author: MILLER, Chief Justice. AMUNDSON, Justice

text:
    2000 SD 96
    Steven GANRUDE, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee.
    No. 21194.
    Supreme Court of South Dakota.
    July 19, 2000.
    Considered on Briefs April 24, 2000.
    Decided July 19, 2000.

      Steven R. Binger, Sioux Falls, South Dakota, Attorney for petitioner and appellant.
    Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre,. South Dakota, Attorneys for appel-lee.

      . A "crime of violence” is defined by SDCL 22-1-2(9) as one of the crimes enumerated therein, including burglary, where "the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device.” In 1979, Ganrude struck a man in the head with a tire iron and stole his wallet. He used the tire iron the previous day to break into a towing company to steal money. In 1986, Ganrude used a knife to attempt entry into two businesses in an industrial park area.

   MILLER, Chief Justice.

[¶ 1.] Steven Alan Ganrude appeals the denial of his application for writ of habeas corpus. He claims the habeas court erred in denying his motion for discovery of information regarding sentences imposed for similar offenses and that his life sentence for aggravated assault enhanced by his habitual offender status violates the Eighth Amendment. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The criminal activities which led to Ganrude’s conviction and life sentence took place at the 1991 South Dakota State Fair and are detailed in this Court’s unanimous affirmance on direct appeal. State v. Ganrude, 499 N.W.2d 608 (S.D.1993). Briefly, the facts are that Ganrude and several companions forced 17-year-old Ryan Bowar to endure four to five hours of terror and humiliation at knifepoint. Bowar reported the incident to law enforcement despite Ganrude’s threats to kill Bowar’s family and rape and kill his sister if he did. Ganrude was found guilty of aggravated assault and was adjudicated a habitual offender. He received a life sentence.

[¶ 3.] After we affirmed the judgment of conviction on direct appeal, Ganrude filed an application for habeas corpus, claiming his life sentence violated the Eighth Amendment’s protection against cruel and unusual punishment. Following a hearing, his application was denied.

[¶ 4.] Ganrude raises two issues in this habeas appeal:

1. Whether the habeas court erred in denying Ganrude’s motion for discovery of information regarding sentences imposed for similar, crimes.
2. Whether Ganrude’s life sentence violates the Eighth Amendment’s protection against cruel and unusual punishment.

ANALYSIS AND DECISION

[¶ 5.] 1. The habeas court did not err in denying Ganrude’s motion for discovery of information regarding sentences imposed for similar crimes.

[¶ 6.] The habeas court cited State v. Bonner, 1998 SD 30, 577 N.W.2d 575 as supporting authority for denying Gan-rude’s discovery motion. In Bonner, we stated:

In summary, to assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circum stances fail to suggest gross dispropor-tionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solern factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense.

Id. at ¶ 17, 577 N.W.2d at 580 (emphasis added). The habeas court informed Gan-rude that if it ruled in his favor oh the first prong of Bonner, the grossly disproportionate portion of his Eighth Amendment claim, it would then address the second prong regarding sentencing comparisons. Following a hearing, the court ruled against Ganrude on the first prong and denied his motion for discovery of information relevant to the comparative analysis.

[¶ 7.] Ganrude claims Bonner applies only to review on direct appeal of sentences and does not bar a habeas petitioner from pursuing discovery to show disproportionality. However, the rule of Bonner applies to an Eighth Amendment challenge, regardless of whether the challenge is brought on direct appeal or in a habeas action. The “shock the conscience” test that Bonner, 1998 SD 30 at ¶ 13, 577 N.W.2d at 579, replaced for federal constitutional analysis has been applied in both types of actions to Eighth Amendment challenges. Compare State v. Raymond, 1997 SD 59, 563 N.W.2d 823 with Bult v. Leapley, 507 N.W.2d 325 (S.D.1993). The habeas court did not err in denying Gan-rude’s motion for discovery of materials relevant to the second prong of Bonner when it had ruled against his claim on the first prong.

[¶ 8.] 2. Ganrude’s life sentence does not violate the Eighth Amendment’s protection against cruel and unusual punishment.

[¶ 9.] “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather it forbids only extreme sentences that are ‘grossly disproportionate to the crime.’” Bonner, 1998 SD 30, ¶ 15, 577 N.W.2d at 579 (citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836, 869 (1991) (Kennedy, J., concurring)). We determine whether a sentence is grossly disproportionate to the crime by considering the conduct involved and any relevant past conduct, with utmost deference to the sentencing court and to the legislature. Bonner, supra. We have also stated that life sentences:

‘are rare and should involve a history of much more serious offenses that by reason of their brutality of calculated destructiveness render irrelevant the goal of rehabilitation and require in vindication of public safety and the moral underpinnings of the criminal law that the offender forfeit his right to ever again be set free.... ’

Bult, 507 N.W.2d at 327 (quoting State v. Weiker, 342 N.W.2d 7, 12 (S.D.1983)).

[¶ 10.] The maximum sentence for aggravated assault, a Class 3 felony, is 15 years imprisonment and may include a fine of $15,000.00. SDCL 22-18-1.1; 22-6-1(5). Further, SDGL 22-7-8 mandates that if a defendant has been convicted of three or more additional felonies, with one or more of them being crimes of violence, the sentence for the principal felony is enhanced to that of a Class 1 felony, which carries a maximum sentence of life imprisonment. When Ganrude was sentenced for the aggravated assault of Ryan Bowar, he had a significant criminal history of eight prior felony convictions, including five separate burglaries, two of which are considered violent crimes under South Dakota criminal statutes.

[¶ 11.] The record shows Ganrude was 30 years old when he committed this aggravated assault. He had previously been incarcerated in Minnesota county jails as well as in Minnesota state correctional facilities. He held a G.E.D. completed while in prison. The record showed no evidence of steady employment. By his. own account, he had no family. As observed by the sentencing court, he had a career in crime. His 1986 burglary conviction resulted in the following comments by a corrections officer on his presentence investigation report: “[Ganrude has] an ongoing history of self-destructive antisocial behavior. He had considerable difficulty as a juvenile and he has been locked up almost constantly since becoming an adult. He is currently, looking at his third period of incarceration in a prison setting and he is not yet 25 years old.” Ganrude admitted at the habeas hearing that in the 12 years between ages 18 and 30, he spent 6-8 years in prison and during , his 4-6 years of freedom, he committed eight felonies, excluding the aggravated assault on Bo-war.

[¶ 12.] The sentencing court also took into account Ganrude’s written statements to the court concerning the crime and the victim impact statements of the minor victim and his family. Ganrude!s comments showed no remorse. He considered himself a victim and questioned why he was being “crucified” by Beadle County. Meanwhile, 17-year-old Bowar was nervous, had headaches and nightmares, had difficulty sleeping, had dropped out of school and lost interest in work, was insulting to people, was afraid, to be alone and had no friends. Bowar spoke with his pastor every other day but had not received additional counseling because of the cost. Bowar reported he felt Ganrude represented a continued threat to him as soon as he is released from prison. Bo-war’s father stated he feared Ganrude would make good on his threats to kill the Bowar family when he is released from prison. This report was completed 7½ months after the crime, indicating it had great impact still on the victim and his family.

[¶ 13.] On appeal, Ganrude admits his acts were offensive but claims they were not sufficiently serious to warrant a life sentence. This argument ignores his habitual offender status that .enhanced his sentence for aggravated assault to a life sentence. He also claims he served his time for those prior felonies and should not be punished again. Although this argument is not developed beyond this bare claim, we have previously held that this state’s habitual offender statutes do not violate a defendant’s right against double jeopardy. State v. Nilson, 364 N.W.2d 532, 533 (S.D.1985) (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948)). Any argument on the efficacy of the habitual offender statutory scheme is more properly addressed to the legislature rather than to the courts.

[¶ 14.] In assessing whether Ganrude’s life sentence is grossly disproportionate to the crime, we consider “the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” Bonner, supra. Here, relevant past conduct shows a significant criminal history of eight prior felonies, including crimes of violence. SDCL 22-7-8 mandated that Ganrude’s sentence for aggravated assault be enhanced to a maximum sentence of life imprisonment. His lack of remorse and failure (even now) to acknowledge the seriousness of his conduct are also to be considered.

[¶ 15.] The sentencing court noted Gan-rude is a “career criminal” who trivializes his past criminal conduct. This observation continued to ring true at the habeas hearing. Ganrude has a history of disregard for the law. He has ignored the warnings of his previous felony convictions. State v. Anderson, 1998 SD 98, ¶ 18, 588 N.W.2d 151, 155. A life sentence, under this record, is not grossly disproportionate and presents no Eighth Amendment violation. We affirm.

[¶ 16.] SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 17.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 18.] As I have traveled along the path of sentencing review, I have encountered numerous sentences that have struck me as excessive. In reviewing the ten pages or more of the sentencing transcript in this case and other information in the record, this sentence, after an objective review, certainly, in my mind, constitutes cruel and unusual punishment no matter how you look at it. What is “cruel and usual punishment” has never been precisely defined. In Trop v. Dulles, 356 U.S. 86, 99-101, 78 S.Ct. 590, 597-98, 2 L.Ed.2d 630, 642 (1958), Justice Earl Warren of the United States Supreme Court stated,

[t]he exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court.... The basic concept underlying the Eighth Amendment is nothing less -than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.... The Court [has] recognized ... that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

[¶ 19.] In concluding that this sentence is disproportionate to the crime committed, I can not erase from my mind other appeals that have come before this Court, such as the following cases.

[¶ 20.] In State v. Bonner, 1998 SD 30, 577 N.W.2d 575, Bonner was accused of breaking into a lock box at a party, stealing necklaces, a watch and several two dollar bills and engaging in sexual acts with several minor girls. Bonner, who was charged with third degree rape and second degree burglary, was sentenced to the maximum. punishment of two consecutive fifteen year prison terms. Bonner had no prior felony record and only a few lesser misdemeanors. On appeal, this Court held that the fifteen year sentence for burglary was grossly out of proportion to-the severity of the crime.

[¶ 21.] In State v. Lemley, 1996 SD 91, 552 N.W.2d 409, Lemley strangled a man after Lemley’s friend McClanahan beat him up. Both men left with the deceased’s wallet and car and fled to Sioux Falls. Lemley had a learning disability, a tenth grade education, a third grade reading level, math skills of a sixth grader and an inability to express himself in writing. Lemley was ultimately charged with first degree manslaughter after the murder and burglary charges were dismissed and was sentenced to 350 years in the South Dakota penitentiary. On appeal, we held that Lemley failed to establish that 350 years shocked the conscience of men generally because Lemley was eligible for parole on August 15, 2038 (age 64) and good time release on December 30, 2170. This Court further noted that “the sentencing court imposed a term of years rather than a life sentence to give Lemley an opportunity to rehabilitate himself. ‘[A] term of years allows for rehabilitation and allows [the defendant] hope.’ ” Id. at ¶ 15, 552 N.W.2d at at 413 (quoting State v. Ferguson, 519 N.W.2d 50, 54 (S.D.1994)).

[¶ 22.] In State v. Henjum, 1996 SD 7, 542 N.W.2d 760, Henjum was charged with first degree murder, second degree murder and manslaughter for shooting and killing his roommate. After pleading guilty to first degree manslaughter, Hen-jum was sentenced to forty-five years in the South Dakota State Penitentiary. On appeal, this Court opined that Henjum’s sentence did not amount to cruel and unusual punishment.

[¶ 23.] In State v. Chase in Winter, 534 N.W.2d 350 (S.D.1995), Chase in Winter took his 11 year old male cousin hostage at knife point and did many deplorable acts to him. Chase in Winter had been arrested eight prior times on juvenile delinquency charges, assault and battery, and tribal pickup orders. He ultimately pled guilty but mentally ill to kidnapping and aggravated assault. He was sentenced to 200 years for kidnapping and a concurrent fifteen years for aggravated assault. On appeal, this Court held that Chase in Winter’s sentence did not shock the conscience. We further held that while he was a “young first time felon”, he had had an extensive juvenile record whereby he had committed crimes which mirrored the crimes for which he was presently convicted. He pled guilty to avoid a possible life without parole sentence and received instead an opportunity for rehabilitation, therapy and parole eligibility at the age of forty-six.

[¶ 24.] In State v. Cragoe, 514 N.W.2d 396 (S.D.1994), Cragoe had committed numerous sexual contact offenses. While on probation for those offenses, he babysat for a five and eight year-old girl and sexually molested them. Cragoe was charged with six counts of first degree rape and four counts of sexual contact with a child under age sixteen. Cragoe was sentenced to concurrent 99 year penitentiary terms with thirty-four years conditionally suspended on each sentence. . He would be eligible for parole in ten years. This Court noted on appeal that Cragoe began molesting children at age fifteen and was twenty at the time of this sentencing. Further, based upon the gravity of offenses and his lack of remorse, the sentence did not shock the conscience or was so disproportionate to the crime to violate the Eighth Amendment.

[¶ 25.] In Ferguson, 519 N.W.2d 50, a karate instructor and volunteer in big brother/big sister developed relationships with eight young boys, ranging from ages eight to thirteen, who he later molested. Ferguson was charged with one count of rape and seven counts of contact with a minor. Ferguson was sentenced to 180 years in the penitentiary for rape. Ninety years of his sentence was conditionally suspended and an additional fifteen years was imposed for sexual contact with minors. The sentences were ordered to be served concurrently. We held on appeal that Ferguson’s sentence did not shock the conscience because he had pled guilty to avoid a life sentence without parole. Further, he had placed himself in a position of trust with the victims and then repeatedly sexually abused them.

[¶ 26.] Finally, in State v. Holloway, 482 N.W.2d 306 (S.D.1992), Holloway had drunken confrontation with a man in an alley which led to the stabbing death of the man. Holloway then took the man’s wallet and other property. Holloway was charged with first degree manslaughter and robbery and was sentenced to 121 years for manslaughter and twenty-five years for robbery, to be served consecutively for a total sentence of 146 years. This Court held on appeal that Holloway’s sentence did not shock the conscience because the sentence was well within the statutory limits and he could have received a life sentence without parole. Further, because he received a sentence for a term of years, he would be eligible for parole.

[¶ 27.] When imposing sentences after a plea or conviction, the court is required to draw a line to determine what the proper term would be and not whether or not imprisonment should be ordered. Under our pre-Bonner jurisprudence in Henjum, we have-held that when deciding a case under the old “shock the conscious” test, our Legislature determines the range of sentences, but where it has provided broad sentencing authority that “suggests that a term less than a life sentence[,][it] would be unlikely so shock the conscience of humankind.” See Henjum, 1996 SD 7, ¶ 8, 542 N.W.2d at 762. Even under our new “grossly disproportionate” rule, a sentence of less than mandatory life is not likely to shock any jurist.

[¶ 28.] In the case of Harmelin v. Michigan, 501 U.S. 957, 1014-15, 111 S.Ct. 2680, 2712, 115 L.Ed.2d 836, 878 (1991), the United States Supreme Court, when ruling on an Eighth Amendment issue, stated:

“[T]his Court has ‘not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the 18th century,’ but instead has interpreted the Amendment ‘in a flexible and dynamic manner.’ ” In so doing, the Court has borne in mind Justice McKenna’s admonition in Weems v. United States, [217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793, 801], that “[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.” [citations omitted.]

[¶ 29.] In this case, the finality of this life sentence, the other decisions involving lesser sentences for less severe or as severe offenses and the constitutional restriction against cruel and unusual punishment lead this writer to only one conclusion. “[A] life sentence was just that, a life sentence!.]” See Brim v. South Dakota Bd. of Pardons & Paroles, 1997 SD 48, ¶ 19, 563 N.W.2d 812, 817. This life sentence without parole clearly constitutes cruel and unusual punishment. The only medicine to help in changing or rehabilitating any individual seems to be the “hope” that he or she can again obtain their freedom by amending their attitude and ways. There should generally be a light at the end of the tunnel for any human no matter how bad he appears or how bad his past conduct reflects he is. Mr. Ganrude, when reviewing this record, has done very little to convince a court. that he is remorseful, sorry, or accepts the consequences of his deplorable conduct in this case. While he was not the only individual involved in commission of the deplorable acts for which he was charged, he certainly will be the only when spending the rest of his life incarcerated. It seems as though the result of this sentence is to cast this individual into the human waste dump and let him languish there until he finally totally decomposes and has gasped his last breath. I cannot agree that this should be the severity of the sentence and would hold that a light should remain on at the end of the tunnel for this individual.

[¶ 30.] I would reverse and remand for resentencing proceedings.

      . Ganrude also threatened to kill the prosecutor after he heard his life sentence pronounced. His comments were recorded on the sentencing hearing transcript: "You better hope I never get out 'cuz I’m gonna kill ya, bitch.” As noted, this comment was made after sentencing and did not therefore influence the court in determining Granrude’s life sentence.

      . The dissent also ignores Ganrude's habitual offender status in that none of the seven cases analyzed for comparison to Ganrude's involved a defendant with any prior adult felony record, much less a habitual offender with eight prior felony convictions.

      . We do not address Ganrude’s claim that the sentencing court failed to consider his potential for rehabilitation. "Upon review we will address this subject only if we initially determine there is a gross disproportionality in the sentence.” State v. Milk, 2000 SD 28, ¶ 18, 607 N.W.2d 14, 20 (citing Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d at 580).


source: Caselaw Access Project

author:
AMUNDSON, Justice. SABERS, Justice
      MILLER, Chief Justice

license: Public Domain

text:
    2000 SD 98
    Dorothy OVERFIELD, Plaintiff and Appellant, v. AMERICAN UNDERWRITERS LIFE INSURANCE COMPANY, Defendant and Appellee.
    No. 21211.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 26, 2000.
    Dennis C. McFarland of McFarland and Weidenaar, Sioux Falls, Attorney for plaintiff and appellant.
    Donald A. Porter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, Attorneys for defendant and appellee.
    [¶ 1.] Justice Robert A. Amundson delivers the opinion as to the result of the decision of the Court.
    [¶ 2.] Justice Richard W. Sabers delivers the opinion as to the rationale of the decision of the Court.
   AMUNDSON, Justice.

[¶ 3.] Dorothy Overfield (Dorothy) appeals the trial court’s refusal to give her proposed jury instructions regarding ambiguity. We affirm.

FACTS

[¶ 4.] Craig Overfield (Craig) was employed by the City of Sioux Falls, South Dakota (City) as superintendent of the light department. On September 13, 1994, as part of his upcoming retirement, Craig was required by his retirement package with City to undergo an extensive physical. Craig had suffered from high blood pressure since the early 1970’s and had been taking blood pressure medication. The physical examination revealed that Craig had an abnormal electrocardiogram and he was thereafter referred to a cardiologist.

[¶ 5.] On or around September 21, 1994, Dr. Richard Backes, a cardiologist, peri formed a stress test on Craig and discovered that Craig was suffering from a heart condition. Craig was diagnosed with reduced blood flow to his heart due to a 20 to 40 percent blockage. As a result of the diagnosis, Craig was informed, by Dr. Backes that he was at a high risk of sudden death. Dr. Backes further advised Craig that his treatment options included: (1) medical therapy and life-style changes; (2) to undergo an angioplasty, which is a balloon-type procedure to open up an artery; or (3) to undergo bypass surgery. Dr. Backes suggested medical therapy and life-style changes. Craig followed Dr. Backes’ suggestion and was placed on medication and encouraged to improve his diet and discontinue smoking. Craig was not told to limit his recreational activities, such as hunting and fishing. Craig was also not scheduled for any follow-up appointments for his heart condition.

[¶ 6.] In February 1995 Craig decided to purchase a new pickup. Craig financed the purchase of the pickup through the Sioux Empire Federal Credit Union (Credit Union). In addition to the loan agreement with Credit Union, Craig elected to purchase a credit term life insurance policy in the amount of the loan.

[¶ 7.] The credit term life insurance policy was issued through American Underwriters Life Insurance Company (American). The policy application contained a Disclosure Statement with the provision “I must be under age 65 and I must not be disabled or must not be under the care of a physician for any injury or sickness.” Craig signed the application on February 8, 1995 and paid a premium of $545.03.

[¶ 8.] In June of 1995 Craig’s heart condition deteriorated. Craig eventually developed ischemic heart disease and died of sudden death syndrome on August 14, 1995. Craig’s wife, Dorothy, made a claim to American for the credit life insurance policy proceeds. American denied the claim and rescinded the contract claiming Craig made a material misrepresentation in his application. American’s basis for its deniál was the provision in the Disclosure Statement stating “must not be under the care of a physician for any injury or sickness.”

[¶ 9.] Dorothy initiated a declaratory judgment action against American to determine whether American was contractually obligated to pay Dorothy the insurance policy proceeds. Dorothy later moved to amend her complaint to add a count of bad faith, bifurcate the issues as to coverage and bad faith, and request a jury trial. The motion to amend the complaint was granted and the trial court allowed the coverage issue to be tried before a jury. The issue raised by Dorothy at trial was that the provision “must not be under the care of a physician for any injury or sickness” was ambiguous and should therefore be interpreted against American, the drafters of the provision. The case was tried to a jury on June 22-23, 1999. At the conclusion of the - trial, Dorothy proposed jury instructions eleven through sixteen regarding ambiguity and the effect of ambiguity on a contract. The trial court found the application provision was not ambiguous and rejected Dorothy’s proposed instructions.

[¶ 10.] The jury ultimately returned a verdict in favor of American. Dorothy now appeals, raising the following issue:

Whether the trial court erred in rejecting Dorothy’s proposed jury instructions on ambiguity.

STANDARD OF REVIEW

[¶ 11.] Our standard of review for the trial court’s rejection of a proposed jury instruction is well settled. We have often stated,

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is" not'required to instruct on issues lacking support' in the record. 'Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are' sufficient if théy correctly 'state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give a proposed instruction is on the party contending "error.

Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 13, 601 N.W.2d 693, 596 (quoting Sundt Corp. v. South Dakota Dep’t of Transp., 1997 SD 91, ¶ 19, 566 N.W.2d 476, 480 (emphasis added) (citing Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 32, 557 N.W.2d 748, 758)). This Court has repeatedly stated that “‘[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law.’ ” Atkins v. Stratmeyer, 1999 SD 131, ¶ 55, 600 N.W.2d 891, 903 (Amundson, J., dissenting) (quoting Sundt, 1997 SD 91, ¶ 22, 566 N.W.2d at 481 (quoting State v. Johnson, 320 N.W.2d 142, 147 (S.D.1982))).

[¶ 12.] We have often stated that contract construction is a question of law which we review de novo with “ ‘no presumption in favor of the trial court’s determination.’ ” See Fox v. Burden, 1999 SD 154, ¶ 12, 603 N.W.2d 916, 920 (quotation omitted); Chord v. Reynolds, 1999 SD 1, ¶ 13, 587 N.W.2d 729, 732. Further, “ ‘[w]hether the language of a contract is ambiguous is [also] a question of law for the court.’ ” Campion v. Parkview Apartments, 1999 SD 10, ¶ 25, 588 N.W.2d 897, 902 (quoting Production Credit Ass’n v. Wynne, 474 N.W.2d 735, 740 (S.D.1991) (quoting Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990) (citations omitted))).

DECISION

[¶ 13.] Whether the trial court erred in rejecting Dorothy’s proposed jury instructions on ambiguity.

[¶ 14.] This Court has developed “special rules of construction that apply when interpreting an insurance policy.” Chord, 1999 SD 1, ¶ 14, 587 N.W.2d at 732 (citing Olson v. United States Fidelity & Guar. Co., 1996 SD 66, ¶ 6, 549 N.W.2d 199, 200).

Where the provisions of an insurance policy are fairly susceptible of different interpretations, the interpretation most favorable to the insured should be adopted. This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpretation.... This rule does not mean, however, that the court may seek out a strained or unusual meaning for the benefit of the insured.

Id. (quoting Olson, 1996 SD 66, ¶ 6, 549 N.W.2d at 200). To apply our liberal construction to an insurance contract, the contract language “must be ambiguous and susceptible to one or more interpretations.” Id., ¶ 15, 587 N.W.2d at 732 (citation omitted).

[¶ 15.] We have often held that “ ‘[a] contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.’ ” Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235 (quoting City of Watertown v. Dakota, Minnesota & E. R.R. Co., 1996 SD 82, ¶ 13, 551 N.W.2d 571, 574 (citations omitted)). Whether an insurance policy contains ambiguity is determined “by reviewing ‘the policy as a whole and plain meaning and effect of its words.’” Chord, 1999 SD 1, ¶ 15, 587 N.W.2d at 732 (quoting American Family Mut. Ins. Co. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994)).

[¶ 16.] Dorothy argues that we must determine whether the application provision “must not be under the care of a physician for any injury or sickness” is ambiguous. We agree, but we must also review the record and determine if “competent evidence” was presented at trial which would support the jury instructions on ambiguity and whether the failure to give those instructions was prejudicial. See Atkins, 1999 SD 131, ¶ 55, 600 N.W.2d at 903.

[¶ 17.] During cross-examination of Trudy Helsel, the Assistant Vice President in charge of processing claims for Inter-Americas, she testified as follows:

Q. (Attorney for Dorothy): I guess the question I am going to ask you, ma'am, is of all the people in all 17 states [which they write business in] of all different sizes, shapes, description, are you telling this jury that they all interpret that language under the care of a physician for injury or sickness the same way?
A. (Helsel): I can’t say how everybody interprets the policies, no. ■
Q. Somebody could interpret that questionnaire — for example, if they have a broken arm sitting right there as being injured probably? I don’t know. Are you going to write that risk if he’s sitting there saying wrist works fine, break in the arm right here?
A. (Helsel): Well, yes, I guess. I mean, when the claim comes in — I mean, if he was totally disabled at the time due to that broken arm and he was filing for a disability claim for it, then no, the policy—
Q. All of my questions have to do with credit life. Let’s assume that the day he walks in, one day away from having the cast taken off this arm, he stops in the middle of the process and says gee, am I injured or not?
Under the procedure that I understand that you have described, that person, whoever the person is at the credit union, is supposed to say, whoa, wait a minute. You can’t sign that. I need to give you this application, and we need to send it to Kansas to find out if they’re going to write you. And the person says gee, the cast is coming off this afternoon. That’s still the procedure that you want followed?
A. (Helsel): A broken arm is not a life threatening situation either.
Q. Does your application say life threatening, ma'am?
A. (Helsel): No, it does not.
Q. Is pregnancy an illness or injury?
A. (Helsel): I would say no.
Q. Can it be life threatening?
A. (Helsel): Yes, it can.
Q. So under the language, you could be taking on some horrendous risks that that application or that statement that you make doesn’t cover, correct?
A. (Helsel): I would suppose, yes.
Q. . At one time Craig had — I think the record would indicate he had a groin injury. And I think you saw the doctor diagnosed continued to work, didn’t take time off, probably gave him some pain medicine. I don’t know if that happened. Is that the kind of information you want? It certainly isn’t life threatening.
A. (Helsel): On the application it would — if he had been treated within the last five years for that and listed on the—
Q. The exhibit, ma'am, says under the care of a physician for sickness or injury.
A. (Helsel): At the time that this was signed, if he’s under the care of a physician, then yes.
Q. Even though it’s clearly not life threatening, to use your term?
A. (Helsel): Well, it depends on the term, I guess, as far as under the care of and what the condition is.
Q. Boy, I couldn’t agree with you more, ma'am: Tell me this. A couple weeks ago I had this terrible itch on my arm. I went to see a doctor, described it — or the physician’s assistant said you got in some poison ivy. Have you been out tramping in the brush? I said yes. Reached over in a drawer, took out some pills. I didn’t take them, but they were given to me. Something, I guess, to control the itch or whatever. Now, did that doctor give me a prescription? He gave me drugs that I couldn’t go to the store and buy.
A. (Helsel): If it was a medication that had to be obtained by a prescription, I guess that’s the same as giving you a sample of a prescription.
Q. So if I were medicating for that and taking those pills and I bought a pickup and if I told the person at the credit union that, they would not write the insurance but would— but would instead give me that application? Are you saying that’s the way the company works?
A. (Helsel): No.
Q. All right. They would write the insurance, wouldn’t they?
A. (Helsel): As far as the condition, it’s not an ongoing — it’s not going to be an ongoing condition. Poison ivy is something that you are going to be treated by the doctor maybe on that day and you will be released once— in a few days when the itching stops. i You’re not going to be scheduled for six months or a year to come back for a follow-up for that poison ivy. So, no, you would not be considered under the care for that poison ivy condition.
Q. Is that what the exhibit says?
A. (Helsel): No.
Q. But that’s what you’re getting at. That’s what the person is supposed to understand, correct?
A. (Helsel): Well, I guess.

[¶ 18.] We have previously held that “ ‘[a]n insurer ... may be estopped in reference to the meaning of a particular term in one of its contracts by its own interpretation of that term.’ ” Rumpza v. Donalar Enterprises, Inc., 1998 SD 79, ¶ 14 581 N.W.2d 517, 521 (quoting Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 218 (3dEd. 1996)). In Couch on Insurance, the authors also noted:

Although the construction of a contract of insurance is a matter for the court, in a proper case the court may take into consideration the construction which the parties themselves have made. Where the parties have, by certain acts of their own, placed a construction upon doubtful terms of a contract of insurance, this construction generally will be adopted by the courts as against them. At least, where language used in a policy is of doubtful meaning, and the issuing company has construed the same, such construction must be considered as very persuasive, especially if it is favorable to the insured.

Couch on Insurance § 21:7 (3dEd. 1995).

[¶ 19.] Helsel’s testimony reveals that there is no established interpretation for “must be under the care of a physician for any illness or sickness.” The testimony clearly establishes uncertainty as to the meaning of that phrase. As we have often stated, “ ‘a party cannot claim benefit of a version of the facts more favorable to his contentions than he gave in his own sworn testimony.’ ” See Chord, 1999 SD 1, ¶ 19, 587 N.W.2d at 733; Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 11, 562 N.W.2d 117, 121. As such, American is bound to Helsel’s testimony which supports Dorothy’s contention that the phrase is ambiguous and subject to various interpretations. However, finding the same and finding that the record supported the giving of the ambiguity instructions does not end our inquiry, nor does it relieve Dorothy of her burden to show prejudice caused by the trial court’s failure to submit her proposed instructions to the jury. See Buxcel, 1999 SD 126, ¶ 13, 601 N.W.2d at 596. See also First Natl Bank in Sioux Falls v. Drier, 1998 SD 1, ¶ 10, 574 N.W.2d 597, 599-60 (citations omitted) (noting that “[t]he burden is on the appellant to show prejudicial error and that, under the evidence presented, the jury might and probably would have returned a different verdict if the proposed instruction had been given”).

[¶ 20.] In determining whether Dorothy was prejudiced, we must look at all the instructions. See Sporleder v. Van Liere, 1997 SD 110, ¶ 23, 569 N.W.2d 8, 14; Kuper, 1996 SD 145, ¶ 32, 557 N.W.2d at 758. At the. conclusion of trial, the following instruction was given to the jury, which has not'been assigned error on this appeal:

Jury Instruction 13

The issues to be determine[d] by you in this case are these:
First, was the statement that [Craig] was not under the care of a physician for injury or sickness either a misrepresentation, omission, concealment of fact, or an incorrect statement?
If you answer that question in the negative, you then will return a plaintiffs verdict for the amount of damages set for these instructions.
Second, if you answer it in the affirmative, you have a second issue to determine, namely:
Was the statement fraudulent or material to the defendant’s acceptance of the risk under the policy,- or material to the hazard assumed by the defendant?
If you answer that question in the affirmative, you will return a verdict for the defendant.
Third, if you answer it in the negative, you have a third issue to determine, namely: Would the defendant in good faith either not have issued the insurance policy or not have issued the insurance policy at the same premium rate?
If you answer that question in the affirmative, you will return a verdict for the defendant. If you answer it in the negative to both the second and third issues, you then will return a plaintiffs verdict for the amount of damages set forth in these instructions.

A review of the record shows that substantial evidence existed to allow the jury to determine the misrepresentation issue. The evidence supporting the jury determination is that in Craig’s 1987 and 1989 medical history questionnaires, at a time when he was only on high blood pressure medication, Craig noted that he was “under a doctor’s care.” Further, in 1989, he noted in the questionnaire that he “had been refused life insurance or asked to pay higher than normal premiums.” While the record does not reveal whether Craig had been refused life insurance or required to pay a higher premium, based upon his response in the 1989 questionnaire, Craig was on notice that he was a higher risk insured. In 1994, Craig was diagnosed with a heart condition and was informed that he was at “high risk for sudden death.” His diagnosis also indicated that he had had a previous small heart attack. Finally, he was informed of three treatment options; two of which were significant surgical procedures. Clearly, Craig was on notice that his health condition was quite a bit more severe than a broken arm or poison ivy.

[¶ 21.] This Court has previously noted that an insured has the “duty to disclose all facts material to the risk.” See Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 9, 566 N.W.2d 487, 491 (quoting 43 Am.Jur.2d Insurance § 1010 (1982 & 1996 Supp)). Craig’s medical condition was not a minor ailment, but a life threatening malady. Based upon Craig’s medical history and the close proximity between his diagnosis and purchase of insurance, he should have disclosed his condition on his insurance application. Although the application provision may be ambiguous, substantial evidence existed to allow a jury to find that Craig misrepresented his condition on the insurance application. Dorothy has failed to show that she was prejudiced by the trial court’s rejection of her proposed ambiguity jury instructions.

[¶ 22.] We affirm.

[¶ 23.] MILLER, Chief Justice, and SABERS, KONENKAMP and GILBERTSON, Justices, concur in result.

SABERS, Justice

concurring in result and delivering the opinion as to the rationale of the decision of the Court.

[¶ 24.] I agree with the trial court that under the circumstances of purchasing credit life insurance, the policy language was not ambiguous. As stated, Craig’s medical condition was not a minor ailment, but a life threatening condition. He was at “high risk of sudden death” and under the language of the policy, should have disclosed his condition.

[¶ 25.] Therefore, I concur in result.

[¶ 26.] If this court were to conclude that the language was ambiguous, then it would be reversible error to refuse to give the proposed jury instructions on ambiguity. See Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 13, 601 N.W.2d 593, 596 (stating “[fjailure to give a requested instruction that correctly sets forth the law is prejudicial error.” (citations omitted)); Delzer Construction Co. v. SD State Bd. of Transportation, 275 N.W.2d 352, 355 (SD 1979) (providing that “when there is an ambiguous contract, evidence must be introduced to determine ... the intentions of the parties ... and ... such evidence creates a question of fact, which must be resolved by the jury.”). See also Clements v. Gabriel, 472 N.W.2d 480, 482-83 (S.D.1991) (holding that the trial court did not err in instructing the jury to construe an ambiguous contract against the draftsman); Delzer, 275 N.W.2d at 356-57 (providing that the instruction given, implicitly construing an ambiguous contract against the draftsman, was accurate).

[¶ 27.] KONENKAMP, Justice, joins this concurrence in result.

MILLER, Chief Justice

(concurring in result).

[¶28.] Although I agree with Justice Sabers’ special writing, I cannot join the last paragraph. The language of the credit life policy was not ambiguous, therefore I concur in result.

[¶ 29.] GILBERTSON, Justice, joins this concurrence in result.

      . Craig was placed on a different blood pressure medication in September 1994 due to his newly diagnosed heart condition.

      . The proposed instructions were as follows:
      [Dorothy’s] Proposed Jury Instruction No. 12 Language in a contract may be said to be ambiguous when it is reasonably capable of being understood in more than one sense.
      [Dorothy's] Proposed Jury Instruction No. 13 Any doubts arising from ambiguity of language in contracts are to be resolved against the drafter of the contract.
      [Dorothy’s] Proposed Jury Instruction No. 14 The Defendant drafted the language of the policy for Group Credit Insurance, includ- ' ing the Disclosure Statement contained in the application.
      [Dorothy’s] Proposed Jury Instruction No. 15 Where a provision of an insurance policy is fairly susceptible to different interpretations, the interpretation most favorable to the insured should be adopted.
      [Dorothy's] Proposed Jury Instruction No. 16 An ambiguous provision in a policy is con- ’ strued in favor of insurance and against the one who drafted the contract and caused the uncertainty to exist.

      . In denying Dorothy's proposed instructions, the court held:
      The Court [in Alverson v. Northwestern Nat'l Cos. Co., Í997 SD 9, 559 N.W.2d 234] went on to hold that the contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct. .And then it goes on to define the specific rules of interpretation which apply if a contract is ambiguous and again cites the Rogers case cited by [American] that an ambiguity is not of itself created simply because the parties differ as to the interpretation of the contract and that an insurance contract must be construed according to the plain and ordinary meaning, and the Court cannot force a construction or create a new contract for the parties.
      In this case the language that is at issue is a part of a sentence which states “and must not be under the care of a physician for any injury or sickness." That language is not ambiguous, does not make the contract ambiguous. However, whether or not [Craig] was under the care of a physician is a question of material fact, and that is to be decided, by the jury.


author: GILBERTSON, Justice

text:
    2000 SD 99
    Alvin HOEKMAN and Bette Hoekman, Plaintiffs and Appellants, v. Timothy NELSON and Federal Express Corporation, Defendants and Appellees.
    No. 21270.
    Supreme Court of South Dakota.
    Argued May 31, 2000.
    Decided July 26, 2000.

      Chad W. Swenson, A. Russell Janklow, Mathew, T. Tobin of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Mark Haigh, Melissa C. Hinton of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   GILBERTSON, Justice

[¶ 1.] In this personal injury action plaintiff Alvin Hoekman (Hoekman) appeals the circuit court’s grant of summary judgment to defendant Federal Express Corp. (Federal Express), determining that while Federal Express owed a limited duty of care to him, Hoekman was contributorily negligent more than slight as a matter of law. We affirm on the basis that the duty of care of Federal Express in these circumstances extended only to ensure Hoek-man’s safe passage in front of the, Federal Express vehicle.

FACTS AND PROCEDURE

[¶ 2.2 On October 17, 1995, Hoekman was injured as he crossed South Burr Street in Mitchell, South Dakota. An employee with the Iverson Max automobile dealership in Mitchell, he had walked across the street to the Quick Fill Gas Station, and was returning to Iverson Max. Instead of crossing at the designated intersection approximately 100 feet away which contained traffic lights, Hoekman crossed the two southbound lanes of traffic on Burr Street and was standing in or next to the left-hand, northbound lane of traffic. While Hoekman was attempting to cross in the. middle of the street, a northbound Federal Express truck, driven by James Reinholt, approached and came to a stop, as he believed he would have hit Hoekman with his side mirror if he had not stopped.

[¶ 3.] Reinholt signaled to Hoekman by waving his hand, which Hoekman interpreted to mean “[g]o ahead and pass in front of my vehicle.” Hoekman began jogging across the remainder of Burr Street, but after safely passing in front of the Federal Express truck, he was struck in the adjacent outside lane of traffic by an on-coming northbound vehicle driven by Timothy Nelson. At no time did Hoekman look to see if there were any on-coming vehicles in the lane outside of the Federal Express truck. Reinholt testified he never saw Nelson prior to the impact with Hoek-man.

[¶ 4.] The collision propelled Hoekman’s body approximately 10 feet from the point of impact. Hoekman sustained a fractured left hip, fractured right leg, injuries to his elbows and shoulders, and his left femur was completely severed from the ball socket.

[¶ 5.] Hoekman brought a personal injury action against both Federal Express and Nelson. The complaint against Nelson was eventually dismissed for lack of timely service. Federal Express filed a motion for summary judgment, claiming: (1) its driver owed no duty of care to Hoekman beyond its own lane of travel; (2) its driver had not been negligent in giving the hand signal; and, (3) Hoekman was contributorily negligent more than slight. After a hearing, the circuit court granted the summary judgment motion of Federal Express, finding that while Federal Express owed a duty of care to Hoek-man as he passed in front of the truck, Hoekman had been contributorily negligent as a matter of law. Hoekman appeals, raising the following issue for our consideration:

Whether the circuit court erred in granting .summary judgment to Federal Express.

STANDARD OF REVIEW

[¶ 6.] Our standard for reviewing the grant or denial of a summary judgment motion in actions which involve tort claims is well settled. This Court stated in Estate of Shuck v. Perkins County:

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(e). 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).
[Julson v. Federated Mutual Insurance Company,] 1997 SD 43, ¶ 5, 562 N.W.2d 117, 119 (quoting Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850/852); accord VerBouwens v. Hamm Wood

Prods., 334 N.W.2d 874, 876 (S.D.1983). 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586. Although we may not agree with the rationale of the circuit court, we will uphold summary judgment if there is a valid basis to do so. St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994) (citing King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993)).

ANALYSIS AND DECISION

[¶ 7.] The Extent of the Duty of Federal Express Towards Hoekman.

[¶ 8.] Whether a duty exists is typically a matter of law to be decided by the court, not a jury. Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995). “A duty, in negligence cases,, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Tipton v. Town of Tabor, 1997 SD 96, ¶ 12, 567 N.W.2d 351, 357 (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 53, at 356 (5th ed. 1984)); 57A Am.Jur.2d Negligence § 83. In order to maintain a negligence action and before a defendant can-be found negligent, a plaintiff must prove a duty existed from the defendant to the plaintiff. See Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 7, 545 N.W.2d 823, 825 (stating “[t]he existence of a duty owed by the defendant to the plaintiff ... is elemental to a negligence action.”); Yankton Prod. Credit Ass’n. v. Jensen, 416 N.W.2d 860, 864 (S.D.1987) (noting that “[t]he first requirement for an action in negligence is to establish that a duty exists.... ”); Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D.1985) (stating “the existence of a duty of care on the part of a defendant to a plaintiff is an essential element of a negligence action.”).

[¶ 9.] The dispositive issue in this case is: does a genuine issue of material fact exist whether the Federal Express driver owed Hoekman a duty, and was thus negligent, in giving him a hand signal. Federal Express contends that it did not owe Hoek-man a duty of care once he safely passed in front of the truck, that the driver’s signal merely signified a yielding of its driver’s right-of-way and that the signal could not have been reasonably interpreted as' a representation that Hoekman could safely procéed across the entire remainder of the street. Hoekman argues Federal Express owed him a duty of care to assure his safety across the street after giving the hand signal, and whether Federal Express breached that duty is a question of fact for the jury to decide. He also argues the meaning of the Federal Express driver’s hand signal is a question of fact to be resolved by a jury.

[¶ 10.] Whether a driver of a motor vehicle can be held to be negligent in giving this type of hand signal is an issue of first impression in South Dakota. Many courts have confronted this issue, and there is a distinct split of authority. See Joseph B. Conder, Annotation, Motorist’s Liability For Signaling Other Vehicle Or Pedestrian To Proceed, Or To Pass Signaling Vehicle, 14 A.L.R.5th 193 (1993) (citing cases) [hereinafter Conder]. Almost all courts which have ruled on this issue agree that a driver has no affirmative duty to signal or warn another vehicle or pedestrian whether or not to proceed or pass. See, e.g., Peka v. Boose, 172 Mich.App. 139, 431 N.W.2d 399, 401 (1988); Conder, supra at 202. However, courts are divided on the issue of whether a driver’s signal creates a jury question concerning negligence. See generally Conder, supra. Decisions holding that a. driver giving a signal to another motorist or pedestrian can constitute negligence, rely upon the rationale stated by Justice Cardozo: “[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Nolde Brothers, Inc. v. Wray, 221 Va. 25, 266 S.E.2d 882, 884 (1980) (citing Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922)). Other courts rely on a similar principle found in the Restatement (Second) of Torts § 324A, which provides:

One who. undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or third person upon the undertaking.

See e.g., Lindsley v. Burke, 189 Mich.App. 700, 474 N.W.2d 158, 160-61 (1991); Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459, 461 (1987); Cunningham v. National Service Industries, Inc., 174 Ga.App. 832, 331 S.E.2d 899, 902 (1985). While this Court has adopted the Restatement (Second) of Torts § 324A (see Schoenwald v. Farmers Co-op. Ass’n., 474 N.W.2d 519 (S.D.1991) and Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974)), we have not applied it to facts and circumstances present in this case. Hoekman argues § 324A is applicable to these facts, claiming the Federal Express driver assumed a duty to act with reasonable care in giving the signal which applies to passage across all remaining lanes of traffic.

[¶ 11.] The circuit court determined that the driver of the Federal Express truck owed Hoekman a duty, but it only applied to his safe passage across the lane occupied by the truck, and not to the remaining lane of traffic which was to become the site of impact. We agree. While there is a split of authority on this issue, the more persuasive line of cases determine that a motorist signaling to a pedestrian or another motorist in a factual situation such as the one before us does no more than yield the right-of-way, rather than signal it is safe to proceed across another lane of traffic. See Conder, supra at 208 (citing eases).

[¶ 12.] In Shank v. Government Employees Ins. Co., 390 So.2d 903 (La.Ct.App. 1980), the court held a driver’s act of signaling the decedent plaintiff across the highway did not create a duty to ensure safe passage across the entire street. The decedent had attempted to cross a four-lane street, when a driver approached and stopped. The driver motioned to the decedent to move on, and the decedent safely passed in front of the driver’s vehicle. When she began to cross the second lane of travel, she was struck by a second vehicle. As here, the plaintiff argued the decedent was entitled to rely on the driver’s signal to cross the street. The appellate court, however, reversed the trial court’s verdict in favor of the plaintiff and held that the signaling driver “did not owe decedent any duty to assure her safe passage across the remainder of the highway once she had crossed in front of his truck.” Id. at 905. In reaching its decision it, “rejected] the proposition that an adult may step blindly onto a highway solely in reliance upon the signal of a third party,” and held as a matter of law the driver was not negligent. Id.

[¶ 13.] Similarly, in Government Employees Insurance Co. v. Thompson, 351 So.2d 809 (La.Ct.App.1977), the court held that a motorist’s signal to another motorist to pass in front of his truck meant only that — it was safe to pass only in front of his vehicle. The court stated:

Mr. Decuir’s signal was intended to give Mr. Thomas permission to pass in front of Mr. Decuir’s stopped truck. Mr. Thomas cannot be relieved thereby of his obligation to keep a proper lookout for oncoming traffic in other lanes of traffic. His misinterpretation of Mr. Decuir’s courteous gesture cannot serve to render Mr. Decuir guilty of negligence proximately causing the ensuing accident.

Id.' at 810.

[¶ 14.] Likewise, in Dawson v. Griffin, 249 Kan. 115, 816 P.2d 374 (1991), the court determined that while a truck driver’s hand signal may have been unclear as to whether it was a guarantee of safety or simply a courteous gesture to indicate he was yielding the right-of-way, the signaled motorist nevertheless could not shift the blame to the truck driver. Id. at 379. The signaled driver “had a nondelegable duty to yield to oncoming traffic while making a left turn; and the only reasonable and safe thing to assume from a hand wave is, 7 won’t hit you.’ ” Id. See also Shank, 390 So.2d at 904 (finding that a signal by a motor vehicle operator to a pedestrian is nothing more than a statement meaning “to move on.”); Nolde, 266 S.E.2d at 884 (motorist’s signal could be either a yielding of the right-of-way or an act of frustration, but could not have been reasonably interpreted that it was safe to cross); Dix v. Spampinato, 28 Md.App. 81, 344 A.2d 155, 170 (1975) (stating that the motorist’s signal was a manifestation that as far as he was concerned the other party could proceed).

[¶ 15.] To require a signaling motorist to assume the responsibility to assure a pedestrian or another motorist that he or she will be safe from other oncoming traffic would place, an unduly heavy burden on the signaler. This burden may be extreme and even impossible, since the signaler cannot control the actions of the other vehicles. There are also certain types of vehicles that contain blind spots, which preclude the yielding driver from seeing what is coming from behind. Reinholt testified there was such a blind spot on his truck despite its mirrors. While Hoekman points out that Reinholt testified he could see down the sides of his truck with the use of his mirrors, Reinholt also testified that he could not see completely behind his vehicle.

[¶ 16.] There are those situations where a signaler in the driver’s seat of his vehicle cannot be in a position to see right-lane traffic traveling in the same direction. Nolde, 266 S.E.2d at 884 (citing Thompson, 351 So.2d at 810; Dix, 344 A.2d at 169). See also Wulf v. Rebbun, 25 Wis.2d 499, 131 N.W.2d 303, 308 (1964) (Currie, CJ., concurring) (noting that a signaler could not be found to be negligent if evidence revealed he was not in a position to ascertain whether it was safe to proceed); Kerfoot v. Waychoff, 501 So.2d 588, 589 (Fla.1987) (noting that the signaling driver was in virtually an “impossible position to determine if the adjacent lane was clear of motor vehicles,” and could not “determine the status of traffic in the outside northbound lane.”); Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073, 1082 (1955) (concluding that the plaintiff was aware the signaling driver “was on the left side of the cab of his truck and therefore in no position to see, or to give her any assurance, that there was no traffic approaching upon the right of his truck from the rear.”).

[¶ 17.] Hoekman contends that he believed Reinholt “knew the traffic situation across Burr Street when he signaled Alvin to cross.” However, it is unreasonable to conclude that Reinholt, driving a Federal Express truck, could guarantee Hoekman’s safety across the rest of Burr Street when he could not see behind the truck for on-coming traffic. Reinholt was in. an almost impossible position to determine if the adjacent lane of Burr Street was clear of other vehicles. At the very least, Reinholt was in no better position to determine whether it was safe for Hoek-man to proceed across the remaining lane of travel than Hoekman was himself. Dawson, 816 P.2d at 378 (citing Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 P. 718 (1931)). Hoekman had an obligation to observe whether it would be safe for him to cross the remaining lane of traffic and to not “step blindly onto a highway solely in reliance upon the signal of a third party.” Shank, 390 So.2d at 905. As the court stated in Kerfoot:

[W]here the situation appears to be as much within the observation and estimation of the signaled driver as it is within that of the signaling one, and the signaled driver then proceeds without proper lookout and without exercising due care, it seems that the signaling driver will not be found guilty of the negligence, on the theory that in such case he is only signaling his intention to waive his right of way.

501 So.2d at 589 (citing A.G. Barnett, Annotation, Duty and Liability as to Signaling Driver Approaching From Opposite Direction or on Intersecting Highway to Pass or Proceed, 90 A.L.R.2d 1431, 1433 (1963)).

[¶ 18.] In this case, Reinholt was forced to stop because he thought he would hit Hoekman, who was standing in his lane of traffic or so close to it he may have been struck by the vehicle’s mirror. Once he stopped, • Reinholt had a duty to remain stopped until Hoekman had safely passed. However, once Hoekman had passed, Re-inholt did not have a duty to ensure Hoek-man’s safe passage across the remaining lane of traffic, as he was not in a position to view all traffic coming from the rear. It was unreasonable for Hoekman to assume Reinholt’s gesture meant it was safe to proceed across the remaining lane of traffic. Hoekman could have observed what was on-coming in the outside lane once he passed the Federal Express vehicle but by his own admission he failed to do so and jogged forward. Under the facts and circumstances in this case, Federal Express did not owe a duty of care to ensure Hoekman’s safety across the entire street. Thus, Hoekman’s negligence claim against Federal Express fails, and the circuit court’s grant of summary judgment is affirmed.

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

      . All parties to this case are adults. We express no opinion concerning this issue as to non-adults.

      . At one point in his deposition, Hoekman claimed he assumed Reinholt was waving him across the street. At another point in his deposition Hoekman claimed he believed the signal to mean "[g]o ahead and pass in front of my vehicle.” Reinholt claimed he threw up his hands as if to say "what are you going to do?” For purposes of review of a summary judgment we must construe the facts in a light most favorable to the non-moving party, Hoekman, that being he assumed Reinholt was waving him across the street.

      . In Cuppy we held that a motorist who volunteered to lead another motorist who the first knew to be intoxicated, owed no duty to persons in another car who were struck by the intoxicated motorist. In Schoenwald we held that an insurance company which did inspections of an elevator for purposes of setting premiums did not voluntarily assume a duty of due care to third parties concerning safety conditions at the elevator. We stated "[w]hile we held that the facts in Cuppy did not bring that case within the parameters of § 324A, we nonetheless accepted its applicability.” Schoenwald, 474 N.W.2d at 521.

      . The circuit court ruled in favor of Federal Express on the basis that Hoekman was comparatively or contributorily negligent more than slight as a matter of law. As we find no duty existed on the part of Federal Express beyond its own lane of travel, we do not reach the issue of comparative or contributory negligence.


author: STREIT, J. MAHAN, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Krista Renee GRANT, Defendant-Appellant.
    No. 99-139.
    Court of Appeals of Iowa.
    April 28, 2000.

      Michael Lanigan, Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
   STREIT, J.

Guests “are often welcomest when they are gone.” William Shakespeare, The First Part of King Henry the Sixth, act 2, sc. 2. Lorenzo Dollison found these words ringing true, when faced with houseguests who brought drugs and trouble to his home. In an effort to alleviate this trouble, Dollison sought the help of the police. In a search of Dollison’s apartment, the police searched a jacket of one of his guests. Inside, the officers found a large quantity of crack cocaine. The jacket belonged to Krista Grant, who now claims the search violated her Fourth Amendment rights. We agree, finding it was unreasonable under the circumstances for officers to believe Dollison had the authority to consent to all closed containers in the room where Grant was staying. Because the search violated Grant’s Fourth Amendment rights, we reverse the conviction, overturn the trial court’s denial of her motion to suppress, and remand for further proceedings.

I. Background Facts & Proceedings.

In the early morning hours of June 16, 1998, Lorenzo Dollison, upset with his houseguests, left his Waterloo apartment and walked down to the local police station. At the station, he told the police a woman just brought a gun into his home, hid it somewhere inside, and then left with the promise of returning with more. Dolli-son asked for help in removing the weapon. Officers were dispatched, and Dollison returned home to await their arrival.

A short time later, Dollison greeted the responding officers outside his home and again recounted his story regarding the weapon. After confirming Dollison was the only tenant, officers accompanied him into the apartment. Dollison directed officers to one of the two bedrooms in the apartment. Upon entering the bedroom, the officers were greeted by the defendant, Krista Grant, and her boyfriend, Torrey Brown, lying naked on the bed. Grant and Brown had just arrived in Waterloo from Chicago and were staying with Dollison on a short-term basis. In exchange for Dolli-son’s hospitality, Brown gave him some money for beer and cigarettes, as well as a small amount of crack cocaine. The couple, however, quickly wore out their welcome, and Dollison requested the couple leave on two separate occasions.

Upon rousting the couple from their slumber, the officer instructed the couple to dress and told them they were looking for a gun. The couple admitted seeing the weapon and suggested it may be between the bed’s mattress and box spring. The couple offered to assist the police in their search, but an officer ordered them from the room. In searching the room, an officer picked up Grant’s jacket and noticed it was unusually heavy and contained a large bulge in one pocket. Fearing it was the weapon, the officer unzipped the pocket and discovered the crack cocaine Brown intended to sell. In an effort to determine the owner of the jacket, the officer told the couple to get their personal belongings out of the room. In picking up their stuff, Brown told Grant numerous times to get her jacket from the officer. She denied it was her jacket, and the couple left the room leaving the jacket with the officer. The officer arrested the couple for possession of the crack cocaine. The gun, a .22 caliber rifle, was discovered under the bed.

Brown and Grant confessed to possessing the crack cocaine and to knowing the location of the rifle. The State charged Grant with possession with intent to deliver more than five grams but less than fifty grams of crack cocaine.while in the immediate possession of a firearm, and a drug tax stamp violation. See Iowa Code §§ 124.401(1)(a), 124.401(1)(e) (1997). Grant moved to suppress the admission of the crack cocaine, claiming the officers violated her Fourth Amendment right to be free from unreasonable .search and seizure. Grant waived her right to a jury trial and agreed to submit the case to the court on stipulated facts. The court received all the depositions, minutes of testimony, and the testimony from the motion to suppress. The court found her guilty of possession with intent to deliver crack cocaine while in immediate possession of a firearm, forgot to specifically deny the motion to suppress in its findings, and sentenced her accordingly.

Grant appeals, claiming the trial court erred in denying her motion to suppress.

II. Preservation of Error.

Grant filed her motion to suppress on November 18, 1998. There was no ruling on the motion to suppress prior to the bench trial on the merits of the case. On January 8, 1999, Grant appealed her conviction and sentence. After the appeal was filed, her appellate counsel filed a motion in district court seeking a ruling on the motion to suppress. On June 28, 1999, the court entered a ruling denying the motion to suppress.

It is clear the district court did not have jurisdiction to address the motion to suppress. As a general rule, a district court loses jurisdiction over the merits of a controversy once the notice of appeal is perfected. Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995). The district court retains jurisdiction only as to issues collateral to and not affecting the subject matter of the appeal. Waterhouse v. Iowa Dist. Ct., 593 N.W.2d 141, 142 (Iowa 1999). Here, the issue addressed in the ruling entered after the appeal was filed mimics the issue raised on appeal. Because the district court lacked jurisdiction to further address the motion to suppress, we do not consider the court’s June 1999 ruling.

It is quite clear, however, that by proceeding to the trial on stipulated facts, the court implicitly overruled the motion to suppress. The motion to suppress was to be ruled on in conjunction with the court’s finding of guilt but was overlooked in the court’s written findings. Furthermore, the State does not allege Grant failed to preserve error. Rather, the State concurs the issue was properly preserved for appellate review. We, therefore, hold the issues raised by the motion to suppress are properly before us.. ,

III. The Search.

Grant first contends the search of the bedroom was unreasonable under the Fourth Amendment. She claims she had a privacy interest in the bedroom and the officers were not operating under any legitimate exception to the warrant requirement.

A. Standard of Review.

When assessing an alleged violation of a constitutional right, we review de novo the totality of the circumstances as shown by the entire record. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). We consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996).

B. The Bedroom.

Grant contends, because she had a privacy interest in the bedroom and the owner of the home had no authority to consent to the search, her Fourth Amendment rights were violated. The Fourth Amendment to the United States Constitution secures the right of the people to be free from unreasonable government searches. U.S. Const, amend. IV. The Fourth Amendment, however, is not a general societal protection, but rather “a personal right that must be invoked by an individual.” Minnesota v.-Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473,142 L.Ed.2d 373, 379 (1998). The extent of protection it affords an individual depends largely on the location of the person seeking its safeguards. Id. at 88, 119 S.Ct. at 473, 142 L.Ed.2d at 379. The capacity to invoke the protections of the Fourth Amendment depends “upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128,143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978). It is incumbent upon the defendant to show she had a legitimate expectation of privacy in order to litigate the lawfulness of the government search. State v. Osborn, 200 N.W.2d 798, 803 (Iowa 1972). A legitimate expectation of privacy in an invaded place, however, is not so narrowly construed as to mean only a person’s home. Rather, even an overnight guest has a legitimate expectation of privacy in the host’s home. Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85, 95 (1990). That expectation of privacy, however, is applicable only to the unwarranted actions of government actors. It does not ensure the guest’s “possessions will not be disturbed by ... [the] host and those [the] host allows inside.” Id. at 99, 110 S.Ct. at 1689, 109 L.Ed.2d at 94. Thus, an overnight guest’s legitimate expectation of privacy does not vitiate the homeowner’s ability to consent to a search of his home. See United States v. Oates, 173 F.3d 651, 656 (8th Cir.1999); United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992) (“[the homeowner] possessed authority to consent to a search of his own home, including the guest bedroom where [defendant] spent the evening.”); United States v. Salinas-Cano, 959 F.2d 861, 863 (10th Cir. 1992); United States v. Isom, 588 F.2d 858, 860-61 (2d Cir.1978) (“As the lawful tenant, [the homeowner] clearly had authority to consent to a search of her premises, even though a ‘guest’ was also present.”). A consent search of a home is only proper if the police reasonably believed the person granting the police permission to search had the authority to do so. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 159-60 (1990).

Grant, as an overnight guest, did have a legitimate expectation of privacy in the Dollison home. Dolhson’s consent, however, countermands that privacy interest. It is undisputed that Dollison granted the officers permission to search his apartment. See Oates, 173 F.3d at 656. Dollison was the sole tenant on the lease and had free access to all rooms in the apartment. See id. The room searched was normally Dollison’s private bedroom and still contained his personal effects. It could be expected Grant’s host would need ready access to the room. See 3 Wayne R. LaFave, Search and Seizure § 8.5(d), at 796 (3d ed. 1996) (“If, for example, the room contains personal effects of the host which it could be expected the host would want ready access to on a regular basis, this is a factor in favor of upholding the host’s consent.”). Dollison also requested Grant leave the residence, and she failed to comply. See Oates, 173 F.3d at 656; Isom, 588 F.2d at 860-61 (“[E]ven if appellant had some right, doubtful at best, as a ‘licensee’ to countermand [the homeowner’s] consent to the search, [the homeowner] had undoubtedly revoked the ‘license’ by asking appellant to leave her apartment.”). Finally, the search was undertaken to ensure Dollisoh’s safe and secure enjoyment of his home. See 3 Wayne R. LaFave, Search and Seizure § 8.5(d), at 796 (3d ed. 1996) (“If the search was undertaken upon the initiative of the host for reason relating to the host’s interest in the safe and secure enjoyment of his premises, then this is a factor in favor of recognizing the host’s consent as effective.”). Under the totality of the circumstances, we find Dollison had the authority to consent to the search of the bedroom in which Grant was located.

C. The Jacket.

Grant next claims the trial court erred in denying her motion to suppress because she had a legitimate expectation of privacy in her jacket and the government was not operating under an exception to the warrant requirement.

1. The Consent Exception.

The State first contends the search was permissible under the consent exception to the Fourth Amendment. While one may have the authority to consent to the search of a general area, that authority does not automatically “extend to the interiors of every discrete enclosed space capable of search within the area.” United States v. Block, 590 F.2d 535, 541 (4th Cir.1978). Guests in a home retain a privacy interest in their personal items that cannot be waived by their host’s consent to search the general premises. See United States v. Gilley, 608 F.Supp. 1065, 1068 (S.D.Ga.1985); see also United States v. Karo, 468 U.S. 705, 726, 104 S.Ct. 3296, 3309, 82 L.Ed.2d 530, 548-49 (1984) (O’Connor, J., concurring) (“[W]hen a guest in a private home has a private container to which the homeowner has no right of access, ... the homeowner ... lacks the power to give effective consent to the search of the closed container.”); United States v. Salinas-Cano, 959 F.2d 861, 863 (10th Cir.1992); United States v. Poole, 307 F.Supp. 1185, 1189-90 (E.D.La. 1969); 3 Wayne R. LaFave, Search and Seizure § 8.5(d), at 799 (3d ed.1996). Therefore, Grant retained a privacy right in her jacket, and Dollison did not have actual authority to consent to the search of the jacket.

Determining whether a party’s consent to a search is valid, however, is not driven solely by whether the , party has actual authority to consent to the search. Law enforcement officers may also rely on the apparent authority of the consenting party. For officers .to rely .on a claim of apparent authority, they must “reasonably (though erroneously) believe that the person who has consented to their” search had authority to do so. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 160 (1990). However, if the surrounding circumstances raise reasonable doubts as to the authority of the consenting party, officers have an obligation to make further inquiries into the precise nature of the situation. Id. at 188-89, 110 S.Ct. at 2801, 111 L.Ed.2d at 161; see United States v. Salinas, 959 F.2d at 864; United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir.1991) (“The [government’s] burden cannot be. met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.”); United States v. Poole, 307 F.Supp. at 1190. Without further inquiry, the search is unlawful. Illinois v. Rodriguez, 497 U.S. at 189, 110 S.Ct. at 2801, 111 L.Ed.2d at 161.

Upon entering a bedroom the officers believed empty, they immediately encountered a situation fraught with ambiguity. The officers found a couple sleeping naked in .the bedroom. The officers did not know the relationship between Dollison and the occupants of the room or which items belonged to which party. It was clear Grant and her companion were guests and, given their state of disrobement, at least some of the clothing in the room belonged to them. The officers, faced with this surprising and somewhat perplexing situation, did not make further inquiry into the circumstances surrounding Grant’s stay or the extent of her belongings. Rather, the officers proceeded to remove both Grant and her companion from the room and began searching. It was only after an officer discovered the crack cocaine did officers inquire into who owned the jacket. Such inquiry was too late. Under the circumstances known to the officers at the time of the search, it was unreasonable to believe Dollison had the authority to consent to all closed containers in the bedroom.

2. Abandonment.

The State next contends because Grant denied ownership of the jacket she fails to have a recognizable expectation of privacy for purposes of Fourth Amendment protection. The Fourth Amendment does not protect voluntarily abandoned property. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687 (1960); State v. Bumpus, 459 N.W.2d 619, 625 (Iowa 1990). However, an abandonment of property is not normally construed as voluntary if it was in direct response to an illegal search or seizure. See e.g., United States v. King, 990 F.2d 1552, 1564 (10th Cir.1993); United States v. Brady, 842 F.2d 1313, 1315 n. 7 (D.C.Cir.1988) (“[A]bandonment will not be recognized when it is the result of illegal police conduct.”); cf. United States v. Roman, 849 F.2d 920, 923 (5th Cir.1988) (ruling an illegal x-raying of a suitcase did not lead to defendant’s abandonment as he was completely unaware of the illegality). In determining the causal nexus between the illegality of a search and the abandonment, we examine the totality of the circumstances including the temporal proximity between the constitutional violation and the abandonment, any intervening circumstances, and the flagrancy of the State’s misconduct. Cf. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 427 (1975) (citations & footnote omitted).

From the record it appears Grant was aware the officers had found the crack cocaine before they asked Grant and her boyfriend to gather their belongings.' Understandably, Grant no longer wanted to be associated with the jacket and refused to acknowledge ownership. The temporal proximity between the illegal search and the subsequent abandonment was nearly instantaneous, and there were no other intervening circumstances. Grant’s abandonment of the jacket was directly caused by the illegal search. Therefore, the abandonment was involuntary and cannot be relied on in denying her the opportunity to assert her Fourth Amendment claims.

TV. Conclusion.

Grant not only had a constitutionally protected right to privacy in her jacket, but the actions of the officers violated that right. The appropriate remedy for such violation is suppression of all evidence directly or indirectly gathered through the search. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453 (1963). The district court decision denying the motion to suppress and the conviction based thereon is reversed, and a new trial is ordered. We remand to the district court for further proceedings in conformance with this opinion.

REVERSED AND REMANDED FOR NEW TRIAL.

All judges concur except MAHAN, J., who dissents.

MAHAN, J.

(dissenting).

I respectfully dissent. Grant filed a motion to suppress but did not seek a ruling thereon prior to proceeding to a trial on stipulated facts. It was only after her appeal was filed that appellate counsel filed a separate motion seeking a ruling from the district court on the motion to suppress. The majority correctly concludes the district court did not have jurisdiction to address the motion to suppress at that time. However, the majority then concludes it is “quite clear” from the record that the district court had previously implicitly overruled the motion to suppress. I disagree.

It is a defendant’s duty to seek a ruling on a motion to suppress. That did not happen under this record. Appellate counsel recognized this and attempted to correct the matter after the appeal was filed. This attempt was unsuccessful. I disagree with the majority’s conclusion the district court “implicitly overruled” the motion to suppress simply by proceeding to a trial on stipulated facts. It would be more reasonable under these facts to conclude the district court considered the motion withdrawn. I would conclude the issue has not been preserved for review and would affirm the district court.

      . Although Dollison was rather nonspecific as to the identity of the woman, she was actually romantically involved with Dollison, was in the apartment earlier in the evening, and occasionally stayed with Dollison at his apartment.

      . Brown was sent to Waterloo by a drug connection to sell a large quantity of crack cocaine. Grant accompanied him, serving as the vessel for hiding the drugs.

      .In the course of Dollison’s narrative at the police station, there was a miscommunication as to the type of gun involved. Dollison said he told the officer the gun was a .22 caliber rifle. The officer, in dispatching a unit to Dollison's- apartment, described the weapon as a .22 caliber pistol.

      . Grant alleges the search violated both the Fourth Amendment to United States Constitution and article I, section 8, of the Iowa Constitution. Because, "the language of those clauses is substantially identical and we have consistently interpreted the scope and purpose of article I, section 8, of the Iowa Constitution to track with federal interpretations of the Fourth Amendment” we will address her arguments jointly. State v. Showalter, 427 N.W.2d 166, 168 (Iowa 1988).

      . This case turns squarely on the applicability of the consent exception to the Fourth Amendment. The facts do not intimate nor has the State argued the search-incident-to-arrest exception applies. Initially, the record is not clear whether there was probable cause to justify an arrest for criminal trespass. See Iowa Code § 716.7(2)(b) (1997). The record was never adequately developed with regard to the manner in which Dollison requested his guests leave or whether they had sufficient time to exit the residence. Second, the officers were called to the scene not to forcibly eject Grant and her boyfriend, but to remove a weapon from the home. Dollison never requested the officers remove Grant from the apartment or charge her with criminal trespass, and the officers specifically stated there was nothing criminal about Grant's presence in the apartment. Third, we do not find that a search-first-justify-later approach whereby we hypothesize all the potential crimes a defendant could have been charged with justifies an invasive search. Finally, even if we were to suppose súch an exception was proper, a search incident to arrest is limited to the area within the accused’s immediate control. See State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). There is simply no record of Grant's precise location relative to her jacket at the time of the arrest. It would be mere speculation to assume her jacket was in an area within her immediate control.

      . We do not intimate the officers were incorrect for removing the occupants from the room or taking steps to insure their own safety. However, after securing the scene, the officers still have the responsibility to inquire as to the possessory interests of particular items easily attributable to the occupants.