author: SABERS, Justice.

text:
    2007 SD 48
    STATE of South Dakota, Plaintiff and Appellant, v. Travis LABINE, Defendant and Appellee.
    No. 24202.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided May 2, 2007.

      Lawrence E. Long, Attorney General, Steven Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    G. Matthew Pike, Lawrence County, Public Defender’s Office, Deadwood, South Dakota, Attorney for defendant and appel-lee.
   SABERS, Justice.

[¶ 1.] Travis Labine (Labine) was indicted for possession of marijuana in a moving vehicle. After a magistrate judge granted Labine’s motion to suppress, the State petitioned for a discretionary appeal, which we granted. We affirm.

FACTS

[¶ 2.] On March 29, 2006, the Spearfish Police Department was conducting a school zone speed saturation patrol near Jackson Boulevard and 10th Street in Spearfish, South Dakota. The officers were conducting this operation on foot, their patrol cars parked some distance away. One officer would radar the speeding car and relay the information to a second officer, who would flag down the speeding vehicle and issue a citation. It was during this operation that the officers clocked a blue Cadillac going thirty-nine miles per hour in the fifteen miles per hour school zone. Labine was a passenger in this vehicle.

[¶ 3.] Officer Matthew Symonds (Officer Symonds) signaled to the Cadillac to pull over. Officer Symonds made contact with the driver, obtained his information from his driver’s license, and began issuing a citation for speeding. He did not smell any illegal substances at this time. During this time, South Dakota Highway Patrolman Brian Swets (Trooper Swets) parked his squad car near the other police vehicles and approached the blue Cadillac. According to his testimony at the suppression hearing, he did not stop because he witnessed any criminal activity, nor was he summoned to the scene by the other officers. He testified he was passing by and stopped to visit.

[¶ 4.] At this point, the testimony of Trooper Swets and Officer Symonds diverges. Trooper Swets testified that he noticed the blue Cadillac had illegal mir-rorized tint on its windows. As he approached the vehicle, he asked Officer Symonds if that violation had been addressed. When Officer Symonds informed him that it had not, he asked Officer Symonds if it would be okay if he talked with the occupants of the vehicle about it. However, Officer Symonds testified that Trooper Swets did not speak with him prior to talking to the vehicle occupants. Instead, Trooper Swets went directly to the passenger side and began speaking with the occupants.

[¶ 5.] When Trooper Swets approached the vehicle, he claimed he smelled the odor of burnt marijuana and alcohol. According to Trooper Swets’ and Labine’s testimony, he asked whether there was any reason why his narcotics detection dog would smell the odor of an illegal drug coming from the vehicle, even though the drug dog was in his vehicle a half a block away. Furthermore, he smelled alcohol emanating from Labine, so he asked him to step out of the car and to see his identification.

[¶ 6.] Labine appeared nervous to both Trooper Swets and Officer Symonds. When questioned, Labine informed the officers that he was out on bond. Labine was asked if he had any illegal drugs on his person, to which he replied no.

[¶ 7.] Here again, Officer Symonds’ and Trooper Swets’ testimony differs. Trooper Swets claims he asked Labine for consent “to search his person,” and according to Trooper Swets, Labine consented to the search of his person. Labine was informed by Officer Swets that “he didn’t have to allow [[a] search [of] his person], and he could deny [the] search if he chose to do so.” According to Trooper Swets, Labine consented again. Trooper Swets immediately went to Labine’s pockets, felt outside the pocket for any sharp objects and then pulled out a baggie from within the pocket containing less than two ounces of marijuana.

[¶ 8.] Officer Symonds testified that Labine and Trooper Swets were at the rear of the vehicle so he heard the conversation between them. According to Officer Symonds, Trooper Swets asked numerous times, “It’s all right if I. pat you down?” He also testified that the pat-down Trooper Swets conducted was “more in depth” than the pat-down search he was trained to conduct.

[¶ 9.] Similarly, Labine stated that Trooper Swets asked if he could “pat-down your person.” According to Labine, Trooper Swets asked if he could conduct a “pat-down” twice. Furthermore, he thought he was consenting to nothing more than a pat-down for weapons.

[¶ 10.] After the suppression hearing, the magistrate suppressed the evidence. In its memorandum opinion, it explained that it “struggles because based upon Trooper Swets testimony he acted completely within the scope of the law. However, consideration of the testimony of the other witnesses gives the Court reasonable doubt.” The court decided the State did not meet its burden of proof and ruled that all evidence “seized from a pat-down search not prompted by a reasonable belief of present danger should be suppressed.”

[¶ 11.] The State made a motion to reconsider, but the magistrate suppressed the evidence. The State proposed findings of fact and conclusions of law, which were rejected. The magistrate then issued findings of fact and conclusions of law, which did not expressly incorporate the memorandum opinion. Thereafter, the State petitioned this Court for permission to take a discretionary appeal. The petition listed four issues. We granted the petition, and the State appealed the following issues:

1. Whether the trial court erred in applying the wrong standard to determine if Labine consented to a search of his person.
2. Whether the trial court erred in its application of the exclusionary rule.

STANDARD OF REVIEW

[¶ 12.] Our standard of review on suppression cases is well settled,

A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact 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.

State v. Sweedland, 2006 SD 77, ¶ 12, 721 N.W.2d 409, 412 (citing State v. Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d 89, 95) (additional citations omitted).

[¶ 13.] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This prohibition generally means a warrant must be issued before an individual may be subject to a search or seizure. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968); State v. Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d 837, 840. However, there are exceptions to the general warrant requirement including, as argued in this case, consent. See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13, 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36, 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8, 688 N.W.2d 193, 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19, 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent, exigent circumstances, search incident to arrest, and protective sweeps).

[¶ 14.] “[L]aw enforcement is afforded no deference when relying on an exception to” the warrant requirement. Sweedland, 2006 SD 77, ¶ 14, 721 N.W.2d at 413 (citing Raveydts, 2004 SD 134, ¶ 8, 691 N.W.2d at 293; State v. Luxem, 324 N.W.2d 273, 279 (S.D.1982)). Furthermore, the State has the heavy burden of proving a warrantless search meets an exception to the warrant requirement. Id. In this case, the State has the burden to show by a preponderance of the evidence that consent was voluntarily given. See State v. Akuba, 2004 SD 94, ¶ 13, 686 N.W.2d 406, 412-13. In order to determine if consent was voluntary, we look at the totality of the circumstances. Id. ¶ 25.

[¶ 15.] The State’s first argument in this case is that the magistrate court held the State to a higher burden than preponderance of the evidence. In its memorandum opinion, the court stated that “the testimony of other witnesses gives the court reasonable doubt. As such the Court finds the State has not met its burden of proof.” According to the State, the trial court’s “erroneous view of the applicable law” requires reversal.

[¶ 16.] However, the magistrate’s memorandum opinion is not incorporated into its findings of fact and conclusions of law. The specific findings of fact and conclusions “supersede the memorandum and articulate the trial court’s final and determinative thoughts.... ” State v. Tapio, 459 N.W.2d 406, 410 (S.D.1990). “[I]t is settled law that we do not review the trial court’s memorandum opinion unless the same is expressly incorporated in the trial court’s findings of fact and conclusions of law.” Linard v. Hershey, 516 N.W.2d 304, 305 (S.D.1994) (quoting Olson v. Olson, 438 N.W.2d 544, 547 (S.D.1989) (additional citations omitted)). Since the memorandum was not incorporated, and cannot be used, our review is limited to the findings of facts and conclusions of law.

[¶ 17.] The State also argues the trial court erred because the findings and conclusions do not explain what standard was utilized. The absence in the conclusions of the legal standard used does not require reversal. Whether the State met their burden is a legal question we review de novo. Sweedland, 2006 SD 77, ¶ 12, 721 N.W.2d at 412 (stating the application of legal standard to facts is reviewed de novo) (citing Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d at 95) (additional citations omitted).

[¶ 18.] After hearing the officers and Labine testify, the magistrate found “that the consent given by Defendant Labine to Trooper Swets was limited in scope to a pat search of his clothing.” It explained that this factual finding was arrived at after “careful review of the contradictory testimony, having observed the witnesses’ demeanors, as well as vocal nuance, volume, and intonation, and having considered the issue of credibility of the witnesses-” It is the trial court’s responsibility to weigh the evidence, including credibility, and make factual findings. State v. Lockstedt, 2005 SD 47, ¶33, 695 N.W.2d 718, 729. “Due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” SDCL 15-6-52(a). This Court does not reweigh the evidence and derive new factual findings; rather, the trial court’s factual findings will not be overturned unless they are clearly erroneous. Lockstedt, ¶ 33 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)) (noting that reviewing courts may not reverse factual findings if plausible in light of the entire record, even if it would have weighed the evidence differently). Clearly erroneous factual findings mean “we are left with a definite and firm conviction that a mistake has been made” or the findings are clearly against the weight of the evidence. State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637 (additional citations omitted).

[¶ 19.] In this ease, the record does not demonstrate that the trial court’s factual findings are clearly erroneous. The magistrate noted that Labine’s testimony was given less weight since he had more to gain from suppression of the evidence. Nonetheless, it noted his testimony was consistent with Officer Symonds’ testimony that Trooper Swets asked to “pat-down” Labine, not conduct a search. After weighing the credibility of the witnesses and their testimony, the trial court resolved the conflicting testimony in favor of Labine and Officer Symonds’ testimony. This finding is not clearly erroneous.

[¶20.] The trial court found Labine was only asked, and only consented to, a pat-down search. After applying the facts to the legal standard, we conclude the State did not prove even by a preponderance of the evidence that Labine’s consent removed the need for a warrant to search his person. The trial court found consent was limited to a pat search. Therefore, Trooper Swets exceeded the scope of consent when he reached into Labine’s pockets and removed a small baggie of marijuana, an object that did not give the officer a reasonable belief of danger. See Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 2138-39, 124 L.Ed.2d 334 (1993) (affirming the suppression of heroin found in defendant’s pocket where the officer did not know the illegality until the officer manipulated the substance within the pocket); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968) (officer may “conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him”).

[¶ 21.] Having determined the search exceeded the consented scope and was illegal, the next inquiry is whether the exclusionary rule should be applied.

[¶ 22.] The exclusionary rule applies to evidence that is obtained in violation of the Fourth Amendment’s prohibition against illegal searches and seizures. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). While initially exclusion was applied in all cases where evidence was illegally obtained, the United States Supreme Court has limited the application of the exclusionary rule. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). Now, the exclusionary rule is a judicially created remedy of deterring illegal searches and seizures that is designed to be employed, “where its remedial objec-fives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974); see Sorensen, 2004 SD 108, ¶ 8, 688 N.W.2d at 196-97. Therefore, the rule is applicable “where its deterrence benefits outweigh its ‘substantial social costs.’ ” Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 2019, 141 L.Ed.2d 344 (1998) (quoting Leon, 468 U.S. at 907, 104 S.Ct. at 3412).

[¶ 23.] The State claims the trial court must be reversed because “[a]t no place within the trial court’s memorandum decision does the court discuss the social costs of application of the exclusionary rule and balance those costs against any deterrent benefit.” However, the State is again mistakenly relying on the memorandum decision. In the magistrate’s conclusions, it specifically explains that “exclusion of evidence here, where a law enforcement officer obtained limited consent under one pretense and then exceeded the scope of that consent, is necessary to deter future police misconduct.” It further explained,

If law enforcement were allowed to obtain consent for a pat-down search of a suspect’s outer clothing by use of express words like “pat-down” and then intentionally exceed the scope of that consent, including reaching into a suspect’s pockets for any and all objects not otherwise identified as possible weapons, the individual protections guaranteed under the Fourth and Fourteenth Amendments of the United States Constitution and Article VI, § 11 of the Constitution of South Dakota would be rendered moot.

Conclusion of Law 9, Labine, No. 06-366 (Lawrence County, August 16, 2006). The State claims the mention of the benefit in deterrence is not enough; the trial court must also list the societal costs. It argues the trial court must make more specific findings or conclusions as to how that benefit balances against the social costs in application of the exclusionary rule. However, the findings and conclusions indicate the trial court did consider the deterrent effect versus societal costs.

[¶ 24.] The State goes on to argue that the societal costs in lost evidence outweigh any deterrence, and that there was confusion, but the officer did not act with “conscious disregard of Defendant’s rights under the Fourth Amendment.” However, this ignores the trial court’s findings of facts. It found the Trooper repeatedly asked for consent to “pat-down” Labine. When he received consent for that limited search, he intentionally and almost immediately exceeded the scope of consent. Exclusion of the evidence deters police officers from “misunderstanding” the type of search that was consented to and then violating suspect’s rights. This deterrence outweighs the cost of lost evidence.

[¶ 25.] For these reasons, we affirm.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The record indicates that the drug dog was not employed and had no opportunity to alert.

      . The issues presented in the petitioh for discretionary appeal were: 1) Whether the court erred in use of a legal standard to determine scope of the consent search; 2) Whether detection of alcohol and marijuana odors should have been addressed by the court, and if so, whether such odors detected from coming within the car led to probable cause to justify search of passengers and the car; 3) Whether Labine failed to show standing in order to challenge the search of the car and items and persons within; and 4) Whether the court erred in omission of the required balancing test to determine if deterrence benefits outweighed substantial social costs of exclusionary rule application. Two of these issues were briefed in the actual appeal. Because the other two issues were not briefed or even mentioned in the State's brief, they are deemed waived.

      . Article 6 section 11 of the South Dakota Constitution provides:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.

      . The complete finding is as follows:
      Upon careful review of the contradictory testimony, having observed the witnesses’ demeanors, as well as vocal nuance, volume, and intonation, and having considered the issue of credibility of the witnesses, I find that the consent given by Defendant Labine to Trooper Swets was limited in scope to a pat search of his clothing.
      Finding of Fact 12, State v. Labine, No. 06-366 (Lawrence County, August 16, 2006).

      . The magistrate found that,
      The resulting search of the Defendant, which exceeded the limited scope of the pat search, and the seizure of what was in his pocket violated the Fourth and Fourteenth Amendments of the United States Constitution and Article VI, § 1 and § 11 of the South Dakota Constitution.
      Conclusion of Law 10, Labine, No. 06-366 (Lawrence County, August 16, 2006).

      . Both Officer Symonds and Trooper Swets testified they did not believe they were in any danger.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 47
    Joni Packard LARSON, Plaintiff and Appellee, v. Rick LARSON, Defendant and Appellant.
    No. 24170.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided May 2, 2007.

      Richard A. Johnson, Gregory T. Brewers of Strange, Farrell & Johnson, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Lee R. Burd, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Joni Packard Larson (Joni) filed for divorce from her husband, Rick Larson (Rick), citing irreconcilable differences. Rick appeals the trial court’s valuation of his business, Larson Cable Trailers, Inc., and Joni’s equine business. We affirm.

FACTS

[¶ 2.] Joni and Rick began living together in 1991 and were married on April 8, 2000. Rick operated two businesses, which were largely intertwined. Rick made the majority of his income from his 30% interest in Larson Digging, Inc., a family owned construction company that buried fiber optic and power cables. Rick had also recently incorporated Larson Cable Trailers, a company which constructed and sold trailers used to transport fiber optic cables.

[¶ 3.] At trial, Joni’s accountant Paul Thorstenson (Thorstenson) gave his opinion of the value of Rick’s business entities including Larson Cable Trailers. Thor-stenson valued Larson Cable Trailers at $0 because the business was new and lacked an operating history. Thorstenson characterized the business as growing with solid footing in terms of cash flow. The business, as of March 5, 2005, owed $113,000.00 to Farmers and Merchants Bank (F & M Bank). Thorstenson testified that if the corporation were liquidated, the company’s assets were sufficient to pay the debt. Consequently, Thorstenson concluded that the value of the company “cannot be less than zero under any standard of value ... If this entity was going to be sold, it would be sold for nothing less than zero.”

[¶ 4.] An F & M Bank official testified that on the date of trial Larson Cable Trailers had loans totaling $180,000.00 and that Larson Digging had loans totaling $475,000.00. A number of parties guaranteed the loans. Rick’s mother personally guaranteed the loans to Larson Digging, Larson Digging guaranteed the loans to Larson Cable Trailers, and Rick personally guaranteed the loans to both Larson Digging and Larson Cable Trailers.

[¶ 5.] In 1995 while the couple lived together but before they married, Joni began a business raising, training, breeding and selling horses. The business was not profitable, and Joni often paid for business expenses with money from the couple’s joint account. Rick’s expert equine appraiser valued the horses as follows: $93,900.00 acquired while living together, $38,850.00 acquired while married, and $78,250.00 foaled while married. His proposed property division included all the horses acquired before and after the marriage.

[¶ 6.] Joni testified based on her records that the value of the horses they acquired while married was $11,650.00 and the value of horses acquired prior to the marriage was $137,900.00. Her testimony and proposed property division did not separate the horses foaled while married. She proposed that all the horses acquired before the marriage not be included in the marital estate.

[¶ 7.] The trial court found that “[w]hile Joni’s horse business may look good on paper, it is doubtful that it can survive for long without Rick’s financial contributions.” Based on the evidence, the trial court set the value of the horses as follows: $57,900.00 horses acquired while living together, $28,250.00 horses acquired while married, and $55,250.00 horses foaled while married.

[¶ 8.] The trial court awarded Rick total assets of $252,079.90 and Joni total net equity of $279,246.00 (assets of $290,290.00 minus debts of $11,044.00). Rick appeals and raises the following issues:

ISSUES

1. Whether the trial court erred in failing to credit Rick for the corporate debt that he personally guaranteed.
2. Whether the trial court erred in considering Joni’s opinion of the value of the horses in arriving at the value of the equine business.

STANDARD OF REVIEW

[¶ 9.] “[T]he valuation of property involved in a divorce proceeding will not be overturned unless it is clearly erroneous.” Edinger v. Edinger, 2006 SD 103, ¶ 6, 724 N.W.2d 852, 854. “ ‘All conflicts in evidence must be resolved in favor of the trial court’s findings.’ ” Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80 (quoting Grode v. Grode, 1996 SD 15, ¶ 5, 543 N.W.2d 795, 799). “The omission of assets which should properly be included as marital property is an abuse of discretion.” Midzak v. Midzak, 2005 SD 58, ¶ 16, 697 N.W.2d 733, 738 (additional citations and quotations omitted). The trial court’s conclusions of law are reviewed under the de novo standard of review. Id. ¶ 14.

ANALYSIS

1. Rick’s Personal Guarantees

[¶ 10.] Rick argues that the trial court erred by not including the amount of debt of Larson Cable Trailers that he personally guaranteed. Rick does not dispute the trial court’s valuation of Larson Cable Trailer’s at $0. However, Rick claims that the trial court abused its discretion when it failed to reduce his total assets by the amount of his personal guarantee, which he believed was $199,604.00.

[¶ 11.] Joni argues that Rick’s personally guaranteed loan is a contingent liability that was appropriately disregarded for purposes of computing Rick’s net assets. This Court has discussed contingent liabilities in the context of divorce cases on prior occasions. In Wallahan v. Wallahan, this Court considered whether the trial court erred when it refused to apportion $384,000.00 in contingent liabilities between a husband and wife in a divorce action. 284 N.W.2d 21, 25-26 (S.D.1979). In affirming the trial court, we noted that the husband had “testified that the contingent liabilities [were] extremely remote and his ever being held liable on them [was] highly unlikely.” Id. at 26. We stated, “ ‘[Contingent liabilities that may never be paid or that may be paid only in part need not be deducted in determining net worth.’ Speculative contingent liabilities should not be considered in apportioning the parties’ assets for purposes of a property division.” Id. (quoting Wahl v. Wahl, 39 Wis.2d 510, 159 N.W.2d 651, 659 (1968)).

[¶ 12.] We examined contingent liabilities again in Hansen v. Hansen, where we determined that two loans were not speculative or contingent liabilities because both the husband and wife testified that these debts existed and that the husband had made efforts to repay the debts. 302 N.W.2d 801, 802-03 (S.D.1981) (holding that the trial court’s finding that the loans were contingent was clearly erroneous). We offered the following explanation of contingent liabilities:

Generally, something is a contingent liability when it depends upon some future event, which may or may not happen, thereby making it uncertain whether it will ever become a liability. Similarly, the word “speculative” has been found to have varying meanings. It is “(s)ome-times ... used as ... a conclusion reached by the faculty or process of intellectual examination, search, and reasoning; sometimes as meaning conjecture, guesswork, and surmise.”

Id. at 803 (internal citations omitted).

[¶ 13.] Based on Thorstenson’s testimony, Rick’s personal guarantee on the loan can fairly be characterized as a contingent liability. In placing a $0 value on Larson Cable Trailers, Thorstenson considered Rick’s personal guarantee. Thorstenson testified that notwithstanding the loan, the business would not sell for less than $0. He further stated that if the company were forced into bankruptcy, Rick would not have to pay the loan because “the assets of the company, the inventory and receivables, and the equipment would be very sufficient to repay that bank loan.” Thor-stenson also testified that at the time of trial, there was “no indication of bankruptcy because [of] the good cash flow coming into [the business] this year.... [Larson Cable Trailers] looks like it’s on its way to becoming a profitable company.”

[¶ 14.] An F & M bank official testified that Rick had personally guaranteed loans to the two businesses totaling $670,467.35. Larson Cable Trailers’ portion of the loan was $180,000.00. In addition, Larson Digging had guaranteed the loan to Larson Cable Trailers making its assets a source of payment if the need arose.

[¶ 15.] However, there was nothing in the record to indicate that bankruptcy or voluntary dissolution were on the horizon nor was there any evidence that F & M Bank had initiated an action to collect on Rick’s personal guarantee. Even if these unlikely events were to occur, evidence indicated that the business assets would cover the loan. Therefore, if the guarantees were enforced, Rick would not be the only liable party nor would he be responsible for the entire amount. Accordingly, the trial court’s failure to deduct the contingent liability of Rick’s personal guarantee from his total assets was not an abuse of discretion.

2. Valuation of Joni’s Equine Business

[¶ 16.] Rick also argues that the trial court erred when it accepted Joni’s valuation of the horses she had raised and sold during their relationship. Rick argues that the trial court should have accepted the expert testimony of Joan Harmon because (1) Harmon was a disinterested witness and (2) Joni failed to offer “hard evidence” of the value of the horses other than her own personal opinion.

[¶ 17.] The fact that Joni was an interested party did not preclude her from offering testimony as to the value of the horses used in her equine business. “[A] business or property owner is clearly qualified to testify to the value of his business or property.” Behrens v. Wedmore, 2005 SD 79, ¶ 65, 698 N.W.2d 555, 580. Joni had been training, raising, breeding, and selling horses for over twenty years and was qualified to offer an opinion as to their value.

[¶ 18.] Rick also argues Joni was required to produce “hard evidence” of the value of the horses other than her own personal opinion. Schwab v. Schwab, 505 N.W.2d 752 (S.D.1993). Rick emphasizes the following language in Schwab v. Schwab: “In the absence of a stipulation as to the value of marital assets, the parties must ‘produce hard evidence as to those values other than their own personal opinions.’ ” Id. at 755 (quoting Studt v. Studt, 443 N.W.2d 639, 641 (S.D.1989)). Because the parties did not stipulate to the value of the horse business, Rick argues that Joni had to produce “hard evidence” to establish the value of the horse business other than her personal opinion.

[¶ 19.] The term “hard evidence” was taken from Hanks v. Hanks, a divorce case where both the husband and wife offered their personal opinions as to the value of the marital home and the husband’s law practice. 296 N.W.2d 523, 526 (S.D.1980). In affirming the trial court’s valuation of these marital assets, this Court made the following comment:

Where the parties come into the trial court without even a stipulation as to the values, then they had better be prepared to produce hard evidence as to those values other than their own personal opinions. Based upon the lack of such evidence in this record, we are not going to say that the trial court was in error in the valuations that it set. “Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn.1979).

Id. (emphasis added). In Martin v. Martin we again considered the trial court’s valuation of marital assets and offered the following explanation of the “hard evidence” language in Hanks:

As we held in Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980), it is the obligation of the parties to provide the trial court some competent evidence in addition to their own personal testimony regarding the value of their property. The trial court should not be expected to go on a treasure hunt of its own to try to ferret out evidence that it is the parties’ duty to provide.

358 N.W.2d 793, 798 (S.D.1984). Later, in Studt v. Studt, we said “the parties must ‘produce hard evidence as to those values other than their own personal opinions.’ ” 443 N.W.2d at 641 (quoting Hanks, 296 N.W.2d at 526) (emphasis added). The origin of the “hard evidence” language indicates that Studt and Schwab should not be read to require the trial court to reject proposed valuations of marital assets simply because they are based on a party’s personal opinion. This language more accurately serves as a reminder that it is the duty of the parties, not the trial court, to produce competent evidence regarding the value of their property. Martin, 358 N.W.2d at 798. Therefore, we move to the trial court’s valuation of Joni’s horse business.

[¶ 20.] Wfiiile the parties have the task of producing evidence regarding the value of their property, the trial court, as the trier of fact, has the task of placing a valuation on the marital assets. In doing so, “the trial court is not required to accept either party’s proposed valuation.” Christians v. Christians, 2001 SD 142, ¶ 12, 637 N.W.2d 377, 380 (citing Johnson v. Johnson, 471 N.W.2d 156, 162 (S.D. 1991) (stating that “[t]he trier of fact is free to accept all of, part of, or none of the expert’s opinion.”)) (additional citations omitted). However, the value the trial court places upon the marital assets must be within a reasonable range of values presented to the court. Id.

[¶ 21.] Joni testified at length in regard to her involvement in the horse industry over twenty years of owning, breeding, training, and selling horses. She described in detail the horses purchased, sold, deceased or foaled before and after the marriage. In her opinion, she valued her marital share of the horses including the foaled horses at $11,650.00 and her premarital share at $137,900.00. In contrast, Rick’s expert observed the horses once, over a year before trial. The expert valued the horses purchased prior to the marriage at $93,900.00, those purchased after the marriage at $38,850.00 and those foaled during their marriage at $78,250.00. Rejecting Joni’s request to exclude all the premarital horses in the marital estate, the trial court included a premarital amount of $57,900.00. The trial court set the value of the horses acquired while married at $28,250.00, which was lower than Rick’s value of $38,850.00 but higher than Joni’s value of $11,650.00. Likewise, the $55,250.00 value of the horses foaled while married was set lower than Rick’s value and higher than Joni’s since she had included them in the $11,650.00 figure. Accordingly, the trial court’s valuation fell within the range of values presented to the court. Therefore, we cannot say that the trial court’s valuation was clearly erroneous.

3. Appellate Attorney Fees

[¶ 22.] Rick and Joni both filed motions for appellate attorney fees accompanied by itemized statements of expenses. “To determine whether attorney fees are proper in domestic relation cases, we consider, ‘the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.’ ” Dejong v. Dejong, 2003 SD 77, ¶ 30, 666 N.W.2d 464, 471 (quoting Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989)) (additional citations omitted). Considering these factors under the facts of this case, we determine that each party shall be responsible for their own attorney fees.

[¶ 23.] Affirmed.

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


author: ZINTER, Justice.

text:
    2007 SD 45
    Leander CLAY and James Smith, Plaintiffs and Appellants, and Kenneth Muetze, Plaintiff, v. Douglas WEBER, Individually, Tim Reisch, Individually, and Jeff Bloomberg, Individually, Defendants and Appellees.
    No. 24247.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided May 2, 2007.

      Leander Clay, James Smith, South Dakota State Penitentiary, Sioux Falls, South Dakota, Pro se appellants.
    James E. Moore, Sander J. Morehead of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Leander Clay, Kenneth Muetze, and James Smith (collectively referred to as Inmates) reside in the South Dakota State Penitentiary (SDSP). They brought this suit for declaratory judgment against prison administrators Douglas Weber, Tim Reisch, and Jeff Bloomberg (collectively referred to as Administrators). The suit arose as a result of the Inmates’ alleged: loss of personal property; diversion of money from their inmate accounts; removal of computers and word processors; and closing the law library. The circuit court granted summary judgment for the Administrators based on statutory immunity, and the Inmates appeal. We affirm, but for different reasons.

Facts and Procedural History

[¶ 2.] According to the Statement of Undisputed Material Facts submitted by Administrators, Weber is the Warden of the SDSP. Reisch is the Secretary of the South Dakota Department of Corrections, and Bloomberg is the former Secretary.

[¶ 3.] While incarcerated, Smith and Clay were both found guilty of “major infractions” of prison rules. As a result of those infractions, both complain that they were impermissibly disciplined by being deprived of certain personal property in their cells for a period of one year. All three Inmates also alleged that money was improperly taken from their inmate accounts. This money was either earned while working in the SDSP or it was sent to the Inmates by others. Smith further complains about a change in prison policy, prohibiting inmates from owning word processors or computer systems. Smith finally complains that Weber closed the prison legal library.

[¶ 4.] The legal theory underlying all these complaints is the argument that the Administrators were acting without authority because the “policies” at issue were invalid as they had not been formally adopted as an administrative rule. Inmates phrase the legal issue as whether: “Bloomberg and Weber ... in effect repealed Article XIV section 2 of the [South Dakota Constitution] and SDCL 1-26A-2 ... [because they] established rule of the DOC by Policy.[] Repealing 307 [sic ] of the [Administrative Rules of South Dakota] without authority of law.” The complaint specifically disclaims any violation of federal constitutional or statutory law.

[¶ 5.] Following the submission of briefs and an opportunity to submit supporting and opposing materials, the circuit court granted summary judgment without a hearing. The circuit court dismissed Inmates’ claims concluding that the Administrators were entitled to statutory immunity under SDCL §§ 3-21-8 and 3-21-9. Inmates appeal raising two issues:

1. Whether the circuit court erred in concluding that the Inmates’ claims were barred by statutory immunity.
2. Whether the circuit court erred in granting summary judgment without a hearing.

Standard of Review

[¶ 6.] Our standard of review is well-settled:

“Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Krier v. Dell Rapids Twp., 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-45 (citing SDCL 15-6-56(c)). “Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied.” Id. (citation omitted). “We review questions of law de novo with no discretion given to the circuit court.” Wagner v. Brownlee, 2006 SD 38, ¶ 24, 713 N.W.2d 592, 600 (citing Blenner v. City of Rapid City, 2003 SD 121, ¶ 41, 670 N.W.2d 508, 514).

Pauley v. Simonson, 2006 SD 73, ¶ 7, 720 N.W.2d 665, 667. “We will [also] affirm the circuit court on summary judgment if it is correct for any reason.” A-G-E Corp. v. State, 2006 SD 66, ¶13, 719 N.W.2d 780, 785 (citations omitted).

Decision

[¶ 7.] We initially note that although we affirm the circuit court, we do not rely upon the circuit court’s rationale that statutory immunity barred this action. A substantial portion of this action was a request for declaratory judgment, and we have not been presented with argument or authority that statutory immunity from liability applies to declaratory actions seeking declaratory and injunctive relief. Generally, immunity does not bar such relief. See Dakota Systems, Inc. v. Viken, 2005 SD 27, ¶¶ 8-9, 694 N.W.2d 23, 27-28 (discussing declaratory relief and sovereign immunity). Furthermore, the statutes at issue only provide immunity from liability for damages. See SDCL 3-21-8 and SDCL 3-21-9 (stating: “No person, political subdivision, or the state is liable.... ”). For both reasons, the immunity statutes were not a basis for summary judgment on the Inmates’ claims for declaratory and injunctive relief.

[¶ 8.] Consequently, we decline to address the statutory immunity claim. Instead, we address Inmates’ underlying legal theory that the Administrators were acting without authority of law because they were acting pursuant to policies rather than lawfully adopted administrative rules. Inmates claim that the Administrators acted without authority in four areas: taking of money, taking of personal property, taking of computers, and closing the law library.

Taking of Money

[¶ 9.] The only record evidence indicating why Inmates’ money was taken is a letter from Weber to Muetze in answer to Muetze’s request for an administrative remedy on this issue. The letter indicated that the SDSP took the money for the Inmates’ cost of incarceration. The pleadings suggest it was taken while the Inmates were working at Private Sector Prison Industries. The Inmates’ briefs and the circuit court’s opinion do not provide further clarification.

[¶ 10.] SDCL 24-2-28 provides that: “Each inmate under the jurisdiction of the Department of Corrections is liable for the cost of the inmate’s confinement....” Furthermore, the Department is authorized by statute to take these costs from inmate accounts:

Each inmate is liable for court-ordered fines, costs, fees, sanctions, and restitution and any obligation incurred while under the jurisdiction of the Department of Corrections.... Disbursement shall be made from an inmate’s institutional account to defray the inmate’s obligation, regardless of the source of the inmate’s funds, including moneys in the inmate’s institutional account ... and wages earned by the inmate....

SDCL 24-2-29. Therefore, even if there were no administrative rules formally adopted under SDCL ch 1-26, the Administrators had statutory authorization for the diversion of the Inmates’ money. Consequently, we conclude that the Administrators’ diversion of money from the Inmates’ accounts was not unlawful, and the circuit court properly dismissed.

Personal Property

[¶ 11.] Smith and Clay claim that their alleged loss of personal property as a disciplinary punishment was unlawful. The property was removed under Department of Corrections Policy 8C.4. Policy 3C.4 provides: “Inmates will be subject to the forfeiture of personal property items as sanction for Category 5 and Category 4 Prohibited Acts.” Smith and Clay allege that Policy 3C.4 impermissibly expanded by “policy” the statutory disciplinary sanctions authorized in SDCL 24-2-9 and SDCL 24-15A-4.

[¶ 12.] However, the Department of Corrections was specifically authorized by statute to “prescribe departmental policies and procedures for the management of its institutions and agencies, including inmate disciplinary matters.” SDCL 1-15-20 (emphasis added). Therefore, Policy 3C.4 was authorized by statute. Consequently, even if there were no validly enacted administrative rule governing the loss of personal property privileges for Inmates’ rule infractions, the Administrators were authorized to act by policy rather than rule in this area.

Computers and Word Processors

[¶ 13.] We do not reach the merits of Smith’s claim concerning the loss of computers and word processors because his claim is barred by res judicata.

The doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue actually litigated or which could have been properly raised and determined in a prior action. Matter of Estate of Nelson, 330 N.W.2d 151 (S.D. 1983); Schmidt v. Zellmer, 298 N.W.2d 178 (S.D.1980); Gottschalk v. South Dakota State Real Estate Comm’n, 264 N.W.2d 905 (S.D.1978)....
For the purposes of res judicata, a cause of action is comprised of the facts which give rise to, or establish, the right a party seeks to enforce. Carr v. Preslar, 73 S.D. 610, 47 N.W.2d 497 (1951); Jerome v. Rust, 23 S.D. 409, 122 N.W. 344 (1909). In Golden v. Oahe Enterprises, Inc., 90 S.D. 263, 240 N.W.2d 102 (1976), we approved of the test adopted in Hanson v. Hunt Oil Co., 505 F.2d 1237 (8th Cir.1974), for determining if both causes of action are the same. This test is a query into whether the wrong sought to be redressed is the same in both actions.

Black Hills Jewelry Mfg. Co. v. Felco Jewel Industries, Inc., 336 N.W.2d 153, 157 (S.D.1983) (emphasis in original). If the wrong sought to be redressed is the same in both actions:

A judgment which bars a second action upon the same claim extends not only to every matter offered and received to sustain or defeat the claim or demand, but also to all other admissible matters which might have been offered for the same purpose. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876); Hanson v. Hunt Oil Company, 505 F.2d at 1239; Ramsey Tp., McCook County v. Lake, 68 S.D. 67, 298 N.W. 356 (1941); Chicago and Northwestern Railway Co. v. Gillis, 80 S.D. 617, 129 N.W.2d 532 (1964). If, however, the second action is based upon a different claim or demand, the prior judgment precludes further consideration only of those issues which were actually litigated and determined ....

Golden, 90 S.D. at 276, 240 N.W.2d at 109.

[¶ 14.] Smith was a member of another group of inmates who brought a prior action in federal court claiming that this policy change involving inmate ownership of computers and similar equipment violated South Dakota law and their constitutional right of access to the courts. The federal court dismissed that case for failure to state a claim. Waff v. South Dakota Dep’t of Corr., CIV 99-4045 (DSD 2001), aff'd in part and rev’d in part by Waff v. South Dakota Dep’t of Corr., 51 Fed.Appx. 615 (8th Cir.2002) (unpublished). The district court’s order following the Eighth Circuit’s decision noted that Smith had been dismissed from the suit and that he had not appealed that dismissal.

[¶ 15.] In this proceeding, Smith again alleges that the loss of his computer violated due process under the State Constitution. However, this claim either was or could have been asserted in the prior federal suit.

It is settled law in South Dakota that a judgment subject to res judicata “constitute[s] an absolute bar against the prosecution, not only of every claim or demand therein in controversy, but also of all other admissible matters that might have been offered to sustain or defeat such claims or demands.”

Weddell v. Weber, 2000 SD 3, ¶ 39, 604 N.W.2d 274, 283-284 (quoting Cochrun v. Solem, 397 N.W.2d 94, 96 (S.D.1986)) (emphasis in original). Because Smith’s current claim either was or could have been offered to sustain his claim in the federal suit, his current claim is barred by res judicata or collateral estoppel. See also Grand State Property, Inc. v. Woods, Fuller, Shultz, & Smith, P.C., 1996 SD 139, ¶ 12, 556 N.W.2d 84, 87 (listing the four factors of collateral estoppel).

Law Library

[¶ 16.] Smith’s final claim involves the alleged closing of the law library. However, this claim is also barred by res judicata and collateral estoppel. The federal suit also involved the question whether the closing of the law library denied access to the courts. See supra, ¶¶ 13-14. Smith raises the same argument here under the State Constitution. His complaint alleged that: “In order to satisfy the [South Dakota Constitution’s] mandate requiring meaningful access to courts Article VI of the SDC. \sic ] Plaintiffs were provided with a legal library.... Weber closed the legal library.” Because this is the same issue, and Smith’s legal claim either was or could have been considered in the federal suit, it is barred by res judicata or collateral estoppel. See supra, ¶ 13.

2. Motion Hearing

[¶ 17.] Inmates finally argue that because there was no hearing on the summary judgment motion, they ‘Svere not allowed to demonstrate the existence of a genuine issue of material fact.... A hearing would have allowed [them] to show a clear violation of Article XIV Section 2.” They claim that “since there were questions of constitutional nature as to [Administrators’] failure to properly carry out their ministerial duties a hearing should have been held.” (Inmate’s Br. 3) (emphasis added). However, as discussed supra, n. 5, the ministerial/discretionary distinction would have been immaterial in considering the Administrators’ entitlement to statutory immunity under SDCL §§ 3-21-8 and 3-21-9. Therefore, even if Inmates were prevented from developing a factual record relating to the ministerial/discretionary duty distinction, that defect would not have precluded summary judgment because it did not prevent the articulation of a genuine issue of material fact.

[¶ 18.] But more fundamentally, we note that Inmates do not argue that they were denied the opportunity to file any pleadings, depositions, answers to interrogatories, admissions or affidavits demonstrating the existence of questions of material fact on any issue. See SDCL 15-6-56(c). We also note that Inmates’ response to the motion for summary judgment did not attempt to raise any issues of fact. They resisted the Administrators’ summary judgment motion simply: “based on a supporting brief, [the] statement of uncontested Facts, [sic ] and [the] evidence attached to the statement of uncontested facts.” Considering their response and the fact that the circuit court may hear evidence on motions by affidavit, oral testimony or deposition, SDCL 15-6-43(e), the lack of a hearing did not deny Inmates an opportunity to oppose summary judgment by identifying material issues of disputed fact. We finally observe that, “oral testimony at summary judgment motion[ ] hearings should be allowed only in rare circumstances and for the exclusive purposes of clarification or correction.” Millard v. City of Sioux Falls, 1999 SD 18, ¶ 12, 589 N.W.2d 217, 219. And here, Inmates have not argued that oral argument was necessary for clarification or correction.

[¶ 19.] For the foregoing reasons, the judgment of the circuit court is affirmed.

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

      . Inmates did not object to the Administrators’ Statement of Undisputed Facts. Therefore, we accept them as the undisputed material facts governing this case.

      . Article XIV section 2, governs charitable and penal institutions, providing that: “The state institutions provided for in the preceding section shall be governed under such rules and restrictions as the Legislature shall provide.”
      SDCL 1-26A-2 provides that generally, the Administrative Rules of South Dakota are the rules of executive state agencies.

      . SDCL 3-21-8 provides:
      No person, political subdivision, or the state is liable for failure to provide a prison, jail, or penal or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, programs, facilities, or services in a prison or other correctional facility.
      SDCL 3-21-9 provides:
      No person, political subdivision, or the state is liable for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release, or for any injury caused by or resulting from:
      (1) An escaping or escaped prisoner;
      (2) An escaping or escaped person;
      (3) A person resisting arrest;
      (4) A prisoner to any other prisoner; or
      (5) Services or programs administered by or on behalf of the prison, jail, or correctional facility.

      .Inmates raise other issues in their brief to this Court. Because these issues were not raised before the circuit court, we decline to address them.

      . We do, however, observe that Inmates mistakenly argue that the activities of the Administrators were ministerial, and therefore Administrators were not entitled to statutory "immunity.” Because the ministerial/discretionary distinction is not within the text of SDCL 3-21-8 and SDCL 3-21-9, that distinction is not relevant to the Administrators’ entitlement to this statutory immunity. The distinction is only relevant under sovereign immunity. See generally Wulf v. Senst, 2003 SD 105, ¶ 20, 669 N.W.2d 135, 142. Therefore, even if statutory immunity were to be applied in this case, the ministerial/discretionary distinction would be immaterial.

      . Under the complaint, statutory immunity was only relevant to the Inmates' claim for damages for the loss or destruction of their personal property.

      . Concerning the necessity of rules, we note that: "The Department of Corrections may promulgate rules ... to implement.... Deductions from prison industries revenues or inmate wages to be contributed to a crime victim assistance or compensation program. ...” SDCL 24-7-3. This statute is permissive and does not mandate the adoption of administrative rules.

      . Inmates' complaint also alleged that DOC Policy IB-10, Inmate Accounts and Financial Responsibility, “was not adopted pursuant to Chapter 1-26 as required by SDCL 1 — 15— 20(5) and SDCL 24-7-3. DOC policy IB-10 violates SDCL 1-15-2.1 and SDCL 24-7-3.” However, this policy was not included in the record. Therefore, we do not consider it. " '[T]he ultimate responsibility for presenting an adequate record on appeal falls upon the appellant.' " Toben v. Jeske, 2006 SD 57, ¶ 11, 718 N.W.2d 32, 35 (quoting Caneva v. Miners & Merchants Bank, 335 N.W.2d 339, 342 (S.D.1983)).

      . SDCL 24-2-9 provides:
      Any inmate violating the rules or institutional policies is subject to any one or more of the following disciplinary sanctions:
      (1) Withholding of statutory time for good conduct;
      (2) Punitive confinement;
      (3) Imposition of fines;
      (4) Restriction of privileges;
      (5) Loss of work or school privileges;
      (6) Additional labor without compensation;
      (7) Referral to various programs;
      (8) Transfer to a more secure housing unit;
      (9) Change in classification status.
      No corporal punishment may be inflicted upon inmates in the penitentiary.
      SDCL 24-15A-4 provides:
      Any inmate violating the rules or institutional policies is subject to any of the following disciplinary sanctions:
      (1) Disciplinary segregation;
      (2) Imposition of fines;
      (3) Loss of privileges;
      (4) Additional labor without compensation;
      (5) Referral to various programs;
      (6) Transfer to a more secure housing unit;
      (7) Change in classification status.
      No corporal punishment may be inflicted upon inmates in the penitentiary.

      . The federal court order specified that "the Judgment of Dismissal entered by Judge Jones on August 23, 2001, is the final judgment against ... Smith and [he is] no longer [a party] to this action.”

      . Those inmates specifically "claimed violations of state and federal law-deprivation of property, cruel and unusual punishment, violation of the South Dakota Constitution, and denial of due process and equal protection as well as access to the courts....” Waff, 51 Fed.Appx. at 616, 2002 WL 31641530, at 1.

      . Even if we were to reach the merits of this claim, it is barred. We cannot review the alleged policy disallowing possession of computers because it is not in the record. " '[T]he settled record is the sole evidence of the circuit court’s proceedings, and, when confronted with an incomplete record, our presumption is that the circuit court acted properly.' ” State v. McCrary, 2004 SD 18, ¶ 13, 676 N.W.2d 116, 121 (quoting State v. Jones, 416 N.W.2d 875, 878 (S.D.1987)). "As the party asserting error, [Inmates] had the burden ‘of ensuring an adequate record.' " Id. (quoting State v. Cates, 2001 SD 99, ¶ 18, 632 N.W.2d 28, 36).

      . SDCL 15-6-56(c), dealing with summary judgment, provides in relevant part:
      The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Kenneth Dale CARTER, Appellant.
    No. 04-1271.
    Supreme Court of Iowa.
    April 20, 2007.

      Mark C. Smith, State Appellate Defender, Shellie L. Knipfer, Assistant State Appellate Defender, and Travis Johnson, Drake Student Intern, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Timothy N. Schott, County Attorney, and Jonathan Beaty, Assistant County Attorney, for appellee.
   LARSON, Justice.

Kenneth Carter appealed his conviction for drug possession, claiming that evidence seized from his home was erroneously admitted into evidence. The district court rejected his argument, as did the court of appeals. On further review, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Kenneth Carter was charged with drug offenses based on evidence seized in a March 1997 search of his home. That case was dismissed on application of the State and is not involved in this appeal. After the case was dismissed, the Iowa Department of Revenue and Finance (department) began proceedings under Iowa Code chapter 453B (1997) to collect drug taxes in the amount of $6060, based on Carter’s possession of marijuana plants observed during the March 1997 search. Despite the fact that the criminal case arising out of that possession had been dismissed, the department, on December 4, 1997, obtained an administrative search warrant to search Carter’s home again. A representative of the department and a police officer served the warrant and, in the process, noted marijuana odor and a marijuana pipe. Based on this information, the police officer applied for, and obtained, a criminal search warrant to search Carter’s home again. This search yielded the marijuana that provided the basis for the present prosecution. Carter was convicted, and he appealed. His conviction was affirmed by this court in an unreported decision in 1999. In that decision, we reserved his ineffective-assistance claim for possible postconviction relief proceedings.

On Carter’s postconviction application, the district court set aside his conviction and ordered a new trial. Prior to the new trial, Carter filed a motion to suppress, claiming that the marijuana evidence was seized in violation of his federal and state constitutional rights. The motion did not provide specific grounds for the constitutional arguments, but the district court at the hearing on the motion put the issue in sharp focus:

My understanding is that the legal issue is rather narrowly defined, that says if the officer had the right to be in the place where he was when he made the observations at the time of the execution of the administrative warrant, then the criminal warrant is not invalid. If, on the other hand, he had no right to be where he was because of something improper about the execution or granting of the administrative warrant, then the criminal warrant is no good.

As the district court noted, the administrative search warrant provided the basis for the later issuance of the criminal warrant. Carter contends that the administrative warrant was invalid, and the evidence seized as a result of it was therefore inadmissible under the principle of fruit of the poisonous tree.

II. Standard of Review.

We review challenges to the constitutionality of a statute de novo. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005). Statutes are presumed to be constitutional, and a challenger must prove unconstitutionality beyond a reasonable doubt. Id.; Schroeder Oil Co. v. Dep’t of Revenue & Fin., 458 N.W.2d 602, 603 (Iowa 1990). The challenger must refute every reasonable basis upon which the statute could be found constitutional, and if the statute may be construed in more than one way, we adopt the construction that does not violate the constitution. Iowa Code § 4.4 (“In enacting a statute, it is presumed that: (1) Compliance with the Constitutions of the state and of the United States is intended.”); Seering, 701 N.W.2d at 665.

III. The Statutes.

A. The drug-tax statute in general. Iowa Code chapter 453B imposes an excise tax on dealers of certain controlled substances, including marijuana. See Iowa Code §§ 453B.l(3)(c) (covering marijuana plants), 453B.7 (imposition of tax). The statute does not require a conviction, or even an arrest, for drug dealing in order to impose the excise tax. Id.; see State v. Eames, 565 N.W.2d 323, 324 (Iowa 1997) (conviction of mere possession). At the time of the administrative search in this case, there was not even a pending criminal case.

B. Jeopardy assessments in general. Iowa Code section 422.30 provides for the collection of taxes through jeopardy assessments:

If the director believes that the assessment or collection of taxes will be jeopardized by delay, the director may immediately make an assessment of the estimated amount of tax due, together with all interest, additional amounts, or penalties, as provided by law. The director shall serve the taxpayer by regular mail at the taxpayer’s last known address or in person, with a written notice of the amount of tax, interest, and penalty due, which notice may include a demand for immediate payment. Service of the notice by regular mail is complete upon mailing. A distress warrant may be issued or a lien filed against the taxpayer immediately.

A jeopardy assessment, which is in the nature of an emergency-collection procedure, is defined as “[a]n assessment by the [taxing authority] — without the usual review procedures — of additional tax owed by a taxpayer who underpaid, based on the [tax authority’s] belief that collection of a deficiency would be jeopardized by delay.” Black’s Law Dictionary 112 (7th ed.1999). Jeopardy assessments are part of what we have described as “the department’s sweeping tax collection authority.” Lumbermens Mut. Cas. Co. v. State, 564 N.W.2d 431, 434 (Iowa 1997).

C. Drug taxes and the jeopardy assessment statute. Section 422.30, our general jeopardy assessment statute quoted above, is limited by its terms to cases in which collection by ordinary means will be jeopardized by delay. However, Iowa Code section 453B.9 creates a special presumption that all assessments in drug-tax cases are jeopardy assessments:

All assessments of taxes made pursuant to this chapter shall be considered jeopardy assessments or collections as provided in section Í22.S0. The director shall assess a tax, interest, and applicable penalties based on knowledge or information available to the director; serve the taxpayer by regular mail at the taxpayer’s last known address or in person, a written notice of the amount of tax, interest, and penalty due, which notice may include a demand for immediate payment; and immediately proceed to collect the tax, interest, and penalty by any method prescribed in section 422.30. The period for examination, determination of amount of tax owed, and assessment is unlimited. Service of the notice by regular mail is complete upon mailing.

(Emphasis added.) The effect of this statute is to eliminate in all drug cases any requirement that the director establish the need for the jeopardy assessment or even that he “believes” the assessment is in jeopardy as required by Iowa Code section 422.30 for other jeopardy assessments.

D. The administrative search. Pursuant to section 453B.9, the director issued a distress warrant, directed to the sheriff, ordering him

to forthwith distrain, seize, garnish or levy upon ... any and all real or personal property belonging to the above said delinquent account ... sufficient to satisfy said Tax Liability, plus sheriff & court costs, and to make due and prompt return to the Department of Revenue and Finance in Des Moines, Iowa or the District Court under Chapters 626 & 642, all taxes, penalty, interest penalty, interest and accrued costs so collected

To assist the sheriff in locating assets from which to satisfy the amount of drug tax due, the department applied for an administrative search warrant under Iowa Code section 453B.11:

The director may petition the district court or a magistrate for an administrative search warrant as authorized by section 808.14 to execute a distress warrant authorized by section 422.26.

Section 808.14, in turn, provides authority for courts to issue administrative search warrants “in accordance with the statutory and common law requirements for the issuance of such warrants.”

IV. The Issue.

The issue is whether the criminal search warrant, which yielded the evidence in question in this case, was valid, and that, in turn, depends on whether the administrative search that preceded it was valid. If the administrative search was not valid, the fruits of that search were inadmissible under the principles of the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); cf. Adams v. State, 762 N.E.2d 737, 744 (Ind.2002) (preliminary search under distress warrant revealed drugs leading to criminal warrant).

The defendant argues the searches were invalid under the Fourth Amendment to the United States Constitution and article 1, section 8 of the Iowa Constitution. For purposes of this opinion, we will refer to the rights protected by the federal and state constitutions collectively as “Fourth Amendment rights.” The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The scope and purpose of Iowa’s search and seizure clause is coextensive with the federal court’s interpretation of the Fourth Amendment. State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995). In State v. Eames, we examined section 453B.9 from a standpoint of procedural due process and found that it was constitutional. 565 N.W.2d at 328. However, Fourth Amendment issues were not involved in Eames.

Administrative searches, like searches for evidence of crime, are encompassed by the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 504-05, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486, 495 (1978). In fact, “one of the primary evils intended to be eliminated by the Fourth Amendment was the massive intrusion on privacy undertaken in the collection of taxes pursuant to general warrants and writs of assistance.” G.M. Leasing Corp. v. United States, 429 U.S. 338, 355, 97 S.Ct. 619, 630, 50 L.Ed.2d 530, 545 (1977). Nevertheless, administrative searches are treated differently, for Fourth Amendment purposes, because generally the intrusion on privacy is reduced. See Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930, 940 (1967). An administrative search warrant does not require the probable cause necessary for a criminal warrant. See O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). According to O’Connor,

“[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.” We have concluded, for example, that the appropriate standard for administrative searches is not probable cause in its traditional meaning. Instead, an administrative warrant can be obtained if there is a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied.

Id. at 723, 107 S.Ct. at 1500, 94 L.Ed.2d at 726 (emphasis added) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720, 734 (1985)). Based on this principle, and as applicable to the present case, the validity of an administrative warrant turns on whether “reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” Camara, 387 U.S. at 538, 87 S.Ct. at 1736, 18 L.Ed.2d at 941; accord Marshall v. Barlow’s, Inc., 436 U.S. 307, 320-21, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305, 316 (1978).

With these general principles in mind, we look to the proceedings underlying the administrative search in this case. The application for the administrative warrant was very brief, stating only:

The Department would urge that a finding of the following factual elements would support the issuance of an administrative search warrant:
1) that an assessment of tax has been made against the taxpayer,
2) that notice and demand have been mailed to the taxpayer, and service will be attempted at time of activity,
3) pursuant to section 453B.9 ... this assessment is a jeopardy assessment and subject to immediate collection,
4) the property subject to seizure[] presently exists at the premises sought to be searched and that the property either belongs to the taxpayer or is property upon which a lien exists for the payment of the taxes.

Significantly, the application did not recite facts or even claim that facts existed from which the court could find that the collection of taxes was in jeopardy. In fact, the application did not even state that the administrator “believed” (in the words of section 453B.9) that the assessment was in jeopardy. Exigency, which could show an assessment was in jeopardy, did not seem to be a factor, considering that the department was informed of Carter’s possession of marijuana “soon after” the March 1997 search, but did not apply for the administrative warrant until December 4, 1997. See G.M. Leasing Corp., 429 U.S. at 359, 97 S.Ct. at 631, 50 L.Ed.2d at 547 (two-day delay between observation of materials and entry of premises for purposes of seizure found to defeat claim of exigency).

The administrative search warrant that was issued by the court in response to the department’s application merely stated that “[biased on sworn application made to the court, I have found that probable cause exists to believe” that at the residence of the defendant, property and records may be found relative to the tax assessment. The court made no finding regarding jeopardy.

V. Validity of the Administrative Search.

A. General principles regarding administrative searches. The Supreme Court, in G.M. Leasing Corp., held that a warrantless intrusion into an area protected by the Fourth Amendment was not justified merely because the search was conducted to enforce tax laws. The Court assumed the tax assessments and levies were proper, and the facts “necessarily established] probable cause to believe that assets held by petitioner were properly subject to seizure in satisfaction of the assessments.” Id. at 351, 97 S.Ct. at 628, 50 L.Ed.2d at 542-43. The Court held, however, that the federal statute allowing seizure of property to satisfy tax obligations by “distraint and seizure by any means” “does not refer to warrantless intrusions into privacy.” Id. at 357, 97 S.Ct. at 631, 50 L.Ed.2d at 546. It stated:

The respondents urge that the history of the common law in England and the laws in several States prior to the adoption of the Bill of Rights support the view that the Fourth Amendment was not intended to cover intrusions into privacy in the enforcement of the tax laws. We do not find in the cited materials anything approaching the clear evidence that would be required to create so great an exception to the Fourth Amendment’s protections against war-rantless intrusions into privacy.

Id. at 355, 97 S.Ct. at 630, 50 L.Ed.2d at 545. In answer to the government’s argument in G.M. Leasing Corp. that Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), required a different result, the Court stated:

We do not find in Boyd any direct holding that the warrant protections of the Fourth Amendment do not apply to invasions of privacy in furtherance of tax collection. Insofar as language in Boyd might be read so to state, we decline to follow those dicta into rejection of the basic governing principle that has shaped Fourth Amendment law.

Id. at 356, 97 S.Ct. at 630, 50 L.Ed.2d at 546.

G.M. Leasing Corp. drew a clear line between seizures from areas protected by the Fourth Amendment, such as homes, and seizures from public areas, such as streets.

It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer.

Id. at 354, 97 S.Ct. at 629-30, 50 L.Ed.2d at 545.

Adams is also analogous to the present case in that, during the search of the defendant’s home pursuant to an administrative distress warrant to seize property for drug taxes, officers found illegal drugs. The Indiana statute, like Iowa’s section 453B.9, provided that all assessments for taxes due were considered jeopardy assessments. See Ind. Stat. 6-7-3-13 (“An assessment for the tax due under this chapter is considered a jeopardy assessment. The department shall demand immediate payment and take action to collect the tax due as provided by [statute].”). In Adams the court held that a search pursuant to this section, in which the assessment was deemed per se to be a jeopardy assessment, was unreasonable under the Fourth Amendment because the law gave officers “boundless discretion to intrude upon the privacy of the home,” and noted that there was nothing in the record to suggest the defendant was about to abscond, hide assets, or destroy documents. Adams, 762 N.E.2d at 744. Adams, relying on the principle of fruit of the poisonous tree under Wong Sun, held that evidence seized during the administrative search was inadmissible at the criminal trial because the administrative search that yielded the evidence was unreasonable. Adams, 762 N.E.2d at 745.

G.M. Leasing Corp. and Adams are distinguishable from the present case in that those cases did not involve searches based on court-ordered warrants. G.M. Leasing Corp. involved a search of a premises under the authority of a federal tax collection statute. Adams involved a search of a home under the authority of a state tax collection warrant. While these cases are distinguishable, they are significant because they illustrate the solicitude of courts for Fourth Amendment rights in the face of sweeping tax collection statutes. Moreover, if the administrative search warrant in this case was invalid, as we later conclude it was, the warrant must be disregarded in assessing the Fourth Amendment intrusion.

B. The issuance of the administrative search warrant. Iowa Code section 808.14 provides the statutory basis for administrative search warrants:

The courts and other appropriate agencies of the judicial branch of the government of this state may issue administrative search warrants, in accordance with the statutory and common law requirements for the issuance of such warrants, to all governmental agencies or bodies expressly or impliedly provided with statutory or constitutional home rule authority for inspections to the extent necessary for the agency or body to carry out such authority, to be executed or otherwise carried out by an officer or employee of the agency or body.

Obviously, neither this statute, nor the Fourth Amendment, grant carte blanche authority to courts to issue administrative search warrants. Section 808.14 requires that administrative search warrants be issued “in accordance with the statutory and common law requirements for the issuance of such warrants.” The Fourth Amendment requires that “reasonable legislative or administrative standards for conducting an inspection are satisfied” before an administrative search may be conducted. O’Connor, 480 U.S. at 723, 107 S.Ct. at 1500, 94 L.Ed.2d at 726.

The problem in this case is that Iowa Code section 453B.9, on its face, makes all drug tax assessments jeopardy assessments, thereby opening the door to the issuance of administrative search warrants without the necessity of showing jeopardy and without any reasonable legislative or administrative protections in place as required by the Fourth Amendment. See O’Connor, 480 U.S. at 723, 107 S.Ct. at 1500, 94 L.Ed.2d at 726. As previously discussed, the application for the administrative search warrant did not even claim the assessment was in jeopardy, and the court that issued the warrant made no such finding. In fact, under section 453B.9, no such showing or finding is required; drug tax cases are automatically put on the fast track for collection proceedings, including searches.

VI. The Constitutionality of Iowa Code Section 453B.9.

If a statute is amenable to two interpretations — one that would make it constitutional and the other that would make it unconstitutional — we interpret it in the former manner. See 2A Norman J. Singer, Statutes and Statutory Construction § 45.11, at 70-71 (2000 rev.).

When possible, statutory provisions should be construed in such a way as to avoid unconstitutionality rather than simply void them on the basis of an interpretation which renders them constitutionally infirm. If the law is reasonably open to two constructions, one that renders it unconstitutional and one that does not, the court must adopt the interpretation that upholds the law’s constitutionality. It would also be preferable to construe the statute to support constitutionality rather than to rewrite or try to improve the statute in some other way.

Id.

To construe section 453B.9 to allow the search of a residence without any showing that the assessment is in jeopardy and without any showing of “reasonable legislative or administrative standards” for conducting the search (O’Connor; 480 U.S. at 723, 107 S.Ct. at 1500, 94 L.Ed.2d at 726) would doom the statute under the Fourth Amendment. We decline to construe section 453B.9 that broadly; while the expedited drug tax collection procedure might be permitted under other circumstances, when the Fourth Amendment is not implicated (see G.M. Leasing Corp., 429 U.S. at 354, 97 S.Ct. at 630, 50 L.Ed.2d at 545), it cannot be used under the circumstances of this case to search a premises protected by the Fourth Amendment.

We need not decide whether section 453B.9, in other circumstances, may constitutionally allow-jeopardy assessments for the purpose of locating assets or otherwise aiding in the collection of taxes. We agree with the conclusion by the Indiana court, which limited the holding in Adams:

Our holding that the search of Defendant’s home was unreasonable is a limited one. In this case, government officers intruded upon the privacy of a home. Our conclusion that this intrusion was unreasonable does not affect the Department’s ability to seize assets found in less private contexts. In fact, G.M. Leasing endorsed the government’s power to institute tax liens, seize assets found in public places, and take other basic measures to collect taxes so long as they do not involve warrantless intrusions into the home.

Adams, 762 N.E.2d at 746.

For the reasons discussed, the administrative search violated Carter’s Fourth Amendment rights, and the fruits of that search must be suppressed. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

All justices concur except HECHT and APPEL, JJ., who take no part.