author: AMUNDSON, Justice

text:
    2000 SD 146
    Joe LENDS HIS HORSE, Jr., Claimant and Appellee, v. MYRL & ROY’S PAVING, INC., Employer and Appellant, and Heritage Mutual Insurance Company, Insurer and Appellant.
    No. 21444.
    Supreme Court of South Dakota.
    Argued Sept. 20, 2000.
    Decided Nov. 21, 2000.

      William Jason Groves of Graves, Julius & Simpson, Rapid City, for appellee.
    Kenneth L. Chleborad of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, for appellants.
   AMUNDSON, Justice

[¶ 1.] Myrl & Roy’s Paving Inc. appeals the trial court’s reversal of the Department of Labor’s decision to deny Joe Lends His Horse, Jr. permanent total disability benefits under the Worker’s Compensation Act. We reverse.

FACTS

[¶2.] In 1993, Myrl & Roy’s Paving, Inc. employed Joe Lends His Horse Jr. as a truck driver in Sioux Falls, South Dakota. Besides driving truck, his duties included helping load and unload the truck, run errands, and other various odd jobs. In May of 1994, Lends His Horse sustained an injury to his back while filling a five-gallon bucket. Initially, Lends His Horse went to Dr. Cass at McKennan Hospital in Sioux Falls. Dr. Cass’ initial conclusion was that Lends His Horse suffered an acute temporary injury and prescribed physical therapy. After this initial consultation, he received no other medical treatment for his back in Sioux Falls. He returned to his job a week after the injury and resumed full job duties with no modifications. In August of that same year, Lends His Horse left his job without giving any notice or reason to his employer.

[¶ 3.] After leaving his job, Lends His Horse moved to Rapid City. Shortly thereafter, he received medical treatment through the Public Health Service at Sioux San Hospital. There he saw Dr. Sabow twice, and upon Dr. Sabow’s request, Lends His Horse also saw Dr. Ertz, a psychologist. Although Dr. Sabow believed Lends His Horse’ employment potential was somewhat limited, he did not place any specific limitations or restrictions on Lends His Horse. No further medical treatment was sought by Lends His Horse.

[¶ 4.] Prior to his back injury in 1994, Lends His Horse had other physical limitations which required surgery including a disk rupture in his lower back in 1992, and a foot drop due to weakness in one of his ankles. In addition to his physical limitations, he also suffers from mental maladies, including anxiety, panic attacks, and depression. Since 1984, he has regularly taken prescribed medication for depression. With all these known problems, however, Lends His Horse has never been medically restricted from performing manual labor. Lends His Horse filed a petition for permanent total disability benefits in December of 1994.

[¶ 5.] The Department of Labor denied Lends His Horse’ claim for benefits. The Department found that Claimant’s “testimony regarding his pain was not credible.” The Department also rejected the testimony of Dr. Ertz as “lacking foundation insofar as it relies upon Claimant’s testimony concerning his pain which has been rejected.” Likewise, the Department found that employer met its burden of production of showing regularly and continuously available work for persons of his physical ability-

[¶ 6.] The circuit court, the Honorable Steven L. Zinter presiding, reversed and remanded for further proceedings consistent with its prior order in Johnson v. Albertsons (Civ. No. 93-947, September 15, 1997) that credibility evidence cannot be weighed at the prima facie stage. The Department again denied Lends His Horse benefits as it found him not credible and that he failed to satisfy his ultimate burden of persuasion.

[¶ 7.] Upon the second appeal to the circuit court level, the Honorable Lori Wilbur presiding, reversed the Department’s decision based solely on the finding that employer failed to satisfy its burden of production on the issue of regular and continuous available employment. Myrl & Roy’s Paving appeals. The issue to be decided on appeal is:

Whether the circuit court erred in reversing the Department’s decision to deny odd-lot benefits.

STANDARD OF REVIEW

[¶ 8.] This Court’s scope of review from decisions of administrative agencies is controlled by SDCL 1-26-37, which provides:

An aggrieved party of the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

[¶ 9.] Our standard of review for administrative decisions is found in SDCL 1-26-36, and is well established. We will overrule an agency’s factual determinations only if we find them to be “clearly erroneous” in light of the entire evidence. Conclusions of Law, however, are fully reviewable. Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987). “Whether the claimant made a prima facie case that he belongs in the odd lot total disability category is a question of fact.” Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D. 1991). Thus, the “Department’s determination that claimant failed to make the required prima facie showing will not be overturned unless we find that the determination was clearly erroneous.” Id. “The test is whether after reviewing all the evidence we are left with a definite and firm conviction that a mistake has been made.” Sopko v. C & R Trans. Co. Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228; See also Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992). Due to the deference given the Department, “[w]e do not substitute our judgment for that of [Department] on the weight of the evidence.” Shepherd, 467 N.W.2d at 919.

[¶ 10.] To qualify for odd-lot worker’s compensation benefits, a claimant must show that he or she suffers a temporary or permanent “total disability.” Our definition of “total disability” has been stated thusly:

A person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.

Barkdull v. Homestake Mining Co., 317 N.W.2d 417 (S.D.1982); Shepherd, 467 N.W.2d at 918; Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820, 822 (S.D.1991). Under the odd-lot doctrine, the ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category. If the claimant can make this showing, the burden shifts to the employer to show that some suitable work is regularly and continuously available to the claimant. Shepherd, supra; Tiensvold, supra.

[¶ 11.] We have recognized two avenues in which a claimant may pursue in making out the prima facie showing necessary to fall under the odd-lot category. First, if the claimant is “obviously unemployable,” then the burden of production shifts to the employer to show that some suitable employment will accommodate claimant’s limitations is actually available in the community. Shepherd, 467 N.W.2d at 918; Tiensvold, 464 N.W.2d at 823. A claimant may show “obvious unemployability” by: 1) showing that his “physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category,” or 2) “persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims.” Shepherd, supra, at 918-19. Second, if “ ‘the claimant’s medical impairment is so limited or specialized in nature that he is not obviously employable or regulated to the odd-lot category,’ then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made [ ] ‘reasonable efforts’ to find work” and was unsuccessful. Id. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that “some form of suitable work is regularly and continuously available to the claimant.” Id. (citing Wendel v. Domestic Seed & Supply, 446 N.W.2d 265 (S.D.1989)). Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant. Shepherd, supra, at 918.

ISSUE

[¶ 12.] Whether the circuit court erred in reversing the Department’s decision to deny odd-lot benefits.

[¶ 13.] Based on the history of this case, there appears there is a problem distinguishing between the burden of production and the burden of persuasion. There is no question that Claimant has the ultimate burden to show that he is entitled to odd-lot benefits. Therefore, the central issue is whether Claimant has ultimately met its burden of persuasion: that he or she has proven injury to the degree where odd-lot benefits are an appropriate remedy. Here, Claimant has not met this burden. Though Claimant may have met his burden of production, it cannot be said, in light of the Department’s findings, that he has met his ultimate burden of persuasion.

[¶ 14.] In a workers compensation case, where the claimant’s subjective experience of pain is central to the issue of whether recovery is warranted, the credibility of the claimant is always at issue. Johnson v. Albertson’s, 2000 SD 47, 610 N.W.2d 449; Wagaman v. Sioux Falls Const., 1998 SD 27, 576 N.W.2d 237; Petersen v. Hinky Dinky, 515 N.W.2d 226 (S.D.1994). Nowhere in our prior case law have we held that credibility cannot be attacked at the prima facie stage. To the contrary, we have on several occasions pronounced that credibility of the claimant can be attacked at the prima facie stage. Baker v. Dakota Mining & Constr., 529 N.W.2d 583 (S.D. 1995); Wagaman, supra; Petersen, supra. If we were to hold otherwise, cross-examination would be an exercise in futility, and the truth as to credibility of the claimant may go unchallenged. This Court has never endorsed such an illogical process.

[¶ 15.] “It is incumbent upon [the circuit court] to be duly aware of the opportunity of the [Department] to judge at first hand the credibility of the witnesses.” Matter of J.M.V.D., 285 N.W.2d 853, 855 (S.D.1979). The Department is in a better position than the circuit court to evaluate the persuasiveness of their testimony. Id. If the credibility determinations made by the Department are flawed, the circuit court should review those determinations and set forth its reasons for rejecting them.

[¶ 16.] Moreover, these findings were never specifically addressed at the circuit court level in its reversal of the Department’s decision. The circuit court did not make any Findings of Fact or Conclusions of Law based on the hearing examiner’s credibility determinations. The circuit court also forewent any analysis into whether Claimant met his ultimate burden of persuasion that he was totally and permanently disabled. Rather, the circuit court treated the earlier finding made by another circuit court judge that Claimant met his burden of production to make a prima facie case as conclusive proof that Claimant satisfied his ultimate burden of persuasion.

[¶ 17.] It is plain that the Department is to weigh the evidence and determine the credibility of witnesses to determine whether a claimant has made a prima facie case. Johnson, supra, at ¶ 36; Petersen, supra, at 234. Granted 'there are certain burdens of production that each party must meet. Shepherd, supra, at 918-19. Nevertheless, this process of shifting evidentiary burdens should not replace nor hinder the ultimate substantive burden placed on Claimant. Id. As we have said before, the “Department’s determination that claimant failed to make the required prima facie showing will not be overturned unless we find that the determination was ‘clearly erroneous.’ ” Shepherd, supra, at 919. After reviewing all the evidence, it cannot be said, “we are left with a definite and firm conviction that a mistake has been made.” Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228; Day, 490 N.W.2d at 723. Due to the deference given the Department and the substantial amount of evidence contrary to Claimant’s position, we will “not substitute our judgment for that of [Department] on the weight of the evidence.” Shepherd, supra, at 919.

[¶ 18.] In accordance with SDCL 1-26-36, the circuit court “shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment.” See Schroeder v. DSS, 529 N.W.2d 589, 591 (S.D.1995); State, Div. of Human Rights v. Miller, 349 N.W.2d 42, 45 (S.D.1984). SDCL 1-26-36 “requires the circuit court to make findings of fact and conclusions of law if it modifies or reverses the agency.” Miller, 349 N.W.2d at 45. Without specific findings made by the circuit court, meaningful appellate review is compromised.

[¶ 19.] If we followed the process employed and defended by Claimant, the hearing would be divided into three distinct stages: the prima facie stage of claimant, the burden of production stage of employer, and the ultimate burden of persuasion stage by claimant. No authority exists for such a rigid tripartite process. Bifurcation of an administrative hearing is unnecessary. A party’s opportunity to challenge its opponent’s evidence is essential to the adversarial process and a party need not sit on its hands until the burden of production shifts. An administrative hearing is no place for hyper-technical, nice distinctions that slow the very process for which it was created. The purpose of the administrative hearing in workers’ compensation is to dispense cases in an efficient, speedy, and fair manner. In order to accomplish this purpose, the claimant’s credibility must be in issue throughout the proceeding. This is especially true when the credibility as to claimant’s pain is the threshold and ultimate hurdle.

[¶ 20.] We reverse and reinstate the Department’s decision, as there is ample support for it in the record. Thus, the remaining issues need not be addressed.

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

      . Judge Wilbur received this case on reassignment. The record does not indicate the reason for reassignment.

      . The issue of whether employer met its burden of production as to whether it has shown regular and continuous work available to Lends His Horse does not need to be addressed. Lends His Horse, at the Department level, failed to meet his ultimate burden of persuasion. Thus, a de novo review of the employer's burden under Rank v. Lindblom, 459 N.W.2d 247 (S.D. 1990) would be superfluous.

      . The Department, on remand, made the following Findings of Fact that were never addressed by the circuit court:

      14. Claimant’s testimony concerning his pain is not credible.
      15. Claimant's main complaints are that his back goes “crooked” and that his pain never goes away. Claimant stated that his back can go "crooked” at any time and that if it does, he must either sit or lay down.
      16. Claimant described a typical day as ”[g]et up, drink coffee, watch t.v., take my wife to work at 2:00, come back and watch my two little kids until she gets off work at 10:30. That's it.” Claimant stated that he cannot do anything with his children except just watch them.
      17. Claimant also indicates that his pain prevents him from recreational and social activities. He testified that he cannot sit for a long period of time and that he must constantly change positions.
      18. On a good day, claimant can sit for half the day. On a bad day, he would lay down all day. Overall, Claimant testified that he has a very sedentary lifestyle.
      19. Employer presented a surveillance video showing Claimant performing various activities and some of these activities were quite physically demanding.
      20. The video demonstrated that Claimant's pain is not as severe as he claims and that his activities are not as limited as he testified. The activities shown on the tape directly contradict Claimant’s testimony that he has a sedentary lifestyle or that his pain prevents him from many activities.

        21. During the first sequence on the video surveillance, Claimant is scraping ice off his windows. The ice appears to be very thick and Claimant is able to lean over at the waist for several minutes as he scrapes. Claimant does not appear to be in any kind of pain as he exerts himself, and he [is] able to move about easily. Claimant is able to get in and out of his car without any apparent difficulty.
      22. In the next sequence of the video surveillance, Claimant gets out of his car, picks up a child out of the back seat, and walks around the back of the car carrying the child in one arm. He appears to slip, maintains his balance, and then is able to walk very easily afterwards. Later, Claimant is carrying a child in an infant seat. He bends down to place the child on the ground, he opens the back door of his car and leans into the back seat for a time. Claimant takes an infant seat out of the back, bends over to pick up the child and then leans over again to put the child in the back seat. All this activity takes a few minutes. At no time during this sequence did Claimant display any type of movement that indicated he was in pain.
      23. Another sequence on the surveillance tape shows Claimant standing in the entryway of a garage for approximately six minutes. Claimant then walks to his car, carrying a tire in one hand and then drops the tire on the ground. During the next ten minutes, Claimant is able to walk, stand, bend over, lean on a tire, pick up a tire, and move about seemingly without any difficulty. Claimant bends over two times to pick up tires with one hand and put them in his truck. Claimant actually bends over several times to put other items in his trunk. During these activities, Claimant clearly did not appear to be in any pain. Claimant did not demonstrate the actions of someone who claims to be in contiguous, severe and debilitating pain.
      24. During another sequence on the video surveillance, Claimant is at a park with family or friends having a picnic. During the course of this picnic, Claimant is able to walk, stand, run, bend, lift, kneel, squat and even lay on a picnic table bench with no apparent difficulty. Throughout all of these activities, Claimant did not display any outward physical indications of disability or that he was experiencing pain.
      25. Overall, the video surveillance taped showed Claimant being very physically active. The tape certainly did not portray a person in contiguous, severe and debilitating pain. The surveillance tape provides further support that Claimant has the ability to work.
      26. Based on the evidence presented by employer and on the observations made of Claimant during the hearing, Claimant’s testimony concerning his pain or any self-limitation is not credible.
      27. Claimant has the ability to work. Based on Harrow’s testimony, there are jobs available Claimant can perform.
      28. Claimant has not met his burden of persuasion that he is permanently and totally disabled.
      29. Claimant's request for total disability benefits is denied.


source: Caselaw Access Project

author: GILBERTSON, Justice

license: Public Domain

text:
    Amber TAPIO and Sunny Big Eagle, Plaintiffs and Appellees, v. GRINNELL MUTUAL REINSURANCE COMPANY, also known as The Grinnell Mutual Group Company, Defendant and Appellant, and Delores Sazue, Defendant.
    No. 21283.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Nov. 29, 2000.

      Lee C. “Kit” McCahren of Olinger, Lo-vald, Robbennolt and McCahren, Pierre, Attorneys for plaintiffs and appellees.
    John H. Billion of May, Johnson, Doyle & Becker, Sioux Falls, Attorneys for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Amber Tapio and Sunny Big Eagle (Tapio) brought a declaratory judgment action against Grinnell Mutual Reinsurance Company (Grinnell) to determine whether Grinnell was obligated to provide coverage to Delores Sazue, the named insured on a policy issued by Grinnell. Grinnell appeals from an order granting summary judgment in favor of Tapio. We reverse.

FACTS AND PROCEDURE

[¶ 2.] There is no dispute as to the facts leading up to this appeal. On March 28, 1997, Sean Sazue was driving a car owned by his mother, Delores Sazue. While driving the vehicle, Sean negligently collided with Tapio. At all times material to this action, Delores’ vehicle was insured by a policy issued by Grinnell. Included with that policy was a Driver Restriction Endorsement (endorsement). This endorsement was signed by Delores and stated that “[i]t is agreed that this policy will not provide coverage for any accident or claim while any vehicle is being operated by Sean Andrew Sazue.”

[¶ 3.] Tapio brought a personal injury lawsuit against Sean for his personal negligence and separately against Delores for negligent entrustment of her vehicle to Sean, to recover for injuries sustained in the accident. The lawsuit against Sean was settled for the policy limits of his personal insurance, leaving only the negligent entrustment claim against Delores. Grinnell claimed that because the endorsement excludes coverage for any accident or claim while the vehicle is being operated by Sean, it also excludes coverage for the claim against Delores. Because the negligent entrustment claim arose out of Sean’s operation of Delores’ vehicle, Grinnell claimed that no coverage existed.

[¶ 4.] Tapio then initiated this declaratory judgment action to determine Grinnell’s duties under the policy. Both sides moved for summary judgment. After a hearing, the trial court entered summary judgment in favor of Tapio. Grinnell appeals, raising this single issue:

Whether the trial court erred in concluding that Grinnell’s driver restriction endorsement did not exclude coverage to the named insured.

STANDARD OF REVIEW

[¶ 5.] The standard of review of a circuit court’s order of summary judgment is well settled and was recently reiterated in Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787.

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.” SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

Id., ¶ 8, 610 N.W.2d at 791-92 (citing Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 7, 604 N.W.2d 289, 292). Furthermore, “[w]hen interpreting insurance contracts, we have uniformly held them reviewable as a matter of law under the de novo standard.” National Sun Indus., Inc., v. S.D. Farm Bureau Ins. Co., 1999 SD 63, ¶ 7, 596 N.W.2d 45, 46 (citing Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 3, 566 N.W.2d 487, 489 (citations omitted)).

ANALYSIS AND DECISION

[¶ 6.] The endorsement in this case is clear and unambiguous as to its effect. As it was signed by Delores, she must be deemed to know of its existence. Holzer, 2000 SD 65, ¶ 39, 610 N.W.2d at 797 (quoting LPN Trust v. Farrar, 1996 SD 97, ¶ 13, 552 N.W.2d 796, 799). Thus, the validity of the endorsement becomes a question of whether it is legally permissible under our statutes or whether it conflicts with the statutory requirement of financial responsibility for the owners of a vehicle in this state.

[¶ 7.] Grinnell claims that the endorsement is permissible under SDCL 58-11-9.3 which provides, in relevant part, that “[a]n insurance policy covering a private passenger automobile or other motor vehicle registered or principally garaged in this state may by written agreement with the named insured exclude a named individual from coverage.” In addition, our precedent requires that a restrictive endorsement be on a sheet of paper separate from the body of the policy. See Mid-Century Ins. Co. v. Lyon, 1997 SD 50, 562 N.W.2d 888. The endorsement used by Grinnell was in writing, excluded a specific person, and was attached to the policy as a separate sheet of paper. Therefore, Grin-nell argues, it comports to the requirements of SDCL 58-11-9.3 and our precedent and is valid.

[¶ 8.] Tapio argues that our decision in Colonial Ins. Co. of Cal. v. Lundquist, 539 N.W.2d 871 (S.D.1995) requires us to find the endorsement invalid. In that case, Lundquist allowed Allen, a fourteen-year-old girl, to drive his Jeep CJ5 after she had been drinking. Allen was killed when she lost control of the vehicle, causing it to roll on its top. Her estate sued Lundquist for negligent entrustment. Colonial, as Lundquist’s liability insurer, denied coverage under the policy’s omnibus clause. The policy in question did not cover bodily injury or death to the named insured (Lundquist) or any other “insured person.” Because the policy defined “insured person” to include any person permissively using Lundquist’s vehicle, Colonial claimed that Allen was also an “insured person” and therefore excluded from coverage. In finding the exclusion invalid, we stated that SDCL 58-11-9.8 did not permit an insurer to sell “a policy of insurance purporting to protect him from liability claims as required by SDCL 32-35-70 and then, in the fine print, take that protection away from him.” Lundquist, 539 N.W.2d at 874.

[¶ 9.] We find our decision in Lund-quist to be factually distinguishable. Lundquist did not involve a restrictive endorsement. Rather, Colonial was attempting to avoid coverage under a general provision buried within Lundquist’s policy. The restrictive endorsement used by Grin-nell herein was on a sheet of paper separate from the rest of the policy. In addition, it clearly stated that Grinnell would not provide coverage for any accident or claim that arose while a named individual, Sean Sazue, was driving Delores’ vehicle. In contrast, no specific individual was excluded in Lundquist’s policy. Nor was the purported exclusion in Lundquist explicitly stated as was done here. The exclusion used by Grinned follows the requirements of SDCL 58-11-9.3 and our precedent and is therefore valid. Because this claim against Delores, even when couched in terms of negligent entrustment, is a claim arising from Sean’s operation of the vehicle, coverage is excluded under the endorsement.

[¶ 10.] Nor are we compelled to find coverage because the exclusion allegedly violates the pubdc policy found in South Dakota’s financial responsibility laws. As a specific provision, SDCL 58-11-9.3 will prevail over provisions that are more general when there is an apparent conflict. State v. Greger, 1997 SD 14, ¶ 21, 559 N.W.2d 854, 864. When it enacted SDCL 58-11-9.3, the legislature explicitly provided that exclusions, such as the one used here, are permissible. This legislative mandate will be given priority over other, more general, provisions. In certain situations, the owner of a vehicle may not be able to secure affordable coverage unless an unacceptable driver is excluded. In those situations, it is “in the best interests of the parties and the public to require the insurer to continue liability coverage on the express condition that the named insured agree the insurer will not be liable for any claims based on conduct of the unacceptable driver.” State Farm Auto. Ins. Co. v. Dressier, 153 Ariz. 527, 738 P.2d 1134, 1138 (1987). See also Wright v. Rodney D. Young Ins. Agency, 905 S.W.2d 293 (Tex.App.1995) (finding that a restrictive endorsement did not violate public policy by excluding coverage for negligent entrustment claim against insured); Brown v. Ohio Casualty Ins. Co., 63 Ohio App.2d 87, 409 N.E.2d 253 (1978) (financial responsibility laws not violated by restrictive endorsement). When it enacted SDCL 58-11-9.3, the legislature created this limited exception in furtherance of those policy concerns. We are bound by its determination.

[¶ 11.] Because this limitation on coverage is permissible under SDCL 58-11-9.3, it will be read pursuant to its clear and unambiguous language. Delores agreed that she would not be insured for any accident or claim arising out of the operation of her vehicle by her son, Sean. The alleged negligent entrustment at issue arose as a result of Sean’s operation of her vehicle. Therefore, Grinnell is not obligated to provide coverage.

[¶ 12.] Judgment reversed.

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

       It should be noted that the Legislature did not intend to preclude all negligent entrustment claims, only those claims arising from en-Irustment to the excluded individual. The insured’s policy remains intact for negligent entrustment to other drivers.


author: SABERS, Justice

text:
    2000 SD 150
    Troy W. MATTIS, Plaintiff and Appellant, v. WEAVER ELECTRIC, INC. and IMT Insurance Company, Defendants and Appellees.
    No. 21433.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Dec. 6, 2000.
    Michael F. Marlow and Sheila S. Woodward of Johnson, Heidepriem, Miner, Mar-low and Janklow, Yankton, Attorneys for plaintiff and appellant.
    Timothy A. Clausen of Klass, Stoik, Mu-gan, Villone, Phillips, Orzeehowski, Clau-sen & LaPierre, LLP, Sioux City, IA, Attorneys for defendants and appellees.
   SABERS, Justice

[¶ 1.] In this case, employee and employer stipulate to the material facts. The issue is whether Troy Mattis is automatically entitled to total permanent disability benefits after establishing that he suffers from an occupational disease as defined in SDCL chapter 62-8. The administrative law judge and the circuit court determined that Mattis must obtain a separate disability determination under SDCL chapter 62-4 prior to receiving workers’ compensation benefits. We agree and affirm.

FACTS

[¶ 2.] Mattis began working for Weaver Electric Inc. (Weaver) in May of 1994 as an apprentice electrician. His job duties consisted of assisting journeymen electricians in the wiring of residential homes. In July 1995, while working for Weaver, Mattis used Carlon Quick Set PVC cement to glue PVC conduits together. For three consecutive days Mattis was required to apply the PVC cement while working in a waist deep trench. Mattis complained of headaches and nausea after using the PVC cement. On Friday, July 15, 1995, Mattis again used PVC cement at another job site. Over the weekend the headaches and nausea continued and Mattis began experiencing chest pains. That Sunday, Mattis went to the hospital after experiencing difficulty catching his breath when walking from his couch to the refrigerator.

[¶ 3.] Mattis was admitted to the Wagner Community Memorial Hospital on July 18,1995. He was seen by Dr. Scott Weber and was initially assessed as suffering from bi-lateral pneumonia, exposure to PVC glue fumes, being overweight, and hypoxia. Mattis was discharged on July 23, 1995 but his condition remained unchanged except for improved pulmonary status.

[¶ 4.] Still suffering from breathing discomfort, Mattis visited Dr. Lori Hansen on September 28, 1995. Dr. Hansen diagnosed Mattis as suffering from either reactive airway disease or asthma. A subsequent test confirmed that Mattis had reactive airway disease,

[¶ 5.] Dr. Hansen found that Mattis suffered “a twenty percent permanent impairment to his whole person as a result of his reactive airway disease.” Mattis was instructed to avoid smoke, dust, chemical odors, extreme temperatures and physical exertion. Mattis attempted to work again as an electrician’s apprentice for another company doing substantially the same type of work as he had done with Weaver. He was unable to perform the required tasks without getting sick or experiencing difficulty breathing. After leaving the workforce his condition improved.

[¶ 6.] Mattis again attempted to return to employment, this time as a corrections officer. However, based upon the advice of his doctor, he left this position as he was unable to avoid temperature extremes. Mattis has not worked full time since July 31, 1997. His condition is irritated by “cleaning materials, perfumes, potpourri, dust, humidity and temperature extremes.” Both parties have stipulated that Mattis “developed reactive airways disease as a result of being exposed to the PVC glue while working as an electrician for [Weaver]” and Mattis “suffers from an occupational disease as defined in SDCL 62-8 — 1(6).”

[¶ 7.] Mattis filed a petition for hearing with the South Dakota Department of Labor requesting compensation, medical expenses and hospital expenses as a result of an occupational health injury. The administrative law judge determined that Mattis was entitled to compensation under the workers’ compensation statutes in SDCL chapter 62-4, which requires Mattis to demonstrate his level of disability. The circuit court affirmed. Mattis appeals contending that SDCL 62-8-1(3) and 62-8-4 establish that if an employee has an occupational disease, and is unable to return to his prior occupation, the employee is deemed to suffer a total disability and no further inquiry is warranted.

STANDARD OP REVIEW

[¶ 8.] The issue on appeal involves a question of statutory interpretation. “Statutory interpretation is a question of law, which we review de novo.” In Re Estate of Klauzer, 2000 SD 7, ¶22, 604 N.W.2d 474, 479. Additionally, when reviewing workers’ compensation statutes it is “a general rule that [they] should be liberally construed in favor of injured employees.” Moody v. L.W. Tyler Custom Combiners, 297 N.W.2d 179, 180 (S.D.1980). However, “we will not liberally construe a statute to avoid a seemingly harsh result where such construction would do violence to the plain meaning of the statute.” Heupel v. Imprimis Tech. Inc., 473 N.W.2d 464 (S.D.1991) (citations omitted).

[¶ 9.] WHETHER AN EMPLOYEE IS AUTOMATICALLY ENTITLED TO TOTAL PERMANENT DISABILITY BENEFITS AFTER ESTABLISHING THAT HE SUFFERS FROM AN OCCUPATIONAL DISEASE AND IS UNABLE TO RETURN TO HIS PRIOR OCCUPATION.

[¶ 10.] ' Mattis asserts that as a matter of law he is entitled to workers’ compensation benefits calculated as though he is totally disabled because he suffers from an occupational disease. He reaches this conclusion by asserting that the legislature has deemed an occupational disease the equivalent of a total disability under SDCL chapter 62-8. This interpretation is flawed.

[¶ 11.] SDCL 62-8-1 states that “disablement” as used in SDCL chapter 62-8 means:

[T]he event of an employee’s becoming actually and totally incapacitated, because of an occupational disease as defined in this chapter, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease. ‘Disability, ‘disabled, ‘total disability, ‘totally disabled, or ‘total disablement’ shall be synonymous with ‘disablement. ’

(Emphasis added). Mattis concludes that the last sentence of this definition supports the proposition that “disablement” is the equivalent of “total disability” and “totally disabled.” This position fails to take into account that “disablement” is also synonymous with “disability” and “disabled.” While the terms “disability, disabled, total disability, and totally disabled” are deemed synonymous with “disablement” as utilized in SDCL chapter 62-8, they are not synonymous with each other. These terms recognize the distinction under workers’ compensation jurisprudence between “total” and “partial” disability. The mere reference to “total disability” and “totally disabled” as well as “disability” and “disabled” acknowledge that something less than “total disability” or “totally disabled” exist.

[¶ 12.] The legislature has chosen to refer to these distinctive levels of disability by the shorthand term “disablement” in SDCL chapter 62-8 instead of parsing out the varying degrees of disability under our workers’ compensation statutes. The definition of “disablement” includes more than “total disability” and continues to recognize the distinctions between “partial” and “total” disabilities contained in the workers’ compensation provisions.

[¶ 13.] This very distinction is recognized by SDCL 62-8-17. That statute provides “[i]n the event a totally disabled employee shall engage in any remunerative work for any other employer, he shall thereby waive disability benefits or compensation under this chapter for such period as he is so engaged.” SDCL 62-8-17. The use of the term “totally disabled” by the legislature reflects the understanding that something less than “totally disabled” exists under SDCL chapter 62-8. By singling out only those employees who are “totally disabled” as the result of an occupational disease, the statute implicitly acknowledges that a worker may suffer from an occupational disease and not be “totally disabled.”

[¶ 14.] This interpretation is supported by SDCL 62-8-4 which incorporates workers’ compensation law into the Occupational Disease Disability Chapter. That statute provides in relevant part:

Where an employee of an employer subject to this chapter suffers from an occupational disease as defined in § 62-8-1, and is thereby disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards ... and the disease was due to the nature of an occupation or process in which he was employed ... the employee ... shall be entitled to compensation as provided in the workers’ compensation lato, as if such disablement or death were an injury by accident, except as otherwise provided in this chapter; and the practice and procedure prescribed in the workers’ compensation law shall apply to proceedings for compensation for such diseases, except as in this chapter otherwise provided.

SDCL 62-8-4 (emphasis added). In accord with this statute the parties have stipulated that Mattis suffers from an occupational disease and is entitled to compensation. The remaining dispute is the manner these benefits will be determined. The statute clearly answers the question: “as provided in the workers’ compensation law .” Id. Additionally, in making this determination, “the practice and procedures prescribed in the workers’ compensation law shall apply to proceedings for compensation for such diseases.” Id.

[¶ 16.] This statutory language clearly incorporates the provisions of SDCL chapter 62-4 (Compensation for Injury or Death) into SDCL chapter 62-8 (Occupational Disease Disability). This statutory language defeats Mattis’ position that a claimant suffering an occupational disease is automatically treated as totally disabled. The workers’ compensation provisions of SDCL chapter 62-4 clearly distinguish between partial, total permanent and temporary disabilities. See SDCL 62-4-5 (compensation for partial disability); SDCL 62-4-3 (amount of temporary total disability compensation); SDCL 62-4-7 (compensation for permanent total disability).

[¶ 16.] Mattis asserts that resort to the compensation provisions contained in SDCL chapter 62-4 will in effect force him to prove his disability twice. However, the statutory process simply requires Mattis to 1.) prove that he suffers from an occupational disease as defined in SDCL chapter 62-8 and then 2.) prove the extent of his disability to establish the level of benefits to be provided. We acknowledge that these requirements may entail some overlapping evidence, but the legislature has provided two distinctly unique steps that must be followed to obtain these benefits.

¶ 17. Affirmed.

¶ 18. MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . The findings of fact state that "[t]he ingredients of the quick set cement are known to cause reactive airways disease following exposure. Dr. Hansen is of the opinion that the exposure to the cement caused the development of [Mattis’] reactive airway disease.”

      . SDCL 62-8-1(6) defines occupational disease as "a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment and includes any disease due or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”

      . Mattis cites foreign authority to support his proposition that "disablement” equates only with "total disability.” Vincent v. United Nuclear-Homestalce Fanners, 89 N.M. 704, 556 P.2d 1180, 1183 (1976). Yet the difference in definitions of "disablement” under the New Mexico system, upon which Mattis relies, and SDCL 62-8-1(3) defeats this position. See id. (defining "disablement” as "total physical incapacity by reason of an occupational disease").


author: WILLIS, J.

text:
    STATE of Minnesota, Plaintiff, v. Jose Isidrio MIRELES, Defendant.
    No. C3-00-742.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, Boyd Beccue, Kandiyohi County Attorney, Willmar, for plaintiff.
    John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, Minneapolis, for defendant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

WILLIS, J.

Defendant Jose Míreles was arrested for his alleged involvement in a drive-by shooting. The state moved to introduce expert-opinion testimony that Míreles is a member of a criminal gang. Míreles moved to exclude that testimony and challenged the constitutionality of Minn.Stat. § 609.229 (1998), proscribing the commission of a crime “for the benefit of a gang.” The district court upheld the constitutionality of section 609.229 but excluded expert-opinion testimony about whether Mí-reles is a gang member. The district court certified as important and doubtful the questions of (1) whether section 609.229 is unconstitutionally overbroad and (2) whether the basis of the state’s expert-opinion testimony was sufficiently reliable. We answer the first certified question in the negative and dismiss the second question as improper for certification.

FACTS

Based on an eyewitness account, Will-mar police arrested defendant Jose Mí-reles for his alleged involvement in a drive-by shooting. He was charged with attempted second-degree murder, drive-by shooting, second-degree assault with a dangerous weapon, unlawful possession of a firearm, and receiving stolen property, that is, the shotgun used in the shooting. All offenses were alleged to have been committed “for the benefit of a gang,” pursuant to Minnesota Statute 609.229 (1998).

The state filed a motion in limine to allow the introduction of expert testimony by a Willmar police officer that (1) the Latin Kings are a criminal gang in Will-mar, (2) Míreles committed the charged offenses for the benefit of a gang, and (3) he is a member of the Latin Kings. Mí-reles moved to exclude this testimony on the ground that an expert opinion about gang membership would improperly influence the jury. He also challenged the constitutionality of Minn.Stat. § 609.229 on various grounds, including overbreadth. The district court concluded that the statute is constitutional. It also ruled that the police officer could offer his expert opinion that the Latin Kings are a gang and that the charged offenses were gang related but that, because the foundation for his opinion was not sufficiently reliable, he could not offer expert-opinion testimony that Mireles is a member of .the Latin Kings. The state sought clarification of the district court’s order or, in the alternative, asked that the court reopen the record on the issue of the admissibility of expert testimony relating to Mireles’s gang membership. The court denied the state’s motion but stated that its order applied only to expert testimony that was based solely on the Minnesota Gang Strike Force’s ten-point gang-identification criteria.

The district court, noting the many cases pending before it presenting “similar issues of first impression” and the absence of any appellate decisions addressing either the constitutionality of Minn.Stat. § 609.229 or “the unique evidentiary issues which the statute presents,” certified the following questions to the Court of Appeals:

Does Minnesota Statutes § 609.229 (1998) violate the overbreadth doctrine by substantially inhibiting the Defendant’s exercise of his First Amendment rights under the United States Constitution?
Are the ten point gang identification criteria when solely utilized by a police officer sufficiently reliable to allow the officer to express an expert opinion on whether an individual is a member of a criminal gang?
ISSUES
I. Is Minn.Stat. § 609.229 (1998), proscribing commission of a crime for the benefit of a gang, unconstitutionally overbroad on its face?
II. Where the record is insufficient for the district court to determine the reliability of the basis of expert testimony, may this court consider a certified question asking whether that basis is rehable as a matter of law?
ANALYSIS

I. Overbreadth

Minnesota Rule of Criminal Procedure 28.03 provides:

If * * * upon any motion to dismiss a tab charge, complaint or indictment, or upon any motion relating to the tab charge, complaint, or indictment, any question of law shall arise which in the opinion of the judge is so important or doubtful as to require a decision of the Court of Appeals, the judge shall, if the defendant shall request or consent thereto, report the case, so far as may be necessary to present the question of law, and certify the report to the Court of Appeals.

This court accepts certification of questions regarding criminal statutes as important and doubtful when the challenged statute has statewide application and the question has not previously been decided. State v. Nodes, 538 N.W.2d 158, 160 (Minn. App.1995). The question of whether Minn. Stat. § 609.229 (1998) is unconstitutionally overbroad has not been addressed by Minnesota appellate courts. An answer to this question would have statewide effect. Therefore, the question was properly certified.

The constitutionality of a statute is a question of law, which this court reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999). Minnesota statutes are presumed to be constitutional, and a court’s power to declare a statute unconstitutional “should be exercised with extreme caution and only when necessary.” State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (citations omitted). A party challenging a statute has the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. Id. (citation omitted).

A person to whom a statute may constitutionally be applied has no standing to challenge that statute on the ground that it might conceivably be applied unconstitutionally to others, in other situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). One limited exception to this principle is the “facial overbreadth” doctrine. Id. at 611-12, 93 S.Ct. at 2916. To help provide the First Amendment with necessary “breathing space,” the U.S. Supreme Court has allowed litigants to challenge a statute, not because their own rights of free expression are violated, but because “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id.; see also Machholz, 574 N.W.2d at 419 (discussing how the potential “chilling effect” of a facially overbroad statute justifies giving a litigant standing to challenge it as unconstitutional on its face, even if his or her own activities are not constitutionally protected).

But because the doctrine has the potential to void an entire statute, the Supreme Court has described it as “strong medicine,” which should be applied “only as a last resort” and only if the degree of overbreadth is substantial. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916; see also State v. Holmberg, 545 N.W.2d 65, 70 (Minn.App.1996) (stating that for a statute to be held invalid, its overbreadth must be “both real and substantial”), revieio denied (Minn. May 21, 1996). A determination of substantial overbreadth requires a finding of “realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” New York State Club Ass’n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)). If a statute’s legitimate reach “dwarfs its arguably impermissible applications,” it is facially valid. Holmberg, 545 N.W.2d at 70 (citation omitted).

The Broadrick Court recognized four situations in which facial overbreadth challenges are justified: (1) where statutes, by their terms, seek to regulate “only spoken words”; (2) where statutes, by their terms, purport to regulate the time, place, and manner of expressive and communicative conduct; (3) where rights of association are “ensnared in statutes which, by their broad sweep, might result in burdening innocent associations”; and (4) where protected conduct has required official approval under laws that delegate standard-less discretionary power to local officials. 413 U.S. at 611-13, 93 S.Ct. at 2916.

Under the challenged provision:

A person who commits a crime for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members is guilty of a crime * * *.

Minn.Stat. § 609.229, subd. 2. Because this language does not, by its terms, seek to regulate spoken words or the time, place, or manner of expression, the first two justifications do not apply.

Nor does the statute prohibit membership in a criminal gang or prevent individuals from associating with one another. Because it has the potential to void an entire statute, the overbreadth doctrine requires not only that the overbreadth be substantial but also that the statute in question not be subject to a limiting construction. Machholz, 574 N.W.2d at 419. Minn.Stat. 609.229 includes a specific-intent element, which requires that the defendant act “with intent to promote, further, or assist in criminal conduct by gang members.” This specific-intent requirement limits the reach of the statute to those individuals who engage in criminal conduct for the benefit of a criminal gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The freedom of association protected by the First Amendment does not extend to “joining with others for the purpose of depriving third parties of their lawful rights.” Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 776, 114 S.Ct. 2516, 2530, 129 L.Ed.2d 593 (1994). Because it is limited by this specific-intent requirement, Minn.Stat. § 609.229 does not reach so broadly as to burden innocent associations.

Míreles argues that, because it did not define the term “gang members,” the legislature impermissibly delegated the determination of what constitutes gang membership to law-enforcement officials. He contends that this delegation threatens to chill freedom of speech and association by allowing law-enforcement officials to formulate their own standards for determining gang membership, standards that could burden the protected conduct of non-parties (for example, the wearing of tattoos or gang-related' dress, or associating with known gang members). But the U.S. Supreme Court opinions that Míreles relies on do not support this argument. In Shuttlesworth v. Birmingham the Court stated that a law delegating to local officials the discretion to grant or withhold approval of speech or conduct must include narrow, objective, and definite standards. Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969). The Shuttlesivorth Court was concerned that the standardless delegation to local officials of such discretionary power would allow for virtually unreviewable prior restraints on First Amendment rights. Id. Broadrick, the other case relied on by defendant, merely restates the standard established in ShuttleswoHh. 413 U.S. at 611-12, 93 S.Ct. at 2916. Because Minn.Stat. § 609.229 does not delegate authority to local officials to approve of speech or conduct it does not require loosening traditional standing requirements to prevent prior restraints.

Minn.Stat. § 609.229 is not substantially overbroad on its face. Any over-breadth that may exist “should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2918.

II. Reliability of the basis of expert-opinion testimony

Turning to the second certified question, we note that the certification procedure is not a substitute for an appeal nor should it be used to present a hypothetical question or secure an advisory opinion. State v. Jennings, 487 N.W.2d 536, 538 (Minn.App.1992). A question of law should not be presented until the record is developed to the point where the question is relevant and presents a substantial issue. Id.

In a criminal case, the defendant does not have a right to appeal a pretrial evidentiary ruling. State v. Kvale, 352 N.W.2d 137, 139-40 (Minn.App.1984) (citation omitted). This rule cannot be circumvented by trial court certification of the question. Id. Therefore, this court will generally not decide a pretrial evidentiary ruling of the trial court on a certified question. See, e.g., id. (dismissing certified question regarding relevance of evidence of similar crimes allegedly committed by person other than accused); State v. Babcock, 360 N.W.2d 466, 467 (Minn. App.1985) (stating rule precluding review of pretrial evidentiary rulings is equally applicable to rulings on pretrial discovery motions).

Although there is some precedent for granting discretionary review of pretrial evidentiary rulings (see, e.g., State v. Childs, 269 N.W.2d 25, 26, n. 1 (Minn.1978)), such discretion should only be exer cised where the parties have fully briefed the case, the record is adequately developed, and the evidence in question is important to the prosecution’s case. State v. Crook, 485 N.W.2d 726, 728 (Minn.App. 1992), revieiu denied (Minn. Aug. 4, 1992). This court has refused to grant discretionary review of certified questions that deal imprecisely with facts that must be proved at trial and call for “a declaration of the ‘discretion’ of the trial court.” Kvale, 352 N.W.2d at 140.

The record here is not adequately developed for this court to determine whether, as a matter of law, the gang-identification criteria are sufficiently reliable to form the basis of expert-opinion testimony. There is no transcript of the omnibus and motion hearing at which the admissibility of the police officer’s expert opinion was argued. The district court’s findings are limited to the facts that the officer was familiar with the Minnesota Gang Strike Force’s gang-identification criteria and that he did not know how the criteria were established or why the Gang Strike Force determined that meeting any three of the criteria would constitute sufficient evidence of gang membership. Based on these findings, the district court determined that “[t]he record before the Court is simply insufficient to determine reliability of the gang identification criteria.” For that same reason, this court cannot answer the certified question regarding the reliability as a matter of law of the gang-identification criteria.

DECISION

The district court properly held that Minn.Stat. § 609.229 (1998) is not, on its face, unconstitutionally overbroad. Because the record is insufficient, this court cannot answer a certified question regarding the reliability, as a matter of law, of the basis for an expert’s opinion testimony.

First certified question answered in the negative; second certified question dismissed.

      . "Facial” overbreadth challenges should be distinguished from "as applied” challenges, the latter involving a judgment as to the constitutionality of a statute based on the harm to the litigating party. Turchick v. U.S., 561 F.2d 719, 721 n. 3 (8th Cir.1977). Mireles does not challenge section 609.229 as applied to him.

      . Defendant’s reliance on Shuttlesworth may arise from confusion between the First Amendment overbreadth doctrine and the due-process "void for vagueness" doctrine, which requires that criminal statutes provide standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). The trial court ruled that Minn.Stat. § 609.229 was not im-permissibly vague, but it certified only the First Amendment overbreadth question to this court.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Rick Allen ROCHEFORT, Appellant.
    No. C2-00-148.
    Court of Appeals of Minnesota.
    Dec. 5, 2000.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, and Brian Roverud, Faribault County Attorney, Blue Barth, for respondent.
    Lawrence W. Pry, Deputy State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Rick Allen Rochefort challenges his conviction of first-degree manufacturing, possession, and sale of meth-amphetamines, arguing that the warrant authorizing the police search that led to the discovery of methamphetamines in his home was not supported by sufficient probable cause. We agree and reverse.

FACTS

On March 1, 1999, Robert Toland, a Faribault County Sheriffs Deputy assigned to the South Central Drug Investigative Unit, submitted an affidavit in support of his application for a warrant to search appellant’s residence in Winnebago. The affidavit contained the following information:

On January 17, 1998, police stopped Curt Rathie’s vehicle and arrested him for possessing methamphetamines. A passenger in Rathie’s car fled on foot and was not found that day. The arresting officer identified appellant as the passenger who fled. Two confidential reliable informants (CRIs) also identified appellant as the passenger and claimed that he had fled with one ounce of methamphetamines.

After this incident, police began investigating appellant for manufacturing, possessing, or selling methamphetamines. They discovered that appellant and Rathie spent time at Lowell Willard’s residence in 1998. A CRI told them that methamphet-amines were being manufactured at Willard’s residence. Police executed a search warrant on Willard’s residence and discovered a trace amount of methamphet-amines.

On January 14, 1999, appellant purchased four ounces of iodine crystals and a flask. During the sale, appellant provided identification listing his home address in Winnebago. The Drug Enforcement Agency (DEA) tracked this purchase because iodine crystals are ingredients known to be used in the production of methamphetamines. Appellant also made another iodine crystal purchase in January.

On February 19, 1999, police tape-recorded a telephone conversation between Monty Gardner, who was in a North Dakota jail, and an unwitting informant in Winnebago. Gardner had been arrested with a portable lab, and police believed that he taught Rathie and appellant how to manufacture methamphetamines. Gardner asked the informant about “Rick,” and the informant stated that “Rick” was “running around telling everybody” and “blabbing big time about everything.” The informant went on to say that “Rick” blew up his basement “doing what he was doing.” The informant said that everyone was being good except “Rick.” Gardner responded that others should learn from his experience. Based on this information, the district court issued a warrant allowing police to search appellant’s home for evidence of drugs.

At a contested omnibus hearing, appellant moved to suppress the evidence found in his home, contending that the affidavit accompanying the warrant application did not provide sufficient probable cause to support issuance of the warrant. The trial court denied appellant’s motion. A jury found appellant guilty of first-degree manufacturing, possessing, and selling a controlled substance under Minn.Stat. § 152.021, subds. 1(a), 2(1), 2a (1998).

ISSUE

Did the trial court err in concluding that the affidavit provided sufficient probable cause to support issuance of a search warrant?

ANALYSIS

The United States and the Minnesota constitutions provide that warrants must be supported by . probable cause. See U.S. Const, amend. IV; Minn. Const. Art. I, § 10; State v. Bradford, 618 N.W.2d 782 (Minn. 2000). Appellate courts give great deference to the factual findings of the court issuing a warrant and will reverse “only if clearly erroneous.” Bradford, 618 N.W.2d 782 (citation omitted). An appellate court reviews a probable cause determination de novo and analyzes whether “there was a substantial basis to conclude that probable cause existed.” Id. (citation omitted).

A search warrant may be issued if, based on the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quo tation omitted). In reviewing the sufficiency of an affidavit under the totality of the circumstances test, courts must be careful to avoid reviewing each component of the affidavit in isolation. State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App.1991). Further, doubtful or marginal cases should be largely determined by the deference to be accorded to warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn.1990).

In determining whether probable cause existed, however, the issuing court and reviewing court may only consider the information presented in the affidavit offered in support of the search warrant application. State v. Kahn, 555 N.W.2d 15, 18 (Minn.App.1996). Here, the affidavit contains no information about the confidential informants. There is no indication that the informants were first-time citizen informants whose credibility is presumed or other persons whose information had previously proved reliable. See State v. Ward, 580 N.W.2d 67, 71 (Minn.App.1998) (information provided by informant can support finding of probable cause if informant is first-time citizen informant whose credibility is presumed or informant whose information has previously proved reliable). Therefore, we cannot simply presume that the informants’ information is credible. See State v. Maldonado, 322 N.W.2d 349, 351 (Minn.1982).

While the factors of reliability and basis of knowledge are relevant considerations in a totality of the circumstances analysis, a deficiency in one can be compensated for by a strong showing on the other, or by some other indicia of reliability. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2339, 76 L.Ed.2d 527 (1983); see also State v. Eling, 355 N.W.2d 286, 291 (Minn.1984) (fact that informant’s reliability is unknown is not fatal to determination of probable cause if corroborating evidence exists). An informant’s reliability and the reliability of the information provided may be established by police corroboration. McCloskey, 453 N.W.2d at 704. “The independent corroboration of even innocent details of an informant’s tip may support a finding of probable cause.” State v. Munson, 594 N.W.2d 128, 136 (Minn.1999) (citation omitted).

In this case, the record contains no corroborative evidence to demonstrate that the informants were reliable, save for the stale information of appellant’s prior association with suspected drug activity. See State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998) (information in search warrant stale when “it had been over six months since [defendant’s] reported purchase of less than an ounce of methamphetamine and since the last reported drug party. Approximately ten months had transpired since the attempted delivery of the package containing a controlled substance, and the attempted delivery was to a location other than the one to be searched.”) The state argues that this prior association was also supported by the additional information that appellants had purchased a chemical known for use in the production of methamphetamines. We conclude that this evidence, without more, does not provide sufficient information to establish probable cause where the veracity and credibility of the three informants are not established. Thus, the district court erred in finding that there was probable cause to issue the search warrant.

DECISION

Because the affidavit in support of the search warrant fails to establish the reliability of the confidential informants, corroboration of informants, or any link between appellant and any recent drug activity, it does not provide sufficient probable cause to support issuance of the warrant. All evidence obtained from appellant’s residence must therefore be suppressed; because that evidence provided the sole basis for appellant’s conviction, the conviction must be reversed.

Reversed.


author: G. BARRY ANDERSON, Judge.

text:
    DALE PROPERTIES, LLC, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C3-00-837.
    Court of Appeals of Minnesota.
    Dec. 5, 2000.

      John W. Lang, Elizabeth L. Plitzuweit, Messerli & Kramer, P.A., Minneapolis, for appellant.
    Mike Hatch, Minnesota Attorney General, David M. Jann, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant landowner Dale Properties, LLC lost westbound traffic access to the subject property after the state removed a median crossover point. Appellant argues that the district court erred by concluding that no taking occurred and granting summary judgment to respondent state. Appellant also contends the district court failed to consider whether appellant retained reasonably convenient and suitable access to the property from the highway’s eastbound traffic lane. Appellant further claims the original property condemnation granted two-way access, and that the state abused its police powers by removing that access. We determine that the state acted within its police powers, and affirm the district court’s decisions that the original condemnation proceedings did not grant appellant two-way access from the abutting highway. We conclude, however, that in determining whether there was a taking, the district court ought to have reached the question of whether the remaining eastbound lane of traffic constituted reasonable access, and reverse and remand for findings of fact and conclusions of law addressing that question.

FACTS

The subject property (Dale Property) is a 29-acre parcel originally part of a 130-acre land tract affected by a 1965 condemnation proceeding. In 1965, the state condemned a portion of the property to build a diamond interchange at the intersection of Interstate 694 and what is now Trunk Highway 5 (T.R. 5) in Oakdale, Minnesota. As part of the condemnation, the state took all access to the Dale Property from Interstate 694 and T.R. 5, except for a 30-foot portion of T.R. 5 access granted in a 1973 Final Certificate issued at the conclusion of the condemnation matter. The Dale Property is bounded on the west by Interstate 694, on the north by T .R. 5, on the south by a railroad right-of-way, and on the east by another property. The 30-foot T.R. 5 access is the only means of vehicle entry to or exit from the Dale Property.

Sometime between 1973 and September 1997, the state installed a median between T.R. 5’s eastbound and westbound traffic lanes. A gap in the median, termed a “crossover point,” allowed traffic from either direction to turn into the Dale Property driveway at the access point provided in the Final Certificate. In September 1997, citing safety reasons, the Minnesota Department of Transportation (MnDOT) closed the “crossover point” by installing a solid median. This construction prevents westbound traffic on T.R. 5 from executing a left turn into the Dale Property driveway. While eastbound traffic can directly access the Dale Property, westbound travelers wishing to access the Dale Property must pass the property by at least one half mile, execute a U-turn, and return eastbound on T.R. 5.

Appellant asked, by a February 9, 1998 letter, that MnDOT reopen the “crossover point.” MnDOT declined. On March 24, 1999, appellants petitioned for a writ of mandamus from the district court to compel MnDOT to commence condemnation proceedings or, in the alternative, pay damages for the taking of property for public use. In December 1999 respondent moved for summary judgment, and the district court granted the motion on the basis that there was no “taking” for condemnation purposes. Appellant now challenges that ruling.

ISSUE

Did the district court err by concluding, as a matter of law, that respondent was entitled to summary judgment on the basis that the state’s removal of the median crossover point did not constitute a compensable taking?

ANALYSIS

Appellant argues that the district court erred by failing to recognize a fact dispute and by concluding that there was no com-pensable taking as a matter of law. Summary judgment is appropriate where 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 either party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03. On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We must consider the evidence in the light most favorable to the party against whom summary judgment was granted. Fahren-dorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 909-10 (Minn.1999).

“It is well settled that the state must compensate a landowner when land is taken for a public purpose.” County of Anoka v. Blaine Bldg. Corp., 566 N.W.2d 331, 334 (Minn.1997). Both the Minnesota Constitution and state statutes provide that compensation must be paid when a taking occurs. Minn. Const, art. 1, § 13; Minn.Stat. § 117.025, subd. 2 (1998). Property owners who believe their property has been taken may petition the district court for a writ of mandamus to compel the state to initiate condemnation proceedings under Minn.Stat. ch. 117. Grossman Invs. v. State by Humphrey, 571 N.W.2d 47, 50 (Minn.App.1997), review denied (Minn. Jan. 28, 1998). A district court reviewing a petition for a writ of mandamus “must decide, as a threshold matter, whether a taking of property has occurred in the constitutional sense.” Id.

Although interference with property access may be a compensable taking, property owners do not have a vested interest in continued traffic flow past their property. Blaine Bldg. Corp., 566 N.W.2d at 334 (citing Hendrickson v. State, 267 Minn. 436, 442, 127 N.W.2d 165, 170 (1964)). Damages “must arise from changes in the land actually taken, and not merely from the impact of [a] construction project as a whole.” Id. (citation omitted).

[I]f the regulation or restriction falls within the state’s ‘police powers’, no compensable loss has occurred. Included in this category are the establishment of one way streets and lanes of traffic; median strips prohibiting or limiting crossovers from one lane of traffic to another; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles.

State by Mondale v. Gannons, Inc., 275 Minn. 14, 20, 145 N.W.2d 321, 326-27 (1966).

Property owners do enjoy, however, a right of “reasonably convenient and suitable access” to highways that abut their property. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978); Gannons, 275 Minn, at 19, 145 N.W.2d at 326. But even a denial of immediate or convenient access will not necessarily create a compensable taking. “[A] property owner suffers compensable damage when the roadway is changed in such a way that the owner is denied reasonably convenient and suitable access to the main thoroughfare in at least one direction.” Blaine Bldg. Corp., 566 N.W.2d at 334 (citations omitted). “ ‘[T]he law is well settled * * * that the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation,’ where, as a result, a property owner loses traffic access in one direction, but retains access in the other.” Id. (quoting Gan-nons, 275 Minn, at 23, 145 N.W.2d at 329).

The district court, having concluded as a threshold matter that the removal of the crossover point did not constitute a compensable taking, decided there was no need to reach the question of whether the remaining eastbound lane access to the Dale Property was reasonable. Appellant, however, argues that the district court should not have determined a “taking” had not occurred without a jury’s resolution of whether the remaining eastbound traffic lane access is “reasonably convenient and suitable.” In the alternative, appellant argues that the remaining access to the Dale Property is unreasonable as a matter of law.

We agree with appellant’s argument that the district court erred by determining that no taking had occurred without resolving the question of whether appellant’s remaining access in one direction was “reasonably convenient and suitable.” We are not bound by the district court’s legal conclusions relating to reasonable access, and review this issue de novo. Grossman, 571 N.W.2d at 51.

Blaine Bldg. Corp. recognizes that reasonably convenient and suitable access in at least one direction is inherent in the nature of the property right:

While property owners have no vested interest in the continued flow of traffic past the property, property owners do have a right of “reasonably convenient and suitable access” to a public street or highway that abuts their property. This right is in the nature of a property right.

Id., 566 N.W.2d at 334 (citations omitted). In addition, we have rejected the notion that loss of access due to the installation of a dividing median can never be compensa-ble. See County of Anoka v. Esmailzadeh, 498 N.W.2d 58, 61-62 (Minn.App.1993) (recognizing the right to access in at least one direction), review denied (Minn. May 28,1993).

Thus, where a property owner retains access in at least one direction, but that remaining access is not “reasonably convenient and suitable,” there has been a taking. The holding in Grossman supports our conclusion. See Grossman, 571 N.W.2d at 51 (determining remaining access was reasonably convenient and suitable in at least one direction before concluding no taking occurred). We now hold that the district court improperly severed the question of “reasonably convenient and suitable access” from the question of whether a taking had occurred and reverse the summary judgment and remand to allow the district court to address this question.

We disagree, however, with appellant’s contention that the question of reasonably convenient and suitable access is always a fact question that must be resolved by a jury.

What constitutes reasonable access must, of course, depend to some extent on the nature of the property under consideration. The existence of reasonable access is thus a question of fact to • be determined in light of the circumstances peculiar to each case.

Johnson, 263 N.W.2d at 607 (citation omitted) (Minn.1978). Where, however, as in Johnson, the facts are not in dispute, the district court, and not a jury, may decide as a matter of law whether a property owner has been denied reasonably convenient and suitable access in at least one direction. Id. at 605; see also Hendrickson, 267 Minn, at 437, 127 N.W.2d at 172 n. 19 (explaining that had the facts been certain, the court “would have little hesitation in sustaining a ruling that the remaining access was reasonably convenient and suitable as a matter of law”); Gross-man, 571 N.W.2d at 50 (“Ultimately, though, the trial court must determine whether, as a matter of law, the change in access constitutes a compensable taking.”)

We remand this matter to the district court for a determination, on the existing record, of whether the state’s removal of the median crossover point deprived appellant of reasonably convenient and suitable access to the Dale Property from the remaining eastbound traffic lane of T.R. 5. In doing so, the district court must make factual findings and if the facts are not disputed determine, as a matter of law, whether the effect of the crossover point removal on the remaining eastbound traffic lane access denied appellant reasonably convenient and suitable access in at least one direction. See Esmailzadeh, 498 N.W.2d at 62 (requiring, on remand, additional factual findings concerning the effects of construction on the property owner’s business). By remanding, we decline to reach appellant’s claim on appeal that the remaining access is unreasonable as a matter of law.

Appellant next contends that the state’s act of closing the “crossover point” constitutes an unreasonable exercise of its police power. “[T]he operative question is not whether the [governmental entity] exercised its police powers in a reasonable fashion * * * but rather whether the * * * legitimate police power action unduly restricted vehicular access to the subject property and thereby deprived appellants of their right of reasonable access.” Johnson, 263 N.W.2d at 607. Because Gan-nons makes clear that a removal of a median crossover point is within the state’s police power, we leave the question of reasonable access to the district court on remand. 275 Minn, at 20, 145 N.W.2d at 327.

Appellant also argues that the 1973 Final Certificate issued at the conclusion of the earlier condemnation proceedings granted appellant a right to the median crossover point. The district court held the certificate granted no such right and we agree. Where document terms are unambiguous, courts may construe the provisions without considering extrinsic evidence. In re Turners Crossroad Dev. Co., 277 N.W.2d 364, 369 (Minn.1979); Collins Truck Lines, Inc. v. Metropolitan Waste Control Comm’n, 274 N.W.2d 123, 127 (Minn.1979). The certificate grants only “right of access on the easterly 30 feet” of the property abutting T.R. 5. Accordingly, we affirm the district court’s determination that the certificate did not grant appellant a right to traffic access from both lanes of T.R. 5.

DECISION

A district court considering whether the closure of a median crossover point constitutes a taking must consider whether the landowner retains reasonably convenient and suitable access in at least one direction.

Affirmed in part, reversed in part, and remanded.


author: EDWARD D. MULALLY, Judge

text:
    Xavier GARZA, Jr., Petitioner, Appellant, Xavier Garza, Sr., Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. C8-00-526, CX-00-527.
    Court of Appeals of Minnesota.
    Dec. 5, 2000.

      Mark D. Nyvold, St. Paul, for appellant Xavier Garza, Jr.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, for appellant Xavier Garza, Sr.
    Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, and Lisa Borgen, Clay County Attorney, Moorhead, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, LANSING and MULALLY, Judges.
   OPINION

EDWARD D. MULALLY, Judge

Appellants Xavier Garza, Jr., and Xavier Garza, Sr., challenge their convictions for fourth-degree controlled substance crime, arguing that the no-knock authorization for execution of a search warrant for their house was not supported by any particular facts. We reverse.

FACTS

In February 1998, police setup surveillance of the Garza residence for suspected marijuana trafficking. On February 24, 1998, the police applied for a search warrant. The warrant application contained an affidavit of a police detective. According to the detective’s affidavit, Garza Jr. had been identified as the responsible party for supplying marijuana to an individual recently arrested for possession. The affidavit stated that marijuana is sold and stored at the Garza residence, that Garza Jr. had been found in possession of marijuana when stopped on February 22 for a traffic violation, and that marijuana residue and smoking implements had recently been found in the garbage of the Garza residence. The warrant application requested authorization for unannounced entry (often referred to as a no-knock provision), stating that persons involved in drug trafficking will destroy evidence and use violence if given prior warning.

The district court issued the search warrant containing a no-knock provision and at 12:05 p.m. on February 24, 1998, the police executed the warrant at the Garza residence. They found about $1,400 in cash in the master bedroom and one pound of marijuana in a storage shed. Neither Garza Jr. nor Garza Sr. was present at the time the warrant was executed.

In separate proceedings, the state charged Garza Jr. and Garza Sr. with one count each of fourth-degree controlled substance crime under Minn.Stat. § 152.024, subd. 1(4) (1998). The Garzas filed motions to suppress the evidence obtained from the search of the Garza home. The district court denied the suppression motions and the cases were submitted on stipulated facts in accordance with State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The trial court found both Garza Jr. and Garza Sr. guilty as charged, imposing sentences consistent with séntencing guidelines. The Garzas filed appeals in July 1999, but withdrew those appeals to pursue postconviction relief. In a February 8, 2000 order, the trial court denied postcon-viction relief. This' court consolidated the subsequent appeals.

ISSUE

Did the warrant application contain particularized reasons to justify advanced authorization of unannounced entry?

ANALYSIS

When the facts are not in dispute and the district court’s decision is a question of law, we may independently review the facts and determine as a matter of law whether evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

The “commonlaw principle of announcement * * * is an element of the reasonableness inquiry under the Fourth Amendment.” Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995) (footnote omitted). The announcement principle, commonly known as the “knock-and-announce” rule, has four components: before crossing the threshold to execute a search warrant officers must (1) knock; (2) identify themselves as law-enforcement officers; (3) announce their authority and purpose (“search warrant”); and (4) wait a reasonable time for occupant to allow or refuse entry. United States v. Beckford, 962 F.Supp. 767, 774 (E.D.Va.1997); see also Wilson, 514 U.S. at 931-36, 115 S.Ct. at 1916-19; State v. Linder, 291 Minn. 217, 219, 190 N.W.2d 91, 93 (1971).

Police seeking a search warrant may obtain from the issuing magistrate specific advanced authorization to use an unannounced entry to execute a warrant. State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978). In order to obtain advanced authorization for unannounced entry, the police “must make a strong showing that an announced entry will result in the destruction of evidence or in danger to the officers executing the warrant.” Id. The police “must do more than simply make a showing that drugs are involved.” Id. The police must have a reasonable suspicion based on particular circumstances that announcement “would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997).

Our supreme court recently examined the announcement principle and advanced authorization for unannounced entry in State v. Wasson, 615 N.W.2d 316 (Minn.2000). The court explained that

[[Important purposes are served by the knock and announce requirement, including preventing the unnecessary destruction of property and mistaken entry into the wrong premises, protecting against unnecessary shock and embarrassment, and decreasing the potential for a violent response.

Id. at 319-20. “[W]e require the police to inform the issuing magistrate of the circumstances that they believe justify the unannounced entry.” Id. at 320. “Given the constitutional dimension to the method of entry into a residence, evidence should be suppressed when the circumstances do not warrant an unannounced entry.” Id. See also State v. Barnes, 618 N.W.2d 805 (Minn.App. 2000).

The Garzas argue that warrant application in this case did not contain any particular circumstances so as to justify a no-knock provision. Admittedly boilerplate language in a search warrant application does not satisfy the particularized showing requirement. Wasson, 615 N.W.2d at 320. In requesting unannounced entry, the warrant application stated no-knock entry was necessary because:

Persons involved in Drug trafficking will destroy evidence if given prior warning. Drug traffickers also will use violence if given prior warning therefore Law Enforcement needs the element of surprise to protect themselves from harm.

As the Garzas point out, this statement is the very kind of general boilerplate request rejected by the United States Supreme Court in Richards v. Wisconsin:

In Richards, the Supreme Court struck down Wisconsin’s blanket rule permitting no-knock search warrants in felony drug cases. 520 U.S. at 385, 117 S.Ct. at 1418. The Court in Richards noted that there were at least two problems with a blanket rule based on a “culture” surrounding a general category of criminal behavior: (a) the exception is an overgeneralization because not every case poses a safety threat or threat of evidence destruction; and (b) the reasons for the exception may easily be applied to other types of crimes. Id. at 392-94,117 S.Ct. at 1420-21.

State v. Martinez, 579 N.W.2d 144, 147 (Minn.App.1998), review denied (Minn. July 16,1998).

In Martinez, we applied Richards in upholding the determination that a no-knock provision violated Fourth Amendment rights because it was not based on any particularized reasons.

There were no particularized reasons in the affidavit requesting a warrant that indicate a no-knock provision was necessary in this case and the state did not introduce any evidence that the facts at the time of execution required an unannounced entry. Because under Richards there cannot be a blanket rule permitting no-knock searches based solely on evidence that a home may be being used as an outlet for drug sales, the district court did not commit clear error by concluding that the no-knock provision violated [appellants’] constitutional rights-

Martinez, 579 N.W.2d at 148.

Prior to Richards, Minnesota courts upheld no-knock search warrants based solely on a house being a drug sales outlet. See State v. Dyer, 438 N.W.2d 716, 719 (Minn.App.1989), review denied (Minn. June 9, 1989); State v. Ailport, 412 N.W.2d 35, 38 (Minn.App.1987), review denied (Minn. Nov. 18, 1987). But the Richards rule against blanket no-knock provisions controls the present case. The only support for the no-knock provision in the warrant application was the generalized request. In the absence of particularized reasons, the no-knock provision violates the Garzas’ Fourth Amendment rights.

Nonetheless, the trial court denied postconviction relief, finding that the no-knock provision was adequately supported. The Garzas argue that the trial court clearly erred in making postconviction findings regarding the necessity of the no-knock provision. In finding of fact number fourteen, the trial court stated that:

The basis for the no-knock provision was potential destruction of evidence and specifically Garza Jr.’s propensity for violent behavior. There was also evidence that Garza Jr. had a gun in his possession.

At the pretrial suppression hearing, the police detective testified that the basis for requesting the no-knock search included

my knowledge of Mr. Garza, Jr. and his propensity for violence and the fact that I had been advised by a law enforcement officer that Mr. Garza had been in possession of a firearm.

But nothing in the warrant application references any propensity for violence or any firearm. The state may not rely on the detective’s subsequent testimony to support upholding the advanced authorization of the no-knock warrant since this information was not provided to the issuing magistrate. C.f State v. Ward, 580 N.W.2d 67, 71 (Minn.App.1998) (review of magistrate’s probable cause detérmination is limited to information contained in affidavit supporting warrant application).

That is not to say that the detective’s testimony providing information he had about Garza, Jr. could not be a relevant factor in reasonableness analysis. Execution of a no-knock warrant requires police to make a threshold reappraisal of the need for unannounced entry. Lien, 265 N.W.2d at 839. Also, police may make an unannounced entry without pre-authori-zation if necessary for a safe and successful execution of the warrant. Wasson, 615 N.W.2d at 320, n. 2 (citing Lien, 265 N.W.2d at 838). Certainly, any particularized information an executing officer might have concerning a suspect’s propensity for violence would be a factor is considering whether the executing officer had reasonable suspicion so as to justify unannounced entry. But if such information is not provided in the warrant application, it cannot form a basis for advanced authorization of unannounced entry.

The state argues that the Garzas do not have standing to challenge the legality of the no-knock provision because they were not at home when the search warrant was executed. But when standing is based on a person’s long-term connection to the premises, it is not necessary for them to have been present at the time of the search. State v. Reynolds, 578 N.W.2d 762, 765 (Minn.App.1998).

The state argues that even if the no-knock provision was unsupported, the evidence is admissible under the good faith exception to the exclusionary rule. But we have explicitly stated that the good faith exception cannot be applied to police failure to provide sufficient, particularized reasons for requesting a no-knock provision. Martinez, 579 N.W.2d at 149.

The state argues that the marijuana is nevertheless admissible because it was found in a shed outside the house. But the notice requirement applies to all buildings within the curtilage. See 2 Wayne R. LaFave, Search & Seizure, § 4.8(a), at 605 (3rd ed.1996).

Finally, the state suggests that the police would have “inevitably discovered” the marijuana in the shed. But in Martinez, we recognized that “the inevitable discovery doctrine does not apply where a no-knock provision was erroneously included in a search warrant.” 579 N.W.2d at 148.

DECISION

The search warrant application did not contain any particularized reasons so as to justify the authorization of unannounced entry. Accordingly, the evidence seized must be suppressed.

Reversed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.