicle similar to Cordell’s was seen leaving the scene of the fire. Under all of these circumstances, the officer had,,probable cause to believe that the clothing contained chemicals associated with the fire. As a result, the subsequent testing was reasonable on these facts. Consequently, Cordell failed to establish ineffective assistance of counsel because he would not have prevailed on a pretrial motion to suppress.

[¶ 25.] We finally note even if we were to assume that counsel erred in failing to challenge the seizure of the clothing prior to trial, we agree with the habeas court that Cordell is not entitled to habeas relief as he has not established prejudice. To obtain habeas relief, Cordell must establish “a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different.” Weddell, 2000 SD 3 ¶ 25, 604 N.W.2d at 281. Here, there was no prejudice because the other evidence overwhelmingly established Cordell’s guilt.

ISSUE TWO

[¶ 26.] Whether trial counsel was ineffective in failing to challenge Cordell’s waiver of his Miranda rights and subsequent statements to law enforcement.

[¶27.] Cordell also argues that because he was placed on a mental hold after his interview with law enforcement, his waiver of Miranda rights and subsequent statements were not voluntary. He contends that trial counsel was constitutionally ineffective in failing to challenge those statements. However, Cordell does not contend that law enforcement engaged in any coercion in securing the statements. Rather, he only argues that his mental state, as evidenced by the involuntary commitment, prevented a knowing and intelligent waiver of Miranda rights and rendered his statements involuntary.

[¶ 28.] This Court recently clarified the burden of establishing a waiver of Miranda rights. “The State must prove a waiver of Miranda rights only by a preponderance of the evidence.” State v. Tuttle, 2002 SD 94, ¶ 8, 650 N.W.2d 20, 26 (citing Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 485 (1986)). The waiver must be knowing, intelligent and voluntary. Id. ¶ 7. In determining if a waiver is valid, “a court should consider a defendant’s age, experience, intelligence, and background, including familiarity with the criminal justice system, as well as physical and mental condition.” Id. Here, Cordell only argues that his mental condition undermined the voluntariness of his waiver and subsequent statements.

[¶ 29.] “Of course, a waiver must at a minimum be ‘voluntary’ to be effective against an accused.” Connelly, 479 U.S. at 169, 107 S.Ct. 515. In Connelly, the United States Supreme Court addressed a claim of an involuntary Miranda waiver because Connelly was “following the voice of God” in making his statements confessing to a murder. Id. at 161, 107 S.Ct. 515. Psychiatric testimony also revealed that Connelly was suffering chronic schizophrenia and was in a psychotic state around the time of his Miranda waiver and confession. Id. The Colorado Supreme Court suppressed the statements reasoning that, although police engaged in no overreaching, the statements were not a product of “rational intellect and a free will” and therefore were involuntary. Id. at 162, 107 S.Ct. 515. In reversing this reasoning, the United States Supreme Court held:

We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of ‘free will’ that have no place there. There is obviously no reason to require more in the way of ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment on which Miranda was based, is governmental coercion. Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word. (The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. The record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements. The defendant was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda.).

Id. at 169-170, 107 S.Ct. 515 (citations omitted).

[¶ 30.] This rationale is applicable here. Cordell presented no facts, and concedes that none exist, that the police acted in a coercive or overreaching manner in obtaining the Miranda waiver or subsequent statements. Moreover, the videotaped interview reveals that Cordell was coherent and there was no improper physical or psychological pressure. Therefore, there is no basis for habeas relief on this issue.

[¶ 31.] The trial court’s denial of habe-as corpus relief is affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 33.] SABERS and MEIERHENRY, Justices, concur in result.

SABERS, Justice

(concurring in result).

[¶ 34.] I join Justice Meierhenry’s special writing for the reasons stated therein. There simply was no reason for the officers to search and seize Cordell’s clothing without first obtaining a warrant.

[¶ 35.] I concur in the result of the majority opinion because there was probable cause for a warrant and therefore no prejudice has been shown in this habeas corpus proceeding.

MEIERHENRY, Justice

(concurring in result).

[¶ 36.] I write specially on Issue I.

[¶37.] I agree with the majority that the initial seizure of Cordell’s clothing when the officers took him into protective custody on a mental hold is not in violation of his constitutional rights. However, the subsequent chemical analysis at the State Crime Laboratory was a search without a warrant and does not fall -within a recognized exception to the warrant requirements. The majority opinion cites State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994) in which the issue was whether the police who were lawfully in custodial possession of a suspect’s clothing were required under the constitution to get a search warrant before having the clothing tested for chemicals. The Joyce court analyzed the constitutionality of the search as follows:

We must determine (1) whether there was a reasonable expectation of privacy in the clothing; (2) whether the testing of the clothing at the state laboratory constituted a search; and (3) if so, whether the circumstances of this case fall within a recognized exception to the warrant requirement. For purposes of our analysis, we assume that the police had probable cause at the time of the chemical test to believe that the defendant started the fire.

Id. at 1012-1013.

[¶ 38.] The Joyce court found the suspect had an expectation ■ of privacy and concluded that submitting his clothes to chemical analysis was a search. The court further determined the circumstances did not fall within any of the exceptions allowing a warrantless search. The Joyce court recognized that the officers may have had probable cause to suspect Joyce but held that the officers needed a search warrant to test the clothing. The court held “that the chemical analysis of [Joyce’s]'-clothing should have been suppressed” because it was “the result of a warrantless search unsupported by exigent circumstances or any other recognized exception to the warrant requirement.” Id. at 1016-1017.

[¶ 39.] The facts in Joyce are similar to the facts we have before us in this case. In Joyce, the officers were holding burned clothing removed from the defendant when he was transported to the hospital. Here the officers held Cordell’s clothes when he was transported to a mental hospital. In both cases, the officers had probable cause to suspect the defendant of committing arson before submitting the clothing to chemical testing.

[¶ 40.] I would adopt the reasoning of the Joyce court. It is important to note that Cordell was not under arrest nor had he been charged with a crime. The officers who questioned him were concerned that he was suicidal and decided to hold him for his own protection. A citizen placed on a mental hold certainly has an expectation of privacy in his own clothing. Here, the officers took his clothing before he was transported to the Human Services Center. They placed the clothes in a locker. There the clothes remained until they were sent to the Lab sometime later. The officers had ample time to get a warrant to test the clothing. The search does not fall within any of the exceptions to the constitutional requirement of obtaining a warrant.

[¶ 41.] I would find that Cordell’s counsel was ineffective for failing to seek suppression of the clothing. However, I cannot conclude based upon the record that Cordell was prejudiced. The trial court concluded that the state had “presented overwhelming evidence other than the clothing” showing Cordell’s guilt. I agree with the trial court that there was overwhelming evidence supporting Cordell’s conviction without the chemical test of the clothing. I agree with the majority in result and would deny Cordell’s petition.

      . SDCL 23A-8-3 requires that suppression motions be raised prior to trial.

        . However, a fair reading of Collins does not support the proposition that such a search is without constraint. That search was made for a protective purpose. Therefore, it was consistent with the purpose of the protective detention.

      . "Custody pursuant to a community caretak-ing function is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Bernier, 246 Conn. 63, 717 A.2d 652, 659 n. 12 (1998).

      . The Joyce court specifically indicated that the record contained no evidence that the defendant’s clothing emitted any odor detectable by the human sense of smell. Id. at 1014. The special writing's omission of this critical fact leads it to the erroneous conclusion that the facts in Joyce are similar to the facts we have before us. Infra ¶ 39. Unlike Joyce, here the police had evidence that Cordell’s clothing smelled of petroleum: they smelled it in the interview. Therefore, unlike Joyce, they not only had probable cause to believe that Cordell had committed arson, but also that the clothing in the locker was evidence of that crime. Because these officers "had probable cause to associate the property with criminal activity,” this case is governed by Gelvin, 318 N.W.2d at 307, 308, rather than Joyce.

      .We do not address whether exigent circumstances existed to justify the warrantless seizure of Cordell’s clothing. State has not set forth any evidence concerning rates of dissipation or the evanescent nature of accelerants to demonstrate a real danger that such evidence would be lost. See State v. Engesser, 2003 SD 47, 661 N.W.2d 739 (holding a blood draw is permissible when exigent circumstances and probable cause exist without formal arrest). See also State v. Buchholz, 1999 SD 110, ¶ 18, 598 N.W.2d 899, 903; State v. Hanson, 1999 SD 9, ¶ 28, 588 N.W.2d 885, 891.

      . It is important to note that there are no allegations by Cordell that the mental health detention was unsupported in fact, or a mere pretext to obtain possession of the clothing. On the contrary, the decision to hold Cordell was supported by a medical finding.

      . Counsel testified that he specifically considered a challenge, but chose not to proceed because during the interview Cordell steadfastly denied any involvement in the fire.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2003 SD 142
    ESTATE OF Brian E. WATSON.
    No. 22662.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Dec. 10, 2003.

      Robert A. Haivala of Haivala Law Firm, Sturgis, South Dakota, Attorney for appellant, Calvin Watson.
    Veronica L. Duffy of Duffy & Duffy, Rapid City, South Dakota, Attorney for appellee, Estate of Brian E. Watson.
   GILBERTSON, Chief Justice.

[¶ 1.] On September 18, 2001, Brian Watson (Brian) was killed when a vehicle struck him while he was helping a motorist change a tire by the side of the road. Eventually, Brian’s estate reached a wrongful death settlement with the driver of the vehicle involved in the accident. Upon petition of Joan Watson (Joan), Brian’s mother, a circuit court undertook the task of equitably dividing the settlement between Joan and Calvin Watson (Calvin), Brian’s father. The circuit court found Joan had a reasonable expectation of support from Brian but Calvin, with whom Brian had no meaningful relationship through much of his life, could not claim any reasonable expectation of support from Brian. Therefore, the circuit court awarded $54,956.81 to Joan and $1 to Calvin. Calvin appeals this apportionment of the wrongful death settlement. After thorough review of the record, we cannot say the circuit court abused its discretion, and we affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 18, 2001, Brian was killed when a vehicle struck him while he was helping a motorist change a tire by the side of the road. At the time of his death, Brian was twenty-five years old, unmarried, and without children. Brian was survived by his parents, Calvin and Joan, who had been divorced since Brian was thirteen years old.

[¶ 3.] The youngest of four brothers, Brian spent the first half of his life growing up in Florida. Because of his dyslexia, Brian struggled in ■ school, and, unfortunately, his home life was often traumatic as well. The marriage between Calvin and Joan was rocky at best and often marred by Calvin’s physical and verbal abuse of both Joan and the children. Finally, in July 1989, Joan obtained a divorce from Calvin. Pursuant to the divorce decree, a Florida court granted Joan full custody of Brian, the only minor child, and allowed Calvin rights of visitation.

[¶ 4.] After the divorce, Calvin exercised his rights of visitation with Brian from July 1989 until December 1991. In the following six months, however, Calvin failed to exercise any visitation rights with his son. In June 1992, after providing notice to both Calvin and the Florida court which had granted the divorce, Joan and Brian moved to Sturgis, South Dakota. Joan had relatives in the Sturgis area and believed Brian would receive a better education in South Dakota. Calvin did not contest the move. Before leaving, Joan provided Calvin with the address of Joan’s sister in Sturgis, pending Joan’s search for a permanent address.

[¶ 5.] Subsequent to Joan’s and Brian’s relocation to South Dakota, the relationship between Brian and his father was almost non-existent. In December 1992, Calvin mailed a birthday card and Christmas card to Brian. Both cards contained checks drawn on a closed bank account. The record indicates that over the next few years Calvin sent four more cards to Brian, but because of an incorrect address, the cards were returned to Calvin. Calvin also made two telephone calls to South Dakota — one to Joan’s sister and one to Brian’s high school. In these conversations, however, Calvin made no attempt to speak with Brian nor did he inquire about Brian’s well-being. Outside of the six cards, Calvin made no effort to establish a relationship with Brian over the last twelve years of his life.

[¶ 6.] Despite his learning disability, Brian graduated from high school in 1994. After his graduation, Brian and his mother traveled to Florida for a vacation. At the time of the trip, Brian was eighteen years old. During the trip, in response to direct questioning from Joan, Brian expressed no interest in contacting his father while they were in Florida. In fact, Brian never made any attempt to contact Calvin over the seven years of his adult life.

[¶ 7.] Brian lived with his mother, Joan, for his entire life except for a brief period of vocational schooling. After becoming an adult, Brian financially supported his mother and claimed her as a dependent on his 2000 federal income tax return. Calvin, on the other hand, was unable to produce any evidence Brian ever supported him, financial or otherwise.

[¶ 8.] Following the unfortunate accident which claimed Brian’s life, a circuit court appointed Joan special administrator of Brian’s estate. As special administrator, Joan equally divided the proceeds of a $10,000 wrongful death policy between herself and Calvin. Joan also successfully pursued a wrongful death claim against the driver of the vehicle that struck Brian. After payment of attorney’s fees and funeral expenses, only $54,957.81 of the settlement remained to be distributed to Brian’s statutory wrongful death beneficiaries. The circuit court found Joan had a reasonable expectation of support from Brian but Calvin did not, and it granted Joan $54,956.81 and Calvin $1. Calvin appeals the circuit court’s apportionment of the wrongful death settlement. The sole issue of our review is:

Whether the trial court abused its discretion in determining the “fair and equitable” division of the wrongful death proceeds as between Calvin and Joan.

We affirm.

STANDARD OF REVIEW

[¶ 9.] We review the circuit court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204). Under this standard, we will only reverse when “we are left with a definite and firm conviction that a mistake has been made” after a thorough review of the evidence. Id. We review conclusions of law under the de novo standard without deference to the circuit court. Id.

[¶ 10.] We will not reverse a circuit court’s division of property “unless it clearly appears the trial court abused its discretion.” Divich v. Divich, 2003 SD 73, ¶ 7, 665 N.W.2d 109, 112 (citing Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991)). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id.

ANALYSIS AND DECISION

[¶ 11.] Whether the trial court abused its discretion in determining the “fair and equitable” division of the wrongful death proceeds as between Calvin and Joan.

[¶ 12.] After both Calvin and Joan presented evidence and testified under oath, the circuit court made its decision to award Calvin only $1 out of the wrongful death settlement. Calvin contends this apportionment is inequitable and, therefore, this Court should find that the circuit court abused its discretion in dividing the settlement. Under the facts of this case, however, we believe the circuit court did not abuse its discretion in awarding Calvin $1 of the wrongful death settlement.

[¶ 13.] Here, the trial court based its division of the settlement on its findings of fact and guiding principles of South Dakota law. According to SDCL 21-5-5 “[e]very action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents ... of the person whose death shall be so caused.” Thus, both Joan and Calvin were proper beneficiaries according to the statute. Under SDCL 21-5-8, a wrongful death settlement “shall be apportioned among the beneficiaries ... in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries.” (emphasis added).

[¶ 14.] SDCL 21-5-7 provides “[i]n every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.” See Halvorsen v. Dunlap, 495 F.2d 817, 819 (8th Cir.1974) (discussing the history of South Dakota’s wrongful death statutes and recognizing beneficiaries may recover for pecuniary loss). As we acknowledged in Zoss v. Dakota Truck Underuniters:

[P]ecuniary injury encompasses more than strictly economic losses in that it includes ‘the loss of decedent’s companionship and society as expressed by, but not limited to, the words ‘advice,’ ‘assistance,’ and ‘protection,’ but without consideration for the grief and mental anguish suffered by the beneficiaries because of the wrongful death.

1999 SD 37, ¶ 11, 590 N.W.2d 911, 913-14 (quoting Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107, 119 (S.D.1993)).

[¶ 15.] When an adult child dies, we have held there is no presumption “a parent has suffered pecuniary loss ... but the parent is entitled to prove ... that the adult child had the willingness and also the ability to furnish support for his parent.” Gilbert v. Root, 294 N.W.2d 431, 432 (S.D.1980) (citing Hodkinson v. Parker, 70 S.D. 272, 16 N.W.2d 924 (1944)). We have also held a parent may recover if the parent can show he or she might reasonably have expected support from the child if the child had lived. Id.; Halvorsen, 495 F.2d at 822. Thus, under our statutory scheme, it is clear that a child’s support for his or her parents may be a major factor in determining the award of a wrongful death action.

[¶ 16.] Although the present controversy involves a fair and equitable division of a wrongful death settlement, it was entirely proper for the circuit court to look to the South Dakota wrongful death statutory scheme for guidance. The circuit court concluded Joan had a reasonable expectation of support from Brian, and the facts wholeheartedly support this conclusion. At the time of his death, Brian lived with his mother just as he had almost his entire life, save a brief period of attendance at a vocational school. Despite his meager earnings, Brian supported his mother after becoming an adult and even claimed her as a dependent on the last tax return he filed with the Internal Revenue Service. On the other hand, Calvin was unable to offer any evidence of Brian’s support. In fact, the record supports the circuit court’s conclusion that Brian made a free and voluntary decision as an adult not to have any contact with Calvin. Brian never made any attempt to establish contact with his father. After his high school graduation, Brian made no effort to contact Calvin while on vacation in Florida. Therefore, Calvin could not make any credible claim for expectation of support from Brian.

[¶ 17.] Court’s sitting in equity have wide latitude, and “[w]e will not bind a trial court to a strict mathematical formula” in determining property divisions. Pellegrin v. Pellegrin, 1998 SD 19, ¶ 23, 574 N.W.2d 644, 649 (citing Bennett v. Bennett, 516 N.W.2d 672, 675 (S.D.1994)). The circuit court did not abuse its discretion in largely basing its division of the settlement on the relative expectations of support Joan and Calvin could claim.

[¶ 18.] In addition, as the circuit court recognized, in order to expect equity, a party must do equity. See Talley v. Talley, 1997 SD 88, ¶ 29, 566 N.W.2d 846, 852. The circuit court found that Calvin abandoned his son, and the record strongly suggests this finding is not clearly erroneous. Despite having the intellectual and financial ability to contact Brian after he moved to South Dakota, Calvin made no effort outside of sending six cards, four of which were returned. Calvin did not attempt to establish a meaningful relationship while Brian lived, and he may not do so in Brian’s death.

[¶ 19.] Finally, Calvin argues that under South Dakota intestacy statutes he is entitled to half of Brian’s estate. Indeed, where a decedent has no children, SDCL 29A-2-103(2) divides the decedent’s estate equally between the decedent’s parents. This case, however, involves a wrongful death settlement specifically addressed by South Dakota’s wrongful death statutes. See SDCL ch. 21-5 et seq. In fact, SDCL 21-5-8 specifically mandates that a wrongful death settlement be apportioned among the beneficiaries “as shall be fair and equitable.” As noted previously, we believe the circuit court did not abuse its discretion in applying these statutes to its equitable division of Brian’s wrongful death settlement.

[¶ 20.] For the above reasons, we believe the circuit court did not abuse its discretion in awarding Joan $54,956.81 and Calvin $1 of the wrongful death settlement.

[¶ 21.] Affirmed.

[¶ 22.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Robert J. SCHAEFER, a Minnesota Attorney, Registration No. 96271.
    No. A03-1980.
    Supreme Court of Minnesota.
    Jan. 7, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Robert J. Schaefer has committed professional misconduct warranting public discipline, namely, misappropriation of client funds and making misrepresentations to the ethics investigator to conceal his use of the funds in violation of Minn. R. Prof. Conduct 8.1(a), 8.4(c) and (d).

Respondent waived his right to answer the petition and unconditionally admits the allegations of the petition. Respondent waived his right to a hearing under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director that recommends the appropriate discipline is disbarment and payment of $900 in costs under Rule 24, RLPR.

This court has independently reviewed the file and approves the recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Robert J. Schaefer is disbarred from the practice of law effective immediately. Respondent shall comply with Rule 26, RLPR. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: MEYER, Justice.

text:
    Kevin JOHNSON, Respondent, v. STATE of Minnesota, petitioner, Appellant.
    No. C8-02-790.
    Supreme Court of Minnesota.
    Jan. 15, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, David C. Brown, Asst. County Attorney, Minneapolis, MN, for Appellant.
    John M. Stuart, State Public Defender, Davi E. Axelson, Asst. State Public Defender, Minneapolis, MN, for Respondent.
   OPINION

MEYER, Justice.

We are presented with the issue of whether DNA evidence seized pursuant to a court order under a sentencing statute— an order later determined to have misconstrued the meaning of the statute — must be suppressed by virtue of the exclusionary rule. The court of appeals held that the evidence must be suppressed. We reverse.

On September 21, 1992, 17-year-old N.B. was sexually assaulted at knifepoint. The Bureau of Criminal Apprehension (BCA) placed in its database a DNA profile from a vaginal swab it took from the victim. At that time, authorities were unable to link a suspect to the crime. Nearly seven years later, on April 19, 1999, BCA linked the DNA sample to respondent Kevin Johnson.

The DNA sample that linked Johnson to the 1992 sexual assault was taken in 1998 as part of a court order, issued as a condition of probation for Johnson’s part in a 1997 crime. In that case, Johnson was originally charged with first-and third-degree criminal sexual conduct under Minn. Stat. §§ 609.342, subd. 1(d), and 609.344, subd. 1(c) (2002), but pleaded guilty to the reduced charge of promoting prostitution by fraud (“prostitution scam case”). In connection with Johnson’s guilty plea, the district court ordered Johnson to register as a predatory offender and submit a DNA sample. The court based its order on Minn.Stat. §§ 243.166, subd. 1(1) (2002) and 609.3461, subd. 1 (1996), which require persons convicted of certain enumerated offenses and all other crimes “arising out of the same set of circumstances” to register as predatory offenders and submit DNA samples, respectively.

Johnson later moved to withdraw his guilty plea in the prostitution scam case, claiming that during the plea bargaining process his attorney did not inform him of his duty to register as a sex offender and that, had he known that he had to register as a sex offender as a condition of his plea, he would not have pleaded guilty. On April 20, 1999, the district court denied Johnson’s motion to withdraw his plea. The court of appeals reversed, holding that the crime of promoting prostitution by fraud did not “arise out of the same set of circumstances” as his original charge and therefore Johnson could not be required to register as a sex offender. State v. Johnson, Nos. C9-99-1046 and CX-99-1265, 2000 WL 365051, at *2 (Minn.App. Apr.11, 2000), rev. denied (Minn. June 13, 2000) (Johnson I).

At a November 13, 2000, Rasmussen hearing, Johnson’s attorney made his first appearance in the 1992 sexual assault case. At this appearance, the attorney moved to suppress the 1999 DNA sample taken by Sergeant Martinson pursuant to warrant, but did not object to the 1998 DNA sample taken pursuant to the erroneous district court order. The court denied the motion to suppress. On November 15, 2000, Johnson pleaded guilty to the 1992 sexual assault and the court sentenced him to 146 months in prison. Johnson appealed this sentence but later moved to stay the appeal and pursued postconviction relief.

On November 21, 2001, Johnson brought this claim for postconviction relief in the 1992 sexual assault case. He argued that he was deprived of his right to effective assistance of counsel by the failure of his attorney to file a motion to suppress the first DNA sample that was obtained based on Johnson’s promotion of prostitution by fraud conviction. But for counsel’s deficient performance, Johnson argued, the district court would have suppressed the DNA sample and he would not have pleaded guilty to criminal sexual conduct.

The postconviction court noted that, at the time of the Rasmussen hearing, the court of appeals had already issued its decision in Johnson I, in which it held that Johnson’s prostitution scam conviction did not “arise out of the same set of circumstances” as the original charge against Johnson. Accordingly, the postconviction court concluded that Johnson’s counsel should have moved to suppress the DNA evidence, which had been ordered pursuant to identical statutory language as the registration order in Johnson I. The court also concluded that there was a reasonable probability that Johnson suffered actual prejudice as a result of his attorney’s errors. Therefore, the court vacated Johnson’s plea.

The state appealed, alleging that the postconviction court erred in concluding that the exclusionary rule is applicable when a district court’s erroneous interpretation of a statute led to an unauthorized seizure of DNA evidence. Johnson argued that the state had waived its argument that the exclusionary rule did not apply by failing to raise the issue before the post-conviction court. Although the court of appeals agreed with Johnson’s waiver argument, it noted that the exclusion of the DNA evidence was necessary to provide Johnson with a “meaningful remedy” for the violation of his Fourth Amendment rights. Johnson v. State, 654 N.W.2d 126, 134 (Minn.App.2002) (,Johnson II). We granted review and now reverse.

I.

As a threshold matter, we must decide whether the state waived its argument with respect to the exclusionary rule by failing to raise it before the postconviction court. Generally, an appellate court will not consider arguments that are made for the first time on appeal. State v. Grunig, 660 N.W.2d 134, 136 (Minn.2003). One purpose of this rule is to encourage the development of a factual basis for claims at the district court level. See Grunig, 660 N.W.2d at 137 (discussing Garza v. State, 632 N.W.2d 633, 637 (Minn.2001)). The waiver rule is not absolute, however, and an appellate court may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989).

We believe that the interests of justice weigh in favor of allowing the state to raise the exclusionary rule issue on appeal. The procedural posture of this case provided little opportunity to raise the issue to the postconviction court; i.e., the court granted postconviction relief without an eviden-tiary hearing. The applicability of the exclusionary rule was a necessary step in the reasoning of the postconviction court and the court of appeals addressed the rule at length in its opinion. See Johnson II, 654 N.W.2d at 134. The parties agree on the relevant facts and only dispute whether the exclusionary rule should apply to the facts of this case, which dispute is largely an issue of law. For these reasons, we conclude that the interests of justice are served by permitting the state to raise the issue on appeal.

II.

We now consider whether the failure of Johnson’s counsel to move to suppress the DNA evidence deprived Johnson of his Sixth Amendment right to effective assistance of counsel. We review de novo decisions on ineffective assistance of counsel, which involve mixed questions of law and fact. State v. Rhodes, 657 N.W.2d 828, 842 (Minn.2003) (applying de novo review to an appeal of a postconviction ruling). Ineffective assistance of counsel claims require proof of two elements: objective deficiency of counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rhodes, 657 N.W.2d at 842. If either one of these elements is dispositive, the reviewing court need not address both issues. Rhodes, 657 N.W.2d at 842.

A claim of ineffective assistance of counsel may not rest on the failure of an attorney to make a motion that would have been denied if it had been made. State v. Rainer, 502 N.W.2d 784, 788 (Minn.1993) (citing State ex rel. Fruhrman v. Tahash, 275 Minn. 242, 244-45, 146 N.W.2d 174, 176 (1966)). In cases in which the petitioner pleads guilty, the petitioner must demonstrate a reasonable probability that, but for counsel’s ineffective representation, he would not have entered his plea. State v. Ecker, 524 N.W.2d 712, 718 (Minn.1994). On the actual prejudice prong, the reviewing court considers all of the evidence before the district court. Gates v. State, 398 N.W.2d 558, 562 (Minn.1987).

In this case, the actual prejudice prong turns upon whether the district court in the sexual assault case would have granted a motion to suppress the DNA evidence if one had been made. Johnson urges this court to hold that had defense counsel made a motion to suppress the DNA evidence, the court would have applied the exclusionary rule and suppressed the evidence. The state’s position is that Johnson was not prejudiced by defense counsel’s failure to move to suppress because the exclusionary rule should not have been applied to a court-ordered DNA sample.

The Fourth Amendment of the United States Constitution and Article 1, § 10 of the Minnesota Constitution guarantee that a person may not be subjected “to the forced removal of blood for scientific testing in the absence of probable cause and either a search warrant authorizing the intrusion or exigent circumstances excusing the need for a warrant.” In re Welfare of J.W.K., 583 N.W.2d 752, 755 (Minn.1998). Minnesota Statutes § 609.3461 directs the court to order offenders convicted of certain enumerated offenses to provide biological specimens for the purpose of DNA analysis. These enumerated offenses include such crimes as robbery, burglary, murder, and criminal sexual conduct. In addition, an offender shall be required to produce a specimen for DNA analysis if convicted of an offense “arising out of the same set of circumstances” as an enumerated offense. Johnson does not claim the removal of his blood was illegal because the statute is unconstitutional. Rather, he claims the removal of his blood was illegal because his offense did not “arise out of the same set of circumstances” as an enumerated offense. Therefore, the legality of the DNA sample for purposes of this case turns on whether it was authorized by statute.

In Johnson I, the court of appeals interpreted the meaning of the requirement in Minn.Stat. § 243.166 that persons convicted of crimes “arising out of the same set of circumstances as an enumerated offense” must register as predatory offenders. The court held that Minn.Stat. § 243.166 did not require Johnson to register as a predatory offender because the crime of promoting prostitution by fraud did not “arise out of the same set of circumstances” as criminal sexual conduct. Because Johnson challenged only the order requiring him to register as a predatory offender, the court in Johnson I did not explicitly address the legality of the district court’s DNA order. However, the district court’s DNA order was based on MinmStat. § 609.3461, which has operative language parallel to Minn. Stat. § 243.166. Because Johnson I interpreted the operative language of Minn. Stat. § 609.3461, it implicitly decided that the requirement of that section, that Johnson be convicted of a crime “arising out of the same set of circumstances” as criminal sexual conduct, was not met. Because the requirements of MinmStat. § 609.3461 were not met, the district court’s DNA order constituted an illegal search.

The Fourth Amendment contains no provision preventing the admission of evidence obtained as the fruit of an illegal seizure. To give practical effect to the commands of the amendment, the United States Supreme Court crafted the exclusionary rule, an evidentiary rule that prevents the admission of illegally seized evidence. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying the rule to the states); see also State v. Thompson, 273 Minn. 1, 20, 139 N.W.2d 490, 505 (1966). However, we have stated that the exclusionary rule need not be applied rigidly to every situation in which evidence is seized illegally. See State v. Wiberg, 296 N.W.2d 388, 393 (Minn.1980).

We have never before determined whether DNA evidence seized pursuant to a court order — an order later determined to be erroneous — must be suppressed by virtue of the exclusionary rule. We have, however, previously addressed the exclusionary rule in situations in which certain evidence was allegedly obtained in violation of state statutes.

For example, in State v. Smith the defendant claimed that welfare authorities provided police with the defendant’s address in violation of the Minnesota Government Data Practices Act. State v. Smith, 367 N.W.2d 497, 500 (1985). The police obtained a search warrant for the address that resulted in the seizure of robbery evidence. Id. We noted that if there was a violation of the Data Practices Act, the violation of the statute was technical only and did not subvert the purpose of the statute. Smith, 367 N.W.2d at 504. Because the Act was not intended to prevent police from obtaining the whereabouts of criminal suspects, we refused to suppress the evidence obtained through the violation of the statute. See Smith, 367 N.W.2d at 504 n. 1 (stating that the “main protection” of the act for welfare clients is the protection of the disclosure of their status as welfare clients).

In State v. Lien, we concluded that the police had not made a sufficient showing to justify a nighttime search and the magistrate erred in not requiring a clearer showing of need. State v. Lien, 265 N.W.2d 833, 840 (Minn.1978). Nevertheless, we held that exclusion of the evidence seized pursuant to that warrant was not required. Id. First, we noted that any error in the issuance of the warrant was caused solely by the magistrate. Id. Second, we reasoned that, because the search was executed “at a reasonable hour when most people are still awake” and did not take the defendant by surprise, the purposes of the statutory prerequisites for a nighttime warrant would not be furthered by suppression. Id. at 841.

The considerations involved in Smith and Lien inform our decision today. Although both of those cases involved police activity, the errors in Smith and Lien were committed by civil servants and judicial officers, respectively. See Smith, 367 N.W.2d at 503; Lien, 265 N.W.2d at 840. We noted in both Smith and Lien that allowing the admission of evidence did not frustrate the purposes of the statutes in question. Smith, 367 N.W.2d at 504; Lien, 265 N.W.2d at 841.

In this case, the district court ordered the seizure of Johnson’s DNA based upon its conclusion that a charge of promoting prostitution by fraud was a crime “arising out of the same set of circumstances” as the originally charged crime, thus subjecting Johnson to the requirements of submitting a DNA sample under Minn.Stat. § 609.3461. The record indicates that the district court reviewed the complaint, the presentence investigation report, Johnson’s version of the facts, the victim’s statement, and arguments of counsel, and then concluded that the plea on the prostitution charge arose out of the same set of circumstances as the originally charged crime. There was no controlling appellate decision to guide the district court’s ruling in this regard. The fact that the court’s reasoned conclusion was reversed on appeal does not lead us to conclude that the court-ordered DNA evidence must be suppressed. The statute authorizing the production of a DNA sample for certain enumerated sex crimes is a public safety statute primarily intended to “serve[] the legitimate governmental interest of assisting investigation and prosecution of sex crimes.” Kruger v. Erickson, 875 F.Supp. 583, 588 (D.Minn.1995). Furthermore, the police became involved only after the court ordered the production of the evidence, at which time they secured a second blood sample pursuant to a warrant. Neither the statutory purpose of Minn.Stat. § 609.3461 nor the goal of preventing police misconduct would be served by suppression of the evidence in this case.

Because the exclusionary rule does not apply, we conclude that Johnson did not suffer actual prejudice from his attorney’s failure to move for the suppression of the DNA evidence. As the actual prejudice prong is dispositive, we need not decide whether the performance of Johnson’s attorney fell below an objective standard of reasonableness. We therefore reverse the ruling of the court of appeals on Johnson’s ineffective assistance of counsel claim.

Reversed.

      . Based upon an initial link between this sample and the 1992 sexual assault, Sergeant Bernie Martinson executed a search warrant to take a second blood sample from Johnson on May 5, 1999.

      . Johnson admitted to presenting minor T.H.S. as a prostitute under his control in order to lure men into paying him money to have sex with T.H.S. Johnson admitted that he took money from the men but did not allow them to have sex with T.H.S.

      .Minnesota Statutes § 609.3461 (1996) has been renumbered as Minn.Stat. § 609.117 (2002).

      . The failure of Johnson's attorney to object to the 1998 DNA evidence seized pursuant to the district court order is noteworthy because the case file of Johnson’s trial attorney contained multiple notations by Johnson’s appellate attorney in the prostitution scam case that the DNA testing statute should not have applied to Johnson.

      . Johnson also argued that the 1999 DNA sample, taken pursuant to a warrant, should have been excluded as the “fruit of the poisonous tree” of the original DNA evidence seized in 1998. See State v. Staats, 658 N.W.2d 207, 211 (Minn.2003).

      . Although the court of appeals stated that it did not address the applicability of the exclusionary rule, it discussed the issue extensively in its analysis of the prejudice prong of Strickland. Johnson II, 654 N.W.2d at 133-34.

      . In this case we do not reach the question of whether Minn.Stat. § 609.3461 is an unreasonable search under either the Fourth Amendment of the United States Constitution or Article 1, § 10 of the Minnesota Constitu-

      . We do not adopt the court of appeals’ conclusion that Johnson's conviction for promoting prostitution by fraud did not “arise out of the same set of circumstances” as criminal sexual conduct as that issue is not before us.


author: GILBERT, Justice.

text:
    Ronald Lewis GREER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C6-03-216.
    Supreme Court of Minnesota.
    Jan. 15, 2004.

      Lawrence W. Pry, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, Amy J. Klobuchar, Hen-nepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

GILBERT, Justice.

Appellant Ronald Lewis Greer was convicted of first- and second-degree murder as a result of the July 26, 1998 shooting death of Kareem Brown. State v. Greer, 635 N.W.2d 82, 84 (Minn.2001) (“Greer I”). His trial took place in Hennepin County and was presided over by Judge Harry Crump. Id. During the course of the pretrial proceedings, defense counsel made several attempts to remove Judge Crump. On May 4, 1999, defense counsel asked Judge Crump to recuse himself. Judge Crump denied this motion. The following day, defense counsel renewed the motion. This motion was also denied. Defense counsel based these two motions on an ex parte meeting between Judge Crump and the prosecutor.

After Judge Crump denied the second recusal motion, defense counsel filed another removal motion with then-Chief Judge Daniel Mabley. Defense counsel once again argued that Judge Crump’s ex parte contact with the prosecutor was improper. Judge Mabley denied the motion and instructed the parties to return to Judge Crump for further proceedings.

In a post-trial motion, defense counsel claimed that Judge Crump had engaged in numerous ex parte contacts with the jury before and during deliberations. Defense counsel requested that Judge Crump re-cuse himself from deciding whether to grant a hearing on the issue of his ex parte contacts with the jury. Greer I, 635 N.W.2d at 92. The motion sought a hearing on this matter before the chief judge. The same day, appellant filed a motion for a new trial with the chief judge. This motion requested that a Schwartz hearing .be conducted by the chief judge to determine the nature and extent of the ex parte contacts between the trial judge and the jury. Id. The chief judge denied appellant’s motion and ordered that the motion for a new trial should be heard by Judge Crump. Id. at 92-93. Appellant then brought a second motion before the chief judge, this time seeking to have Judge Crump removed. Id. at 93. In support of this motion, defense counsel argued that Judge Crump possessed personal knowledge of disputed evidentiary facts and that his impartiality might reasonably be questioned. The motion was denied by the chief judge. That same day, Judge Crump denied all of appellant’s remaining post-trial motions. Id.

Appellant filed a notice of appeal to this court from the judgment of conviction, raising four issues in support of his appeal. We denied appellant’s requests on all but one claim: that Judge Crump erred when he refused to grant a hearing before an impartial judge to determine the extent of any ex parte communications with the jury. We then remanded the case to the chief judge of the district court with instructions to hear and decide the motion for a Schwartz hearing. Id. at 93-94.

On remand, Chief Judge Kevin Burke first took testimony from Judge Crump to determine the extent of any ex parte contacts with the jury. Judge Crump testified that he “may have briefly communicated with the jury regarding scheduling and exchanged some pleasantries.” All such contact, Judge Crump testified, was “incidental.” State v. Greer, 662 N.W.2d 121, 122 (Minn.2003) (“Greer II”). Appellant submitted his own affidavit, in which he stated that he had seen Judge Crump enter and exit the jury room on a regular basis. Appellant described a specific instance in which he heard laughter emanating from the jury room and then saw Judge Crump exit the room, “laughing and giggling.” Id. at 123. The chief judge granted appellant’s motion for a Schwartz hearing, and the hearing was held on April 30, 2002.

The chief judge summoned six of the twelve jurors, chosen at random, and all six testified at the Schwartz hearing. Id. None of the six jurors recalled any discussion with Judge Crump regarding the reasons for procedural delays or the merits of the case. All six agreed that ex parte comments from Judge Crump had no influence on their verdict and that they had no reason to believe such comments had affected the verdicts of other jurors. The chief judge agreed to close the testimony and subsequently issued an order denying appellant’s motion for a new trial. Appellant appealed this ruling, claiming that the entire jury should have been questioned. We concluded that the chief judge’s conduct of the Schwartz hearing was not an abuse of discretion. Id. at 125.

Sometime following the original trial, defense counsel obtained affidavits from two former law clerks of Judge Crump. We noted these affidavits in Greer II. Id. at 122. These affidavits were filed with a petition for postconvietion relief, and were received in the record without objection. Defense counsel brought these affidavits to the attention of Chief Judge Burke. The chief judge allowed appellant 30 days to decide whether to formally pursue a claim connected with the affidavits, per Minn. Stat. 590.04 (2002). Appellant filed the current claim of “actual bias” on January 23, 2002, 3 months before the Schwartz hearing, which we reviewed in Greer II. The current matter, concerning the affidavits, was therefore pending concurrent to the allegations discussed in Greer II.

The first former clerk submitted an affidavit dated January 14, 2002. The first clerk noted that Judge Crump “told me he denied defense counsel’s challenges for cause because he was angry with them.” The second former clerk submitted an affidavit dated January 15, 2002. The second clerk similarly noted that Judge Crump “informed me and my co-clerk * ⅞ * that he was angry with defense counsel and denied defense challenges for cause because he was angry with them.” The second clerk also noted that Judge Crump was angry “because of his tone of voice, his agitated manner and his low frustration level.” Judge Crump passed out questionnaires to the jurors following the trial. The second clerk claimed that two of the jurors noted that they believed Judge Crump favored the prosecution. The second clerk further claimed that Judge Crump instructed the second clerk not to send the questionnaires to the attorneys, which was an unusual request. The second clerk’s impression was that “he did not want others to see them because of the claim of bias by the [cjourt.”

Based on the law clerks’ affidavits, appellant requested postconvietion relief, claiming that the affidavits constituted new evidence that allows a claim of “actual bias.” The matter was heard by Chief Judge Burke. In his December 3, 2002 order, the chief judge found that the grounds upon which the petition was based were “all relate[d] to the claim that Judge Crump was biased against Petitioner and his attorneys.” The chief judge denied appellant’s petition. Appellant filed a notice of appeal on February 4, 2003. We affirm the postconvietion court’s ruling.

I.

A petition for postconvietion relief is a collateral attack on a conviction that carries a presumption of regularity. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000); State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968). We review a postconvietion court’s decision only to determine whether sufficient evidence supports the court’s findings. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn.1998); Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). We overturn a postconvietion court’s decision only if the court abused its discretion. Wilson v. State, 582 N.W.2d 882, 884 (Minn.1998); Scruggs, 484 N.W.2d at 25.

Postconvietion relief can be petitioned for in Minnesota pursuant to Minn. Stat. 590.01, subd. 1 (2002). A postconviction proceeding may require an evidentia-ry hearing. See Minn.Stat. 590.04 (2002). At the hearing, a petitioner bears the burden of establishing by a fair preponderance of the evidence facts that warrant a reopening of the case. Hummel, 617 N.W.2d at 564. In order to meet that burden, petitioner’s allegations must be supported with more than mere argumentative assertions that lack factual support. Id. However, if the petition, files, and record “conclusively show that the petitioner is entitled to no relief,” a court need not conduct an evidentiary hearing. Id. (quoting Minn.Stat. 590.04, subd. 1).

In State v. Knaffla, we established that once a petitioner has directly appealed a conviction, all matters raised in that appeal, and all matters that were known but not raised, “will not be considered upon a subsequent petition for post-conviction relief.” 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We have recognized two exceptions to the rule in Knajfla. First, a postconviction court may hear and consider a claim that was previously known but not raised if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995) (citation omitted). Second, even if the claim contained in a petition for postconviction relief was known at the time of direct appeal or its legal basis was reasonably available, we still allow substantive review of the claim when fairness so requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Id. (citation omitted); accord Doppler v. State, 660 N.W.2d 797, 801-02 (Minn.2003).

In the present, matter, the postcon-viction court found that appellant had

not made an affirmative showing of prejudice. Moreover, all of [appellant’s] claims were already raised and thoroughly examined on direct appeal or were available at the time of appeal. [Appellant] provides no claims ‘so novel that it can be said its legal basis was not reasonably available at the time direct appeal was taken.’

Further, the postconviction court found that all new allegations “relate[d] to the claim that Judge Crump was biased.” Appellant argues that the affidavits of Judge Crump’s law clerks should be considered as new evidence that was not previously available. These affidavits, appellant argues, constitute direct evidence of Judge Crump’s actual bias (or “smoking guns”), and were not available to appellant until after we had remanded his case. Appellant does not divulge how he managed to obtain these law clerk affidavits, or why they were not previously available. Nonetheless, appellant argues that the affidavits should overcome the Knajfla bar. The affidavits, argues appellant, allow for a new claim of “actual bias.”

As the postconviction court noted, impartiality is the very foundation of the American judicial system. See Payne v. Lee, 222 Minn. 269, 277, 24 N.W.2d 259, 264 (1946). Rule 26.03, subd. 13(3) of the Minnesota Rules of Criminal Procedure provides, “[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct.” Canon 3D(1) of the Minnesota Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer * * *.” The Advisory Committees Commentary to Canon 3D(1) explains:

Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3D(1) apply. * * * A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

Commentary to the Minnesota Code of Judicial Conduct, Comments' — Canon 3 (Nov. 22,1995).

We have noted that Canon 3D(1) is not purely aspirational in its terms, because it uses the operative verb “shall disqualify.” Powell v. Anderson, 660 N.W.2d 107, 114-15 (Minn.2003). The grounds for disqualification in Canon 3D(1) are stated broadly, leaving considerable room for interpretation in their application to any given set of circumstances. Id. at 115. Canon 3D(1) “does not provide a precise formula that can automatically be applied.” Id.

The postconviction court found that appellant did not make an affirmative showing of prejudice. Similarly, in Greer I, we thoroughly evaluated circumstances surrounding appellant’s trial, and found no substantive errors in the trial conduct. The United States Supreme Court, in the context of evaluating whether to recuse a judge under a federal statute, has stated that

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Judge Crump’s rulings were not found to be in error during appellant’s two appeals to this court, or during appellant’s Schwartz proceeding.

Appellant made numerous attempts to recuse Judge Crump. For example, during pretrial motions on May 4, 1999, appellant asked Judge Crump to re-cuse himself based on ex parte contacts with the prosecutor. After Judge Crump denied this motion, appellant renewed his motion on May 5, 1999. This second motion was denied as well. Appellant then went to Chief Judge Mabley to request removal of Judge Crump. Chief Judge Mabley denied this motion. Later, we remanded to the district court to conduct a Schwartz hearing to look into Judge Crump’s alleged jury misconduct. Greer I, 635 N.W.2d at 94. Chief Judge Burke conducted these proceedings and jurors never asserted that they felt Judge Crump influenced them in any manner through any type of actions or alleged bias. Greer II, 662 N.W.2d at 124.

Appellant has appealed numerous times based on his attempt to remove Judge Crump for bias. None of Judge Crump’s law clerks’ assertions appear to be “so novel” to surpass the Knaffla bar in light of the bias claims that had been already reviewed so many times. Rather, they vaguely point to “challenges” that Judge Crump may have erroneously denied. Moreover, in Greer I, we examined the voir dire interaction between defense counsel and prospective jurors. We concluded:

[Appellant’s] ability to conduct an adequate voir dire of these prospective jurors was not infringed and * * ⅜ the trial court did not frustrate the purposes of voir dire by preventing [appellant] from discovering bases for challenge or inhibiting him from making an informed exercise of peremptory challenges.

Greer I, 635 N.W.2d at 89.

Even if presented during appellant’s numerous recusal motions, it is unlikely that the law clerks’ affidavits would have formed a basis in themselves for removal of Judge Crump or a specific juror or change in the composition of the jury panel. We agree with the Minnesota Court of Appeals, which has held that “[p]rior adverse rulings * * * clearly cannot constitute bias * * *.” Olson v. Olson, 392 N.W.2d 338, 341 (Minn.App.1986) (citing United States v. Anderson, 433 F.2d 856, 860 (8th Cir.1970) (holding that prior rulings do not establish bias, even if erroneous)). A new trial is required when the trial court departs from the standards of judicial impartiality and prejudices the losing party’s rights. Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 361-62, 43 N.W.2d 260, 265 (1950). We have not found any erroneous rulings in our prior evaluations of this case. The record supports the trial court’s denial of challenges for cause. The record further supports the postconviction court’s finding that these new claims are related to the past allegations of bias against Judge Crump. We therefore hold that the postconviction court did not abuse its discretion in denying appellant’s claim regarding judicial bias because it is barred under the doctrine articulated in State v. Knaffla.

Affirmed.

      . Appellant requests that this court consider the law clerks' affidavits as compelling newly-discovered evidence. The test for newly-discovered evidence is articulated in Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997), and requires that (1) the evidence was not known to the defendant or his counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence would probably produce an acquittal or a more favorable result. Keeping in mind the Schwartz hearing conducted by the chief judge, appellant does not show anything new that would indicate the affidavits would probably produce an acquittal or a more favorable result.