author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2004 SD 33
    STATE of South Dakota, Plaintiff and Appellee, v. Lucas Jeffery WILSON, Defendant and Appellant.
    No. 22655.
    Supreme Court of South Dakota.
    Argued Oct. 8, 2003.
    Decided March 10, 2004.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, for plaintiff and appellee.
    Veronica L. Duffy of Duffy & Duffy, Rapid City, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Lucas Wilson (Wilson) was a passenger in a car that was stopped after a highway patrol officer noticed objects dangling from the rearview mirror and observed the vehicle crossing the fog line. Upon stopping the vehicle, the trooper became suspicious of drug use. The ensuing search of the vehicle revealed methamphetamine, marijuana, and various drug paraphernalia. Subsequently, the trooper placed Wilson under arrest. A grand jury indicted Wilson on four counts of various drug offenses, including possession of methamphetamine, ingesting a substance other than alcohol for purposes of becoming intoxicated, possession of marijuana less than two ounces, and possession of drug paraphernalia. After waiving the right to a jury trial, Wilson was convicted on all four counts. Wilson appeals the trial court’s judgment and argues that evidence seized from the vehicle should have been suppressed. For the reasons set forth below, we affirm the trial court’s judgment.

FACTS AND PROCEDURE

[¶ 2.] On the morning of February 16, 2002, Wilson was a passenger in a vehicle owned and driven by Jeremy Neff (Neff). At approximately 7:00 a.m., Trooper Ryan Mechaley (Mechaley) of the South Dakota Highway Patrol observed Neffs vehicle cross the fog line and noticed objects dangling from the vehicle’s rearview mirror. Mechaley then proceeded to stop the vehicle for these traffic violations. After obtaining identification from both Neff and Wilson, the trooper asked Neff to follow him back to his patrol car. Wilson remained in Neffs vehicle.

[¶ 8.] Once in the patrol car, Mechaley told Neff that he intended to write him a warning ticked for the traffic violations and that he would then “get [him] on down the road.” While Mechaley ran a check on Neffs and Wilson’s licenses, he engaged Neff in general conversation. In the approximately fifteen minute long conversation, Mechaley and Neff discussed Neffs employment, birth date, and each made observations about drug-related topics. Neff, however, became somewhat agitated when Mechaley asked him about methamphetamine use in the area, and he twice attempted to change the subject. During the conversation, Mechaley noticed Neffs pupils appeared to be “pinpoint,” a sign that, in the trooper’s experience, often indicated methamphetamine use. When asked, Neff denied any current drug use but admitted past methamphetamine use.

[¶ 4.] Based upon the conversation and the appearance of Neffs pupil’s, Mechaley became suspicious of drug use. He then asked for Neffs permission to search the vehicle. Neff responded he had received advice from an attorney in Idaho that he should not give consent to such a search. The trooper responded that this was “bad advice” and that “you’re in South Dakota now.” After Mechaley indicated he felt he had enough reasonable suspicion to call for a drug dog, Neff consented to the vehicle search.

[¶ 5.] Trooper Mechaley then directed Wilson to step out of the vehicle and told him to stand directly in front of his patrol car. Mechaley proceeded to question Wilson. During the questioning, the trooper’s voice was commanding and accusatory, and his questions assumed Wilson’s guilt. Despite the fact that Wilson was not free to leave during this questioning, the trooper failed to advise Wilson of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Subsequently, Wilson made several incriminating statements regarding drug use. In addition, Wilson appeared to make numerous uncontrollable head and arm movements during the questioning, symptoms which further suggested the use of methamphetamine.

[¶ 6.] Based on Neffs consent, Mecha-ley began a search of the vehicle. Within a short period of time, the trooper found a hypodermic needle cap between the floorboard and the door. Fearing that he may be injured by an uncovered needle, Mecha-ley asked Wilson to show him where any drugs were in the vehicle. Wilson proceeded to locate a sunglass case under the passenger seat. In the case, the trooper found syringes, methamphetamine, marijuana, and a marijuana pipe. Because Wilson indicated that the drugs were his, Mechaley placed Wilson under arrest and read him his Miranda rights. Subsequent tests indicated Wilson’s urine was positive for methamphetamine and marijuana.

[¶ 7.] A grand jury indicted Wilson on several drug-related charges. Before trial, Wilson made motions to suppress his statements and any evidence found in Neffs vehicle. The trial court found Wilson was subjected to custodial interrogation without being advised of his Miranda rights. Therefore, the trial court suppressed these statements, and the state does not appeal this ruling. The trial court ruled, however, that the evidence found in the vehicle should not be suppressed because Mechaley had reasonable suspicion to stop the vehicle and Wilson lacked standing to challenge whether or not Neffs consent was voluntarily given. Wilson waived the right to a jury trial. After the parties stipulated to a set of facts, the trial court found Wilson guilty of possession of methamphetamine, ingesting a substance other than alcohol for purposes of becoming intoxicated, possession of marijuana less than two ounces, and possession of drug paraphernalia. Wilson raises three issues for our review:

1. Where a vehicle has objects dangling from its rearview mirror and crosses the fog line, does an officer have a reasonable suspicion in order to justify a traffic stop.
2. Where an officer tells a driver at the beginning of a traffic stop that he will “get [him] on down the road” and then detains the driver after becoming suspicious of drug use, is the Fourth Amendment’s prohibition against unreasonable searches and seizures violated.
3. May a passenger in a vehicle challenge the validity of the driver’s consent to a vehicle search.

STANDARD OF REVIEW

[¶ 8.] We review motions to suppress founded on alleged constitutional violations under the de novo standard. State v. De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d 683, 685 (citing State v. Rechtenbach, 2002 SD 96, ¶ 6, 650 N.W.2d 290, 292 (citations omitted)). “[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603 (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). We will only reverse a trial court’s findings of fact if they are clearly erroneous. De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d at 685 (citing State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209). It is well settled that “[o]nce the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.” Hirning, 1999 SD 53, ¶ 8, 592 N.W.2d at 603 (citation omitted).

[¶ 9.] Statutory interpretation is also a question of law reviewed under the de novo standard. Steinberg v. State Dept. of Military & Veterans Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599 (citing Zoss v. Schaefers, 1999 SD 105, ¶6, 598 N.W.2d 550, 552 (citation omitted)). In construing a statute, we presume “that the legislature did not intend an absurd or unreasonable result” from the application of the statute. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611).

ANALYSIS AND DECISION

[¶ 10.] 1. Where a vehicle has objects dangling from its rearview mirror and crosses the fog line, does an officer have a reasonable suspicion in order to justify a traffic stop.

[¶ 11.] The Fourth Amendment to the United States Constitution and Article VI § 11 of the South Dakota Constitution protect the people from unreasonable searches and seizures by government officials. Generally, any seizure of personal property without a warrant is considered per se unreasonable. United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). The United States Supreme Court, however, has recognized the “narrow authority of police officers ... to make limited intrusions on an individuáis personal security based on less than probable cause.” Michigan v. Summers, 452 U.S. 692, 698, 101 S.Ct. 2587, 2591, 69 L.Ed.2d 340 (1981) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)). Brief, investigatory traffic stops fall within this exception. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). “An investigatory stop satisfies the Fourth Amendment if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’ ” De La Rosa, 2003 SD 18, ¶ 7, 657 N.W.2d at 686 (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911). See also State v. Ballard, 2000 SD 134, ¶ 12, 617 N.W.2d 837, 841 (requiring “reasonable, articulable suspicion that [a] person is involved in criminal activity unrelated to the traffic violation.”). If upon further investigation an officer develops probable cause to believe either the driver or a passenger has committed a crime, a warrantless arrest “is consistent with the Fourth Amendment.” Maryland v. Pringle, 540 U.S.-, --, 124 S.Ct. 795, 799, 157 L.Ed.2d 769 (2003). Searches based upon consent do not violate the Fourth Amendment so long as the consent was voluntary and not the product of coercion. United States v. Welerford, 356 F.3d 932, 935 (8thCir.2004) (quoting United States v. White, 42 F.3d 457, 459 (8thCir.1994)).

[¶ 12.] Wilson first challenges the constitutionality of the initial stop of Neffs vehicle. We have recognized that “[a] passenger in a vehicle has standing to challenge the stop of a vehicle because a stop is a seizure of all persons in the vehicle.” State v. Krebs, 504 N.W.2d 580, 584 (citing United States v. Erwin, 875 F.2d 268, 270 (10thCir.1989)); see WAYNE R. LA-FAYE, SEARCH AND SEIZURE § 11.3(e) (3d ed. 1996) (“If either the stopping of the car or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations.”).

[¶ 13.] In its findings of fact, the trial court found Mechaley stopped Neffs vehicle because it crossed the fog line and had objects dangling from its rearview mirror. Wilson disputes the presence of dangling objects in the car and argues that even if he crossed the fog line, he did not violate South Dakota law. Thus, according to Wilson, Mechaley lacked the requisite reasonable suspicion to stop the vehicle in the first place.

[¶ 14.] Wilson argues there is insufficient evidence to establish the presence of dangling objects in the vehicle. According to SDCL 32-15-6 “[i]t is a petty offense for any person to drive any vehicle upon a highway with any object or gadget dangling between the view of the driver and the windshield of the vehicle.” The trial court found that there were objects dangling from the vehicle’s rearview mirror, and in order for this Court to reverse this finding, the trial court must have been clearly erroneous. De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d at 685.

[¶ 15.] Wilson offers several reasons why the trial court was clearly erroneous in finding that there were objects dangling from the rearview mirror. No objects can be seen in the stop video, and the State never presented any objects into evidence. Wilson also believes Mechaley’s testimony was inconsistent regarding the nature of the dangling objects.

[¶ 16.] After reviewing the record, we believe Wilson has not established that the trial court was clearly erroneous on this issue. While it is true that no dangling objects can be distinctly seen in the stop video, due to the angle of the sun, almost nothing can be seen inside the vehicle in the video; therefore, we cannot say that the stop video suggests the trial court was clearly erroneous. When the Trooper initially stopped the vehicle he told both Neff and Wilson the reason for the stop was in part because of dangling objects in the back window. Neither Neff nor Wilson challenged the officer’s statement of the existence of the objects at the time of the stop. In addition, the trial court had the opportunity to evaluate Trooper Me-chaley’s testimony, and it chose to believe his version of events. As the Supreme Court has stated:

[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); see State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991) (recognizing that on issues of credibility, a trial court “was in the position to observe the witness testifying, and we give due regard to its superior position to judge credibility.”); see also Welerford, 356 F.3d at 936 (utilizing the clearly erroneous standard when reviewing a district court’s decision to credit a trooper’s version of a traffic stop). We have no reason to believe that Mechaley lied when he said he stopped the vehicle because it had dangling objects. Nor has Wilson pointed to some extrinsic evidence to contradict Mechaley’s testimony. In the absence of such a showing, we must conclude the trial court’s determination on this issue was not clearly erroneous. Because the trial court was not clearly erroneous in finding that there were dangling objects in the vehicle, the violation of SDCL 32-15-6 provided the trooper with reasonable suspicion to initiate a traffic stop. See State v. Chavez, 2003 SD 93, 668 N.W.2d 89; Hirning, 1999 SD 53, 592 N.W.2d 600; State v. Dreps, 1996 SD 142, 558 N.W.2d 339; State v. Shearer, 1996 SD 52, 548 N.W.2d 792; State v. Ramirez, 535 N.W.2d 847 (S.D.1995); Krebs, 504 N.W.2d 580.

[¶ 17.] 2. Where an officer tells a driver at the beginning of a traffic stop that he will “get you on down the road” and then detains the driver after becoming suspicious of drug use, is the Fourth Amendment’s prohibition against unreasonable searches and seizures violated.

[¶ 18.] The dangling objects in the vehicle provided Trooper Mechaley with reasonable suspicion to stop the vehicle. Once he stopped the vehicle, Mecha-ley was entitled “to conduct an investigation reasonably related in scope to the traffic violation, including the request for a driver’s license, registration, proof of insurance and even a computer check for outstanding warrants.” State v. Kenyon, 2002 SD 111, ¶ 16, 651 N.W.2d 269, 274. Wilson contends, however, that when the trooper said he would issue Neff a warning ticket and then “get you on down the road,” he was not entitled to any subsequent investigation under our holding in Ballard, 2000 SD 134, ¶ 17, 617 N.W.2d at 842 (citing United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999)).

[¶ 19.] In Ballard, a deputy sheriff observed a vehicle drive on the shoulder of a road and then cross the center line. Suspecting that the driver of the vehicle was intoxicated, the deputy stopped the vehicle. Once stopped, the driver of the vehicle, Ballard, explained that she had swerved because she was looking for something in her purse. At this time, the deputy did not smell any alcohol in the vehicle nor did he have any reason to suspect contraband in the car. The deputy then asked Ballard to accompany him to his patrol car, where he proceeded to run a license check and write up a warning ticket. While sitting in the patrol car, the deputy noticed that Ballard appeared to be “very fidgety” and her pupils looked constricted, behaviors that often indicated methamphetamine use in the deputy’s experience. Ballard, Id., ¶ 4. Nevertheless, the deputy issued the warning ticket to Ballard and told her she was “free to leave.” Id. After telling Ballard she was “free to leave,” the deputy asked if he could search her vehicle because he was suspicious of drug use. Id. Ballard refused the search. In response, the deputy detained the vehicle until a drug detection dog arrived. The dog alerted to the vehicle and a subsequent search of the vehicle yielded the presence of marijuana and drug paraphernalia. The officers then arrested Ballard and the two passengers in the vehicle.

[¶ 20.] The trial court denied Ballard’s motion to suppress, and she was subsequently found guilty of possession of marijuana and drug paraphernalia after a bench trial. We reversed the trial court’s denial of Ballard’s motion to suppress because the deputy’s “detention of Ballard after telling her she was free to leave was impermissible under the Fourth Amendment.” Id., ¶ 15. While we recognized Ballard’s actions afforded the deputy with reasonable suspicion to justify the initial traffic stop, once the traffic investigation was completed, the deputy was obligated to allow the driver to proceed without further detention unless he had additional reasonable suspicion to extend the stop. Id., ¶ 13. In addition, we held that “[a] refusal to give consent to search after the motorist is free to leave cannot give rise, of itself, to further suspicion and justification for a search.” Id., ¶ 17. Much of our opinion in Ballard was due to our reluctance to approve the manner in which the search was carried out:

[W]e are concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their un-coerced agreement to search their automobiles.

Id.

[¶ 21.] We believe the present case is clearly distinguishable from the situation in Ballard. In Ballard, the officer specifically told the driver that she was “free to go” after he had completed the permissible license check and observed the suspicious behavior. Id., ¶ 15. Ballard’s subsequent detention was impermissible because the officer did not gain a reasonable suspicion after telling Ballard that she was free to go. Id. In this case, Mechaley told Neff as a preliminary matter that he intended to issue a warning citation to Neff and then “get you on down the road.” Unlike Ballard, Neff was not advised that he was presently free to go. Furthermore, it is clear the trooper told Neff he would “get you on down the road” before completing a computerized license check and before he became suspicious of drug use. An officer telling a driver at the beginning of a stop that he will issue a warning ticket and then “get [him] on down the road” is simply not the same as giving a driver a ticket and then telling him he is free to leave. Thus, the issue turns on whether or not Mecha-ley had a reasonable suspicion to justify extending his detention of the Neff vehicle beyond his investigation for the original traffic stop. Id., ¶ 13. See State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470.

[¶ 22.] In order to extend a traffic stop, “[w]e require ‘a specific and artic-ulable suspicion of a violation.’ ” Ballard, 2000 SD 134, ¶ 13, 617 N.W.2d at 841 (quoting Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 14, 580 N.W.2d 606, 610) (citation omitted). Here, Mechaley became suspicious of drug use as a result of his fifteen minute conversation with Neff and the constricted appearance of Neffs pupils. In determining whether a law enforcement officer permissibly extends a traffic stop, we look at the evidence “as a totality and in light of the officer’s experience.” Id. (quoting United States v. Bloomfield, 40 F.3d 910, 915 (8thCir.1994); see Pringle, 540 U.S. at-, 124 S.Ct. at 800, 157 L.Ed.2d at -). Under this standard, we conclude Trooper Mechaley had a reasonable suspicion of drug use justifying his extended stop of Neffs vehicle. Because Mechaley developed his reasonable suspicion of drug use after telling Neff he would “get you on down the road,” the extended detention did not violate our holding in Ballard.

[¶ 23.] 3. May a passenger in a vehicle challenge the validity of the driver’s consent to a vehicle search.

[¶ 24.] Wilson also challenges whether Neffs consent to Mechaley’s request for a vehicle search was voluntarily given. The trial court, however, concluded Wilson lacked standing to challenge the validity of Neffs consent. Because we agree that Wilson does not have standing to challenge the nature of Neffs consent, we do not specifically address whether or not Neffs consent was voluntary.

[¶ 25.] As we have previously recognized, “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Krebs, 504 N.W.2d at 586 (quoting Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978) (citation omitted)). A passenger may challenge the consent to a vehicle search if he has “a legitimate expectation of privacy in the area searched.” Rakas, 439 U.S. at 148, 99 S.Ct. at 433, 58 L.Ed.2d at 404; see State v. Caffrey, 332 N.W.2d 269, 274 (S.D.1983). Thus, in order to challenge the consent to the search of Neffs vehicle, Wilson had the burden of showing that he had a legitimate expectation of privacy in Neffs vehicle. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980).

[¶ 26.] In Krebs, we utilized the following factors in determining whether a passenger had a legitimate expectation of privacy in a vehicle:

[A] legitimate presence in the area searched, possession or ownership of the area searched or the property seized, prior use of the area searched or ■ the property seized, ability to control or exclude others’ use of the property, and a subjective expectation of privacy.

504 N.W.2d at 587 (citing United States v. Carter, 854 F.2d 1102, 1105 (8thCir.1988)); see LAFAVE, supra at 170. We analyze these factors under the totality of the circumstances. Id. (citing United States v. Aguirre, 839 F.2d 854, 856-57 (1stCir.1988)).

[¶ 27.] Wilson, as a passenger, bore the burden of proving he had a legitimate expectation of privacy. Id., at 586 (citing Rawlings, 448 U.S. at 105, 100 S.Ct. at 2562, 65 L.Ed.2d at 641). After considering all of the factors we conclude that Wilson was merely a passenger without a legitimate expectation of privacy in Neffs vehicle.

[¶ 28.] Wilson neither owned the vehicle nor operated it at the time it was stopped for the traffic violations. Wilson did not control the keys to the vehicle or the registration. When the officer announced he intended to search the vehicle, Wilson, rather than claiming an expectation of privacy in any of its contents, denied “knowing of any knowledge of anything in the car.” However, after further conversation with the officer, and prior to any search, Wilson conceded there were drugs in the vehicle, although he did not specify who owned them. After the officer made the initial discovery of a needle cap, Wilson showed the officer the location of further drug paraphernalia and drugs in the car.

[¶ 29.] Wilson contends he had a legitimate expectation of privacy because he owned the sunglass case in which the drugs were found. Wilson also points out that the case was found underneath the seat in which he had been riding. Although it is a factor that we will consider, “[o]wnership of property seized is not determinative of a legitimate expectation of privacy.” Id., 587 (citing Rawlings, 448 U.S. at 105, 100 S.Ct. at 2562, 65 L.Ed.2d at 642). In addition, the fact that the evidence was discovered under Wilson’s seat is clearly not dispositive. See United States v. Elwood, 993 F.2d 1146, 1151-52 (5thCir.l993) (truck passenger without standing to object to search of the area under passenger seat); Rakas, 439 U.S. at 148, 99 S.Ct. at 433, 58 L.Ed.2d at 404; see also LAFAVE, supra at 174 (“Given the fact that in Rakas a justified expectation of privacy is deemed to be lacking ... as to an area closer to the passengers under the seat, it is doubtful there is such an expectation anywhere in the vehicle.”) (citations omitted).

[¶ 30.] The weight of Fourth Amendment authority strongly suggests Wilson may not challenge the search in this case, and he concedes as much when he argues in his reply brief that “states may adopt a standard for vehicle searches which affords greater protection to Constitutional rights than the United States Constitution.” Wilson points us to the case of Nebraska v. Stott, 503 N.W.2d 822, 243 Neb. 967 (1993) for the proposition such passenger standing should be automatically recognized under the South Dakota Constitution. Wilson declares that such recognition would avoid “unjust results.” Nebraska has apparently opted for a rule of automatic standing granted to all passengers in a motor vehicle:

[A]n occupant of an automobile has a legitimate expectation to be free of unreasonable governmental intrusion so as to give the occupant standing to challenge the stop as violative of his or her Fourth Amendment rights.

503 N.W.2d at 828 (quoting State v. Chavez, 240 Neb. 538, 543, 483 N.W.2d 122, 125 (1992)).

[¶ 31.] Such a blanket rule seems to us to be at odds with the more appropriate “legitimate expectation of privacy in an area search” doctrine of Krebs and Rakas. We cannot interpret the federal or state constitution to grant a blanket extension of standing to all who occupy a vehicle for whatever reason, be they invited guests, hitchhikers, cash paying patrons in a commercial vehicle, stowaways, or even car thieves.

[¶ 32.] Here, as in Krebs, Wilson cannot claim any possessory interest in the vehicle nor could he exclude others from the area searched. 504 N.W.2d at 587. In addition, Wilson has not established any prior use of the vehicle. Viewed under the totality of the circumstances, Wilson did not have a legitimate expectation of privacy in the area searched, and, therefore, he does not have standing to contest the nature of the driver’s consent. Id.

[¶ 33.] Affirmed.

[¶ 34.] KONENKAMP and ZINTER, Justices, concur.

[¶ 35.] SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 36.] I dissent. In making the blanket determination that Wilson lacked standing to challenge this search or seizure, the majority opinion improperly removes whatever Fourth Amendment protection remained after this Court’s decisions in cases such as State v. Chavez, 2003 SD 93, 668 N.W.2d 89, and State v. De La Rosa, 2003 SD 18, 657 N.W.2d 683. The majority opinion engages in analysis which serves little purpose but to once again put the goal of drug interdiction above the protections of our Federal and State Constitutions.

[¶ 37.] The question is not whether a passenger has “standing” to object to an illegal search, but whether Wilson had a legitimate expectation of privacy in the area searched and the property seized. In Rakas, the Court rejected the standing analysis of Jones and held instead that the question presented was to be considered under the rubric of the Fourth Amendment reasonable expectation analysis. In other words, the Court must consider whether the “proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas, 439 U.S. at 133, 99 S.Ct. at 425, 58 L.Ed.2d at 394. I submit that Wilson’s Fourth Amendment rights were infringed by both the illegal search under his seat and the seizure of his sunglass’ case.

[¶ 38.] The majority opinion correctly lists the factors the majority adopted in Krebs, but does not properly apply the factors to the facts. Among the considerations for this Court in determining whether Wilson had a legitimate expectation of privacy are whether he had:

1) a legitimate presence in the area searched;
2) possession or ownership of the area searched;
3) possession or ownership of the property seized;
4) prior use of the area searched;
5) prior use of the property seized;
6) ability to control or exclude others’ use of the property;
7) a subjective expectation of privacy.

The majority opinion provides mere lip service to these factors. Specifically, it ignores the facts that: 1) Wilson was legitimately in the vehicle; 2) he owned the property seized, asserted ownership of that property to the officer, and it was within an area under his exclusive control while he was riding in the car; 3) he had prior use of the property seized; 4) by simply locking his door or refusing to move his body, he had the ability to control or exclude others’ use of the sunglass’ case and the seat in which he sat; and 5) as discussed below, it must be conceded that all passengers in a vehicle have some subjective expectation of privacy in their belongings, especially if they have placed them under the seat, out of public view.

[¶ 39.] Most adults in South Dakota either ride in or drive a private vehicle on a daily basis. As the Supreme Court noted in Delaware v. Prouse, “[m]any people spend more hours each day traveling in cars than walking on the streets.” 440 U.S. 648, 662, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 663 (1979). The government actively encourages people to car pool, and many people commute distances up to an hour to work every day. Passengers and drivers carry briefcases, book bags, handbags, sunglass’ cases and other objects with them in the car wherever they go. Given the relatively small size of our state, more citizens choose to drive the distance between cities rather than fly when they go visiting or on vacations away from home. In all of these instances, people carry items with them that society considers private; everything from personal hygiene products to private papers. By its broad ruling and generalized reasoning, the majority opinion equates the average passenger’s privacy interests with “all who occupy a vehicle for whatever reason ... even car thieves.” Majority opinion ¶ 31.

[¶ 40.] There can be no question that the average person believes they have more privacy in an automobile than they would walking down the street. This is especially so when they take pains to conceal objects away from the public view, e.g. in a glove compartment or under their seat. Certainly the majority opinion would acknowledge that a person walking down the street holding a handbag has a reasonable expectation of privacy in that handbag. Today, the majority opinion would hold that if that person got into a car and put the handbag on the floor between her feet, she’d have little or no expectation of privacy in the handbag. If the person placed the handbag under her seat, she would unquestionably have no legitimate expectation of privacy under this decision.

[¶ 41.] The only difference between these two victims of police overreaching (the pedestrian and the passenger) is that one of them got into a vehicle. The majority opinion glosses over the key factors in Krebs, which indicate that a person can establish an expectation of privacy in the property that was seized. Based on the totality of circumstances, Wilson established that interest, and it should be protected. I urge the members of the Court to properly analyze the totality of the circumstances and refuse to adopt the holding of the majority opinion. However, if this is to be the law of this state, all occupants of vehicles in South Dakota should be bluntly warned that they lose their basic Fourth Amendment protections the moment they get into a vehicle. The consequences of this opinion will be far-reaching.

[¶ 42.] Under this majority opinion, people in South Dakota have little or no Fourth Amendment protection once they enter a vehicle. This is clearly demonstrated in the recent Fourth Amendment cases coming from this Court.

[¶ 43.] According to our Fourth Amendment jurisprudence in the last several years and including this case, it is now acceptable for a police officer to stop a vehicle on the flimsiest pretense. For ex-, ample, in the instant case, the police officer is presumed to have had reasonable suspicion to pull the vehicle over based on his sighting of a “dangling object” from the rear view mirror. Viewing the videotape, one can see the shadow of each occupant of the car and the shadow of the rear view mirror, but, in defiance of logic, one cannot see the dangling object or the shadow of the dangling object. Once the officer has the vehicle stopped, there seems no limit on the officer’s ability to search the vehicle. Although the officer is supposed to have probable cause to search or the driver’s consent, this is a legal fantasy. If the driver refuses to consent, as in this case, the officer merely threatens to bring a drug dog to the scene and holds the occupants there as long as necessary to bring a dog, or the officer makes clear that refusal to consent is a temporary bump in the road that can easily be rectified by making an arrest, or, as in this case, the officer coerces consent from the driver. This case goes even further in eroding individuals’ protection from government intrusion, holding that by placing oneself in the passenger seat of a vehicle, one loses any expectation of privacy.

[¶ 44.] It is often said that bad facts make bad law. I urge the Court not to allow the bad facts of this case to lead to bad law. Obviously, Wilson was in possession and under the influence of drugs. The State’s interest in drug interdiction is compelling, and suppressing drug evidence is difficult for courts and law enforcement. However, the Fourth Amendment does not provide:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, except in drug cases.

[¶ 45.] MEIERHENRY, Justice, joins this dissent.

      . Wilson does not contest the fact that the vehicle in which he was riding crossed the fog line. Rather, Wilson contends it was not a violation of South Dakota law when the vehicle crossed the fog line, and, therefore, the swerve did not provide the trooper with reasonable suspicion that supported a traffic stop. The trial court found that the swerve violated SDCL 32-26-1. The text of SDCL 32-26-1 provides as follows:
      Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow-moving vehicle as closely as possible to the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in §§ 32-26-26 to 32-26-39, inclusive. A violation of this section is a Class 2 misdemeanor.
      Wilson argues that nothing in the statute prohibits a vehicle from crossing the fog line to initiate a traffic stop. As we have already found the dangling object to be a legal basis for the stop of the vehicle, we need not address this alternative argument.

      . Although Wilson bore the burden of proof at the suppression hearing, he did not testify even though he was present. He further called no witnesses on his behalf. His counsel did cross-examine the sole witness, Trooper Mechaley. In its Findings of Fact and Conclusions of Law, the trial court found the Trooper to be “credible.”

      . The following scenarios run the spectrum from plausible to possible consequences of this decision:
      1. The majority opinion opens the door to flagrant police abuses against innocent citizens. Now, whenever police lack probable cause to search the belongings or person of one suspected of a crime, police need only wait until the person is a passenger in someone else's car. The officer may simply violate the Fourth Amendment rights of the innocent driver to initiate a search of the belongings of the passenger.
      2. The majority opinion ignores the legitimate expectations of the average vehicle passenger. The reason for this seems simple: the defendant was caught with drugs. In the interest of drug interdiction, this Court's jurisprudence allows substantial intrusions on the privacy rights of South Dakota's citizens. One need only consider an alternative factual scenario to recognize the danger of the majority opinion's conclusions. For example, imagine if an officer were to pull over two attorneys based on his visually unsupported belief that there was an object dangling from the rear view mirror. As the stop proceeds, the officer begins to believe that the vehicle contains contraband. He asks the driver for permission to search the car, the driver declines to consent, but the officer searches the car in spite of the driver’s objection. Under the passenger's seat is a file containing the attorney’s confidential work product from a client's case. The officer goes through the entire file in search of contraband. Based on the majority opinion’s determination, the passenger has no standing to object to the search and a subsequent § 1983 action would be too little too late to protect constitutional rights.
      3. Another scenario is more disturbing because it may happen more often. The driver of the stopped vehicle initially refuses to give consent, but the officer informs the driver that if he is more ’’helpful” things will "go easier” for him. The driver, knowing that his contraband is under the passenger's seat, consents to the search after insisting to the officer that he has no knowledge of any contraband in the car. Given that the contraband is within the reach and therefore under the control of the passenger, the officer arrests the unwitting passenger for possession of the contraband. The passenger has no standing to challenge the legality of the search, despite the fact that he has essentially been "set up” by the driver and officer.


source: Caselaw Access Project

author: SEVERSON, Presiding Circuit Judge. BASTIAN, Circuit Judge, RUSCH, Circuit Judge,

license: Public Domain

text:
    2004 SD 36
    STATE of South Dakota, Plaintiff and Appellee, v. William J. JANKLOW, Defendant and Appellant.
    No. 23162.
    Supreme Court of South Dakota.
    Considered on Briefs March 12, 2004.
    Decided March 15, 2004.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Edwin E. Evans and Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   SEVERSON, Presiding Circuit Judge.

[¶ 1J William J. Janklow (Janklow) appeals the trial court’s refusal to stay execution of his sentence and grant bail pending his appeal. Janklow filed a motion to suspend the rules pursuant to SDCL 15-26A-2 and requested that this Court hear this matter on an expedited basis. We granted the request and an expedited briefing schedule was approved in an order dated March 5, 2004. We find that the denial of bail was not an abuse of discretion. Therefore, we affirm.

FACTS AND PROCEDURE

[¶ 2.] Janklow was charged in Moody County with the offenses of failure to stop at a stop sign, speeding, reckless driving, and second degree manslaughter. The charges arose from an August 16, 2003 collision in which Randolph Scott was killed. Janklow entered a not guilty plea to the charges and requested a jury trial.

[113.] A jury trial commenced on December 1, 2003 in Flandreau, South Dakota. On December 8, 2003, the jury returned guilty verdicts on all four charges. A presentence investigation was ordered prior to the sentencing hearing held on January 22, 2004. Pursuant to SDCL 23A-27-13, the trial court granted a suspended imposition of sentence on the second degree manslaughter charge. As required by statute, Janklow consented to the suspended imposition of sentence.

[¶ 4.] Under the suspended imposition of sentence, the trial court placed Janklow on probation for a period of three years upon certain conditions, including that Janklow serve 100 days in the Minnehaha County Jail, pay a fine in the amount of $5,000, and that he not drive a motor vehicle during the term of probation. The trial court entered a judgment of conviction on the charges of reckless driving, speeding and failure to stop at a stop sign. As to the reckless driving charge, Janklow was ordered to serve thirty days in the Minnehaha County jail concurrent with the jail time ordered on the second degree manslaughter charge and pay a fine in the amount of $350. He was also ordered to pay a $200 fine on both the speeding charge and failure to stop at a stop sign charge.

[¶ 5.] Janklow reported to the Minne-haha County Jail on February 7, 2004 to begin serving his jail time. The trial court denied his motion for a new trial on February 18, 2004. After filing an appeal as to the reckless driving and second degree manslaughter convictions, Janklow moved the trial court to stay the execution of his sentence and release him on bail pending appeal. The trial court held a hearing on the motion on March 2, 2004. After making findings of fact on the record, the trial court denied the motion to stay execution of the sentence and for bail pending appeal. Janklow filed this appeal of the order denying his motion for stay and bail pending appeal. We granted expedited appeal proceedings in this matter.

STANDARD OF REVIEW

[¶ 6.] The denial of bail pending appeal is reviewed under an abuse of discretion standard. “ “We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Lakota Community Homes, Inc. v. Randall, 2004 SD 16, 9, 675 N.W.2d 437, 440 (quoting City of Sioux Falls v. Johnson, 2003 SD 115, 6, 670 N.W.2d 360, 362 (citations omitted)). In applying the abuse of discretion standard, ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’ State v. Aesoph, 2002 SD 71, 31, 647 N.W.2d 743, 754-55 (quoting State v. Fowler, 1996 SD 78, 12, 552 N.W.2d 92, 94-5 (citations omitted)).

ANALYSIS AND DECISION

[¶ 7.] “It is well settled that a state petitioner is without an absolute federal constitutional right to bail pending appeal after conviction.” Grooms v. Solem, 562 F.Supp. 512, 513 (D.S.D.1983) (citations omitted). However, South Dakota has a statute permitting bail pending appeal. SDCL 23A-43-16 provides:

On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected.

[¶ 8.] While SDCL 23A-43-16 expressly precludes a motion pursuant to SDCL 23A-43-14 to the circuit court judge for an amendment of conditions of release and an appeal pursuant to SDCL 23A-43-15 for amendment of conditions of release, an order denying bail pending appeal is an appealable order. See Grooms, 562 F.Supp. at 514; State v. Burgers, 1999 SD 140, 602 N.W.2d 277.

[¶ 9.] SDCL 23A-43-16 states that the court “may” release an individual on bail pending appeal. SDCL 23A-43-16 is a discretionary statute. Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281. Therefore, a denial of bail pending appeal is reviewed under the abuse of discretion standard with deference to the decision of the trial court judge. See Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281. However, when “a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably.” Grooms, 562 F.Supp. at 513 (citations omitted).

[¶ 10.] Although State v. Hickey, 269 N.W.2d 816, 818 (S.D.1978) was decided under the prior statute which granted both the trial court judge and a justice of the Supreme Court the power to grant bail pending appeal, it referred to US ex rel. Bad Heart Bull v. Parkinson, 381 F.Supp. 985 (D.S.D.1974) in outlining the procedure for handling applications for bail pending appeal. This Court stated:

We are of the opinion that such applications should originally be made and heard before the trial court. We are aware that during the course of the proceedings and trial, the trial court has heard evidence which would allow it to make an adequate inquiry to bring forth pertinent facts at a bail hearing. After such hearing, the trial court may set a reasonable bail pending appeal or deny such bail with findings of fact sufficient to pass the “constitutional muster” alluded to in the Bad Heart Bull decisions.
It will then be for this court to determine from the record made whether a reasonable bail has been set, whether the denial of bail is constitutionally permissible ....

Hickey, 269 N.W.2d at 818.

[¶ 11.] In Bad Heart Bull, 381 F.Supp. at 987, the federal district court stated:

In the opinion of this court, the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation in itself of the Fourteenth Amendment’s due process clause. As is stated in United States ex rel. Keating v. Bensinger, 322 F.Supp. 784, 787 (N.D.Ill):
When a state court denies bail authorized by the state legislature without providing any supporting reasons, the failure to indicate the motivating reasons for the denial of bail is in and of itself an arbitrary action that violates the Eighth and Fourteenth Amendments. Any other rule would effectively nullify the protection of those Amendments.

[¶ 12.] SDCL 23A-43-16 provides that the court “consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay” in determining whether to grant bail pending appeal.

[¶ 13.] While this case has generated a great deal of public attention, Junk-low’s status as a public figure does not change the standard of review under which we review the trial court judge’s decision. The same criteria must be applied. We review the trial court judge’s decision under an abuse of discretion standard.

[¶ 14.] At the hearing on lank-low’s motion for stay of execution and bail pending appeal, the trial court judge heard details from Janklow’s attorney on the pertinent factors favoring granting bail. As in Burgers, we may presume that the trial court judge was familiar with the file and the relevant facts. Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281. The trial court judge referred to factors found in SDCL 23A-43-4 and SDCL 23A-43-16. He made findings on the record at the time of his ruling regarding the factors he considered and his reasons for denying the motion. By his remarks, it is clear that he read the statutes and, therefore, considered the factors of each of them. Having presided over the trial, the trial court judge was in the best position to assess the weight of the evidence. In particular, the trial court judge commented on the nature and circumstances of the offense. The trial court judge also discussed the substantial weight of the evidence against the defendant. This case involves a serious felony in which a death occurred. The jury found Janklow guilty of the crimes charged. “Having been convicted, defendant is no longer clothed with the presumption of innocence.” State v. Means, 257 N.W.2d 595, 600 .(S.D.1977). As we have stated previously, there is no absolute right to bail pending appeal. The decision to grant bail pending appeal is discretionary. Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281. The statutes and relevant case law do not require that findings be made on each factor, nor is there a requirement to balance the competing factors. The trial court judge made findings on pertinent statutory factors and those findings support the decision to deny bail pending appeal. The mere fact that the trial court judge mentioned other considerations does not rise to the level of abuse of discretion.

[¶ 15.] Applying the abuse of discretion standard of review, we find no abuse of discretion by the. trial court judge in refusing to stay execution and grant bail pending the outcome of the underlying appeal.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, disqualified.

[¶ 18.] SEVERSON, Presiding Circuit Judge, and RUSCH, VON WALD, CALDWELL and BASTIAN, Circuit Judges, sitting by appointment.

[¶ 19.] CALDWELL, Circuit Judge, concurs.

[¶ 20.] BASTIAN, Circuit Judge, concurs specially.

[¶ 21.] RUSCH and VON WALD, Circuit Judges, dissent.

BASTIAN, Circuit Judge,

concurring specially.

[¶ 22JSDCL 23A-43-4 requires the trial court to consider several factors including “the nature and circumstances of the offense charged[.]” I specially concur to point out that the impact of a crime on the victims is inextricably connected to the nature and circumstances of the offense, particularly in post-conviction analysis. It was not improper for the trial court to consider the interests of the victim’s family in conjunction with this mandatory factor.

RUSCH, Circuit Judge,

dissenting.

[¶ 23.] I agree that the same criteria should be used to determine whether this defendant should be released pending appeal as would be applied to any other defendant. The South Dakota legislature has specifically enacted a statute authorizing bail pending appeal. SDCL 23A-43-16 provides:

On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment,' pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the ease of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected, (emphasis supplied).

When “a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably.” Grooms v. Solem, 562 F.Supp. 512, 513 (D.S.D.1983) (citations omitted). In U.S. ex rel. Bad Heart Bull v. Parkinson, 381 F.Supp. 985, 987 (D.S.D.1974), the federal district court stated:

In the opinion of this court, the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation in itself of the Fourteenth Amendment’s due process clause. As is stated in United States ex rel. Keating v. Bensinger, 322 F.Supp. 784, 787 (N.D.Ill):
When a state court denies bail authorized by the state legislature without providing any supporting reasons, the failure to indicate the motivating reasons for the denial of bail is in and of itself an arbitrary action that violates the Eighth and Fourteen Amendments. Any other rule would effectively nullify the protection of those Amendments.

[¶ 24.] In State v. Hickey, 269 N.W.2d 816, 818 (S.D.1978), the South Dakota Supreme Court referred to the Bad Heart Bull decision as establishing the necessary constitutional requirements for handling applications for bail pending appeal and that the Supreme Court would determine “from the record made whether a reasonable bail has been set, [and] whether the denial of bail is constitutionally permissible....”

[¶ 25.] In enacting SDCL 23A-43-16, the legislature required that, in determining whether to release a defendant while he is appealing, the court “shall” consider various factors. Since the legislature used the term “shall” rather than “may,” this is mandatory not optional. The criteria set forth in §§ 23A-43-16 and 23A-43-4 include the following:

1)The nature and circumstances of the offense charged;
2) The weight of the evidence against the defendant;
3) The defendant’s family ties, employment, financial resources, character and mental condition;
4) The length of his residence in the community;
5) His record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings; and
6) The risk that the defendant will flee or pose a danger to any person or to the community.
7) Whether the appeal is frivolous or taken for purposes of delay.

[¶ 26.] At the hearing on the motion for stay pending appeal on March 2, 2004, the trial judge considered factors 1) and 2), although his finding that the death was caused by recklessness, rather than a more culpable mental state, would be more in favor of release than against it. It is also clear that the nature and circumstances of the offense had not changed from the earlier time when he released the defendant on a personal recognizance bond. The judge also considered factor 7) in finding that the purpose of the appeal was delay but never made any finding that it was frivolous. He did not consider factors 3), 4), 5) and 6) at all. Most significantly, he made no findings, and there is no finding anywhere in the record, that the defendant presented any risk of flight or danger to the community. As a result, this case is distinguishable from State v. Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281, wherein the magistrate had made specific findings that the defendant posed a danger to others and was a flight risk.

[¶ 27.] In addition to his failure to consider at least four of the mandatory factors, the trial judge considered the following factors which are not proper factors for determining whether bond should be allowed pending appeal: 1) that this petition for bond was post conviction (however there was no discussion of this factor); 2) that a suspended imposition was given (there was no discussion of this); 3) that this may be affected by SDCL 23A-33-5 (again there was no discussion of how this affected the court’s decision); 4) that the issues on appeal were insubstantial and the chance of a successful appeal was unlikely; 5) that the interests of the family of the victim in closure and retribution would be affected; 6) that the interests of the public in retribution would be affected; and 7) that retribution needs to be swift and complete.

[¶ 28.] It is clear from the transcript of the motion hearing that the trial judge did not consider many of the factors which he was required to consider in setting bond and most importantly failed to consider at all whether the defendant posed a danger to others or was a flight risk. In addition, he considered, and appeared to give heavy weight to factors which were not included in the criteria which the legislature established in SDCL 23A-43-16 or 23A-43-4. Of these, the most troubling is his reliance upon the element of retribution. This is not a factor which the legislature has determined to be appropriate in determining whether a defendant should be released on bond. There is no importance in imposing retribution or, in other words punishment, before a conviction is even final.

[¶ 29.] A decision based upon an error of law is an abuse of discretion. State v. Ashbrook, 1998 SD 115, ¶6, 586 N.W.2d 503, 506. The decision of the trial judge denying bond was an abuse of discretion because he failed to consider factors which he is required to consider by SDCL 23A-43-16 and because he based his decision on other improper factors outside of the statute. This case should be remanded to the trial court to determine whether bond should be allowed pending appeal considering the criteria which the legislature established in SDCL 23A-43-16 and 23A-43-4.

[¶ 30.] YON WALD, Circuit Judge, joins this dissent.

      . Prior to July 1, 1979, either the trial court judge or a supreme court justice could grant bail pending appeal. See SDC 1960 Supp 34.4107 (codified as SDCL 23-51-13) (cited in State v. Olson, 82 S.D. 605, 152 N.W.2d 176, 177 (1967)). However, SDCL 23-51-13 was repealed by the South Dakota Legislature and replaced by SDCL 23A-43-16.

      . Decision Quashed by US ex rel. Bad Heart Butt v. Parkinson, 385 F.Supp. 1265 (D.S.D.1974) (affirming the denial of bail after rehearing before the trial court considering the appropriate factors).

      . SDCL 23A-43-4 provides:
      In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that he will flee or pose a danger to any person or to the community.

      . We note that the legislature uses "factor” and "criteria” interchangeably in the context of bail considerations.

      . In his appellate brief, Janklow argues that if his request for bail pending appeal is not granted, the underlying appeal of his convictions for second degree manslaughter and reckless driving "for all practical purposes” will be moot because he most likely will have served the 100-day jail sentence before a decision is made on the appeal. We disagree. There are other consequences of the suspended imposition of sentence in addition to serving 100 days in the jail. Under the terms of the suspended imposition of sentence, Jank-low is placed on probation for a period of 3 years, he is prohibited from driving an automobile during the period of probation and must pay a $5,000 fine. Janklow was convicted of a Class 4 felony which carries a maximum penalty of 10 years imprisonment in the state penitentiary and a $10,000 fine. In the event that he fails to comply with the terms of the suspended imposition of sentence, the trial court reserves jurisdiction to revoke the suspension - and sentence him without credit for the time spent on probation. An order suspending imposition of sentence is a final and appealable order. State v. Brassfield, 2000 SD 110, ¶ 8, 615 N.W.2d 628, 631. In Geelan v. State, 85 S.D. 346, 182 N.W.2d 311 (1970) the fact that the petitioner had served his sentence and been released from the penitentiary during the pendency of the appeal did not necessarily render the appeal moot. "Because of the adverse consequences that may flow from so recent a conviction, exclusive of the punishment inflicted thereon, he still may seek to have it nullified. It could disqualify him from engaging in certain business activities and seriously prejudice him in the affairs of his everyday life.” Id. 85 at 348, 182 N.W.2d at 312. Therefore, the appeal of Janklow’s conviction for second degree manslaughter would not necessarily be moot in the event that he serves the 100 days in jail prior to the decision on the appeal.

      . Although State v. Hickey was decided under the prior statute which granted both the trial judge .and a justice of the Supreme Court the power to grant bail pending appeal, its analysis of the procedure to be used is still good law. See Grooms, 562 F.Supp. at 514.


author: CARTER, Justice.

text:
    In the Matter of the ESTATE OF Blima FORDONSKI Beth El Jacob Synagogue and Marshall Berg, Appellees, v. Lubavitch of Iowa, Inc., Appellant.
    No. 02-2126.
    Supreme Court of Iowa.
    April 7, 2004.
    Michael D. Maxwell, West Des Moines, for appellant.
    Mark McCormick, Roger T. Stetson, Margaret C. Callahan, and Robert D. Sharp of Belin Lamson McCormick Zum-bach Flynn, P.C., for appellees.
   CARTER, Justice.

Lubavitch of Iowa, Inc., the beneficiary under the latest will of Blima Fordonski, deceased, appeals from a judgment setting that will aside based on a finding of improper execution. The appellees are Beth El Jacob Synagogue and Marshall Berg, beneficiaries under a prior will of the decedent. The district court granted summary judgment sustaining the objections of ap-pellees to the will on the ground that the witnesses’ signatures only appear on a self-proving affidavit attached to the will and not on the will itself.

After reviewing the record and considering the arguments presented, we conclude that the signatures of the witnesses appearing on a self-proving affidavit attached to the will may satisfy the requirements for witness signatures contained in Iowa Code section 633.279(1) (1999) if placed on that document contemporaneously with the testator requesting those affiants to be the witnesses to the execution of her will. Consequently, we reverse the judgment of the district court and remand the case to that court for further proceedings.

On July 18, 1995, Blima Fordonski, a widow without children, executed a will that left $10,000 to plaintiff Rabbi Marshall Berg, and the residue of her estate to plaintiff Beth El Jacob Synagogue. On May 24, 2000, she executed a later will that left her entire estate to defendant Lubav-itch of Iowa, Inc. The latter will contains Blima’s signature at the bottom of the first page and at the end of the remaining dispository provisions of the will contained on page two thereof. Attached to the will was a self-proving affidavit patterned after the language suggested in Iowa Code section 633.279(2). That affidavit contained the signatures of the testator and Arthur Kagin and Yossi Jacobson who are identified as witnesses to the will.

Blima died on February 24, 2002. The latest will was admitted to probate based on the self-proving affidavit. Plaintiffs, who are the beneficiaries of the earlier will, filed a petition to set aside the latest will on various grounds. The only ground involved in this appeal is their claim that the latest will was not properly witnessed. Other facts and circumstances not yet mentioned will be considered in our discussion of the legal issues presented.

I. Scope of Review.

We review rulings granting motions for summary judgment to determine errors at law. Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 202 (Iowa 2002); Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000). It is legal error to grant such a motion if the facts viewed in the light most favorable to the nonmoving party support a right to relief under applicable law. Grovijohn, 643 N.W.2d at 202; Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000).

II. Whether the Will Was Properly Witnessed.

In determining whether the will was properly witnessed, the district court viewed the self-proving affidavit as a document extraneous to the will itself. For that reason, the court concluded that the signatures of the affiants purporting to have witnessed the will were not signatures on the will. The proponents of the will urge that the signatures on the attached affidavit of those persons identified therein as witnesses to the execution of the will were sufficient to satisfy the formal requirements for execution. The statutory requirements for execution of a will are as follows:

1. Formal execution. All wills and codicils, except as provided in section 633.283, to be valid, must be in writing, signed by the testator, or by some person in the testator’s presence and by the testator’s express direction writing the testator’s name thereto, and declared by the testator to be the testator’s will, and witnessed, at the testator’s request, by two competent persons who signed as witnesses in the presence of the testator and in the presence of each other; provided, however, that the validity of the execution of any will or instrument which was executed prior to January 1, 1964, shall be determined by the law in effect immediately prior to said date.

Iowa Code § 633.279(1).

In seeking to uphold the district court’s ruling, the contestants point out that in keeping with the form of affidavit specified in section 633.279(2), the affiants are to be the testator and witnesses “whose names are signed to the attached or foregoing instrument.” They urge that this language indicates that the self-proving affidavit is intended to facilitate admission to probate of a will already properly executed and witnessed. They note that the aver-ments of the self-proving affidavit that was utilized in the present case incorrectly assume that a properly executed and witnessed will already existed.

In further aid of their argument, the contestants urge that at the time of the enactment of section 633.279(2) the legislature chose to adopt a former version of the Uniform Probate Code rather than the version that was current at that time. The version of the Uniform Probate Code that was current when the Iowa statute was enacted provided that signing a self-proving affidavit made a part of or attached to the will by the testator and the witnesses satisfies the requirements for execution of the will. The contestants argue that the enactment of a former version of the Uniform Probate Code that contemplates that execution of the will and signing of the self-proving affidavit are to be done in sequential stages serves to support the district court’s interpretation of the statute.

As case law support for their argument, the contestants rely on the decision in Boren v. Boren, 402 S.W.2d 728 (Tex.1966), which held that a self-proving affidavit is “not a part of the will but concern[ed] the matter of its proof only.” Boren, 402 S.W.2d at 729. The Texas court further stated in that regard that “[a] testamentary document to be self-proved, must first be a will.” Id.

We agree with the contention that the language of the affidavit as utilized in the present case and as proposed in section 633.279(2) contemplates that there will be witness signatures on the will separate from, and in addition to, the signatures of the affiants in the self-proving affidavit. However, all that can be made of that circumstance is that the affidavit attached to the will in the present case may not comport with the requirements for a self-proving affidavit. That does not negate the fact that the language of the affidavit inescapably identifies two of the affiants as persons who witnessed her signing of the attached document declared by her to be her last will.

It has been recognized that:

Under statutes which require a will to be attested, but prescribe no place for the signatures of the attesting witnesses, such signatures may properly be at any part of the will, provided that the place is not so unusual that an intent to attest the instrument is not clearly evident from the signature.... The signatures of the witnesses may appear on a different sheet than that on which the testator’s signature appears without affecting the validity of the instrument provided that the sheets are connected by some method of physical attachment at the time of attestation.

79 Am. Jur. 2d Wills § 325, at 501-02 (1975) (footnotes omitted). Because the witnesses’ signatures in the present ease appear on a document attached to the dispository provisions of the will, we deem that sufficient to satisfy the formalities of execution set forth in section 633.279(1).

Support for our conclusion on this point is found in our decision in In re Estate of Bybee, 179 Iowa 1089, 160 N.W. 900 (1917). In that case, a form of conveyance by warranty deed conditioned on the death of the grantor was found to be a testamentary disposition. One person signed the deed form as a witness to the grantor’s signature. In addition, the deed was notarized. We held that the signature of the notary public satisfied the requirement of a second witness signature to the testamentary disposition. In so holding, we observed:

It has been seen that the form and place of signing are not of the essence, nor do we know of any statute requirement that the witness must sign as witness — that is, put down his name and add witness, which [the notary] did not do.... [T]he essential fact [is] that [the notary] declares over his signature that he saw the paper signed; that he was present and received a statement from the testator that she was signing for the purposes expressed in what she signed.

Id. at 1094,160 N.W. at 901-02.

Also supporting our decision are the opinions of courts from other jurisdictions that have held signatures on self-proving affidavits attached to a will may satisfy the requirement for witness signatures. See In re Estate of Charry, 359 So.2d 544, 545 (Fla.Dist.Ct.App.1978) (though self-proving statute contemplated that a will first be signed by the testator and witnesses and then admitted to probate by a self-proving affidavit, will is nevertheless valid when signed by the testator but not witnessed except by self-proving affidavit); In re Estate of Petty, 227 Kan. 697, 608 P.2d 987, 992-93 (1980) (will was valid although two witnesses only signed the self-proving affidavit). We respectfully choose to follow the teachings of these cases rather than that of the Texas court in Boren.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We express no opinion concerning other challenges to the will left unresolved in the district court's grant of summary judgment.

      . Blima Fordonski is also known as Bluma Fordonski or Blima Fordonska. Her social security card shows her name as Blima For-donska.

      . The self-proving affidavit provides:
      We, the undersigned, Blima Fordonska a/k/a Bluma Fordorski, Arthur M. Kagin and Yossi Jacobson; the testator and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, being first duly sworn, declare to the undersigned authority that said instrument is the testator's will and that testator willingly signed and executed such instrument, or expressly directed another to sign the name in the presence of witnesses, as a free and voluntary act for the purposes therein expressed; that said witnesses, and each of them, declare to the undersigned authority that such will was executed and acknowledged by the testator as the testator’s will in their presence and that they, in the presence of each other, did subscribe their names thereto as attesting witnesses on the date of the date of such will; and that the testator, at the time of the execution of such instrument, was of full age and of sound mind and that the witnesses were sixteen years or older and otherwise competent to be witnesses.

      . The proponents of the will have sought to sustain its admission by another affidavit pertaining to its execution.

      . The self-proving affidavit does not state that the witnesses signed at the request of the testator, but the other affidavit (identified in footnote 4 above) offered in support of the will's admission to probate does so declare.


author: STREIT, Justice.

text:
    Shannan WILSON, Appellant, v. Michael RIBBENS, Appellee.
    No. 02-1632.
    Supreme Court of Iowa.
    April 7, 2004.
    Brian J. Muench, and Jerald L. Rauter-kus of Erickson & Sederstrom, Omaha, for appellant.
    Daniel B. Shuck of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellee.
   STREIT, Justice.

The judicial system has a keen interest in the prompt and effective administration of justice. In this case, justice was neither prompt nor effective. The plaintiff filed a petition alleging the defendant’s negligence caused her injuries in a car accident, but waited thirteen months to serve him. The plaintiff contends she did not serve the defendant because her attorney entered into an agreement with the defendant’s insurance adjuster to hold off service until a settlement could be reached. Absent a scheduling order, her petition gathered dust in the courthouse long after the statutory deadline for service passed.

After settlement negotiations apparently evaporated, service was made and the defendant’s attorney moved to dismiss for failure to effect timely service. The district court dismissed. The statute of limitations has passed.

We find the district court erred in failing to correctly recognize that an agreement not to effect timely service may constitute “good cause” for failing to effect service within the ninety-day period required by the rules of civil procedure. We reverse and remand for further proceedings.

I. Scope of Review

We review a motion to dismiss for failure to effect timely service of process for the correction of errors at law. Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000); Henry v. Shober, 566 N.W.2d 190, 191 (Iowa 1997). Where the district court makes findings of fact, those findings are binding upon us so long as they are supported by substantial evidence. Carroll, 610 N.W.2d at 857. We are not, however, bound by the district court’s legal conclusions or application thereof. Id.

Motions to dismiss are usually limited to the pleadings, and on such a motion a court generally ought not consider matters outside the pleadings. Id. at 856 (citing Estate of Dyer v. Krug, 533 N.W.2d 221, 223 (Iowa 1995)). Usually, “[s]um-mary judgment is the appropriate remedy when parties wish to rely on facts outside the pleadings.” Id.

In a limited number of circumstances, however, resort to matters outside the pleadings is permissible on a motion to dismiss. Id. As we explained in Carroll, matters outside the pleadings may be considered when

(1) those facts arise after the plaintiff has filed the petition, (2) the parties do not dispute those facts, and (3) the issues in the motion to dismiss do not concern the adequacy of the petition to state a claim for relief.

Id. Although the record before us contains an affidavit and two letters which the plaintiff filed in support of her resistance to the motion to dismiss, our analysis is hampered by the dearth of factual findings in the record: endemic in a ruling on a motion to dismiss in this context, the defendant has not filed an answer, and the district court’s “Statement of the Facts” is mostly a summary of the plaintiffs claims.

II. Prior Proceedings

On July 30, 2001, Shannan Wilson filed a lawsuit in the district court for Sioux County, Iowa, alleging she suffered injuries on August 1, 1999, in a car accident as result of Michael Ribbens’ negligence. Shortly before filing the lawsuit, Wilson’s attorney, Jerald Rauterkus, sent a letter to Jim Edwards, a claims adjuster for Allied Insurance. On July 27, 2001, Rauterkus wrote:

Dear Mr. Edwards:
Enclosed is a copy of the lawsuit that was filed on behalf of Ms. Wilson.
Pursuant to our agreement, I will not have your insured served with this suit; rather, we will delay serving process in the hopes that we can reach a settlement in this matter.
My client is continuing to treat with Dr. Franco. As soon as I have more definite information from him, I will provide it to you along with a demand. Please direct all questions on this matter to my office.
Sincerely,
Jerald L. Rauterkus [signed]

Approximately ten days later, Edwards responded in a letter:

Dear Jerald:
I have received your letter of representation and suit papers in regards to the injuries sustained to your client, Shannon [sic] Wilson. Per your letter, you are holding off serving the suit papers to my insured to see if we can settle this. As we had previously discussed on the phone, there appears to be quite a bit of information that I do not have in regards to your client’s treatment and injuries. Please obtain copies of all medical bills and reports and forward to me for my review. Then we can discuss the settlement of this claim for your client.
If there are any further questions, please feel free to call me....
Sincerely,
Jim Edwards [unsigned]

In an affidavit later filed with the district court, Rauterkus swore Edwards made inquiries every sixty to ninety days; in turn, Rauterkus provided Edwards with updated medical information when it was available. A final medical report was finished on May 29, 2002, and Rauterkus forwarded a copy to Edwards. Settlement negotiations broke down, however, and Rauterkus served Ribbens on July 22, 2002.

Pursuant to Iowa Rule of Civil Procedure 1.302(6) (2002), on July 25, 2002, Ribbens’ attorney moved to dismiss for failure to serve in a timely manner. The motion pointed out Wilson had not served Ribbens within ninety days, as required by the rule.

Wilson alleged there was “good cause” for the delay, and the district court ought not dismiss the case. Wilson also claimed the doctrine of promissory estoppel prohibited Ribbens from seeking a dismissal for lack of timely service. To buttress these arguments, in an affidavit Wilson’s counsel stated Edwards had represented he had the authority to settle on Ribbens’ behalf, and that Edwards had previously settled Wilson’s husband’s claim arising out of the same car accident.

The district court dismissed. The court, relying upon our decision in Henry v. Shober, 566 N.W.2d 190 (Iowa 1997), held there was no good cause for the delay. The court also raised, sua sponte, another issue: whether rule 1.302 gives the court discretion to extend the timeframe for process even absent good cause. In spite of the fact other courts have exercised discretion under similarly-worded rules absent good cause, the district court refused to do so because we had not yet determined whether our rule permitted it. See generally 4B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 365 (2002) [hereinafter Wright & Miller]. The district court did not rule on Wilson’s estoppel argument.

On appeal, Wilson again asserts there was good cause for her delay in service. Taking a cue from the district court, Wilson also contends that, even if we should decide there was not good cause for the delay in service, Iowa Rule of Civil Procedure 1.302 gives the court discretion to grant an extension. Wilson claims the court erred because it failed to exercise this discretion. Ribbens, in turn, maintains Wilson should not be allowed to raise the discretion issue because principles of eiTor preservation forbid an appellate court from entertaining an argument not raised in the district court. In the alternative, Ribbens argues the court does not have such discretion.

Wilson also renews her claim Ribbens is estopped from seeking dismissal because of the parties’ agreement. On appeal, however, Wilson’s estoppel argument has evolved to incorporate two separate analy-ses: Wilson now alleges both promissoiy and equitable estoppel, although Wilson’s equitable estoppel argument was not presented to the trial court.

III. Merits

A civil action is commenced when a petition is filed in the district court. Iowa R. Civ. P. 1.301(1) (2002). The plaintiff must also serve the defendant with notice the action was filed. See Iowa R. Civ. P. 1.302. “An original notice is the formal writing, issued by authority of law, for the purpose of bringing defendants into court to answer plaintiffs demands in a civil action.” Jacobson v. Leap, 249 Iowa 1036, 1040, 88 N.W.2d 919, 921 (1958). Our rules of civil procedure expressly require plaintiffs to effect service within ninety days after the filing of the petition, or risk dismissal. Iowa R. Civ. P. 1.302; see Meier v. Senecaut III, 641 N.W.2d 532, 541 (Iowa 2002) (explaining recent amendment to rule pertaining to service). Iowa’s service rule reads as follows:

If service of the original notice is not made upon the defendant ... within 90 days after filing the petition, the court ... shall dismiss the action without prejudice ... or direct an alternate time or manner of service. If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.

Iowa R. Civ. P. 1.302.

We begin our analysis with the recognition the Iowa Rules of Civil Procedure “are to be liberally construed for the purpose of promoting the speedy determination of litigation upon its merits.... ” Krueger v. Lynch, 242 Iowa 772, 779, 48 N.W.2d 266, 270 (1951).

We cannot, however, ignore a clear statutory requirement to achieve what appears to be the best result in a particular case. Such action almost always makes bad law.... “The so-called technicalities of the law are not always what they seem. When they establish an orderly process of procedure, they serve a definite purpose and are more than technical; they have substance, in that they lay down definite rules which are essential in court proceedings so that those involved may know what may and may not be done, and confusion, even chaos, may be avoided. They are necessary; without them litigants would be adrift without rudder or compass.”

Krebs v. Town of Manson, 256 Iowa 957, 963, 129 N.W.2d 744, 748 (1964) (quoting Esterdahl v. Wilson, 252 Iowa 1199, 1208, 110 N.W.2d 241, 246 (1961)). The present rule clearly requires a court to grant an extension to the ninety-day requirement on a showing of good cause. Iowa R. Civ. P. 1.302 (“If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.” (Emphasis added.))

What is “good cause”? In interpreting “good cause,” we have looked to the decisions of other courts construing statutes similar to the Iowa rule, including federal courts interpreting Federal Rule of Civil Procedure 4(m). See, e.g., Henry, 566 N.W.2d at 192-93; Turnbull v. Horan, 522 N.W.2d 860, 861 (Iowa Ct.App.1994) (when construing state statutes patterned after federal ones, the decisions of federal courts interpreting those federal statutes are persuasive but not conclusive); cf. Fed.R.Civ.P. 4(m) (imposing similar 120-day rule for service). In particular, we have stated “good cause” means

[t]he plaintiff must have taken some affirmative action to effectuate service of process upon the defendant or have been prohibited, through no fault of his [or her] own, from taking such an affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Moreover, intentional nonservice in order to delay the development of a civil action or to allow time for additional information to be gathered prior to “activating” the lawsuit has been held to fall short of [good cause].

Henry, 566 N.W.2d at 192-93 (quoting Vincent v. Reynolds Mem’l Hosp., Inc., 141 F.R.D. 436, 437-38 (N.DW.Va.1992)). Confirming this interpretation of good cause, we also now find

[g]ood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances....

Wright & Miller at 342. Our recent cases reflect these principles. See, e.g., Meier, 641 N.W.2d at 542-43 (while confusion over the identity of the defendant could support some delay, there was no “good cause” where, once this confusion was resolved, plaintiff only attempted to serve the defendant at his residence during the work-day). Even before the rule was amended to mandate an extension for “good cause,” however, we have long required plaintiffs to justify certain delays in service. See, e.g., Mokhtarian v. GTE Midwest Inc., 578 N.W.2d 666, 669 (Iowa 1998) (An attorney’s “lack of knowledge, misunderstanding or ignorance of our rules of civil procedure,” as well as the fact that defendant may have known about the filing of the lawsuit, do not justify a seven-month delay in service.). We recently indicated that we have equated “good cause” with the “justification” standard used in pre-amendment cases. Carroll, 610 N.W.2d at 858.

The district court, relying upon Henry, held Wilson failed to show “good cause” for the delay in service. In Henry, the plaintiffs filed their petition before the expiration of the statute of limitations, but did not serve the defendant for another 169 days, a period of time in which the statute of limitations passed. 566 N.W.2d at 191. The plaintiffs alleged the delay was justified because of on-going settlement negotiations with the defendant’s insurance company. Id. We disagreed, and held “settlement negotiations, even if done in good faith, do not constitute adequate justification or good cause for delaying service.” Id. at 193 (emphasis added).

In dicta, however, we wrote:

If the parties wish to continue settlement discussions beyond the limitations period, the plaintiff should secure a statute of limitations extension, in writing, from the defendant and the defendant’s insurer.

Id. The district court distinguished the case at bar from our dicta, and dismissed. The court pointed out Wilson only claimed (1) Wilson and Ribbens’ insurance adjuster (and not Ribbens himself) entered into an agreement not to serve Ribbens, and (2) Wilson only secured an agreement not to effect timely service, and not a statute of limitations extension.

Henry makes clear good-faith settlement negotiations standing alone do not constitute good cause for delays in service beyond the ninety-day limit. See Id. Henry is consistent with the decisions of a number of other courts, federal and state, applying Federal Rule of Civil Procedure 4(m) or similar state rules. See, e.g., Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 302 (7th Cir.1991); Healthcare Compare Corp., v. Super Solutions Corp., 151 F.R.D. 114, 115-16 (D.Minn.1993); Leonard v. Stuart-James Co., 742 F.Supp. 653, 662 (N.D.Ga.1990); Davis-Wilson v. Hilton Hotels, Corp., 106 F.R.D. 505, 509 (E.D.La.1985); Martin v. Hoblit, 133 Idaho 372, 987 P.2d 284, 288-89 (Idaho 1999); Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186-87 (Miss.2002); State ex rel. Charleston Area Med. Ctr., Inc. v. Kaufman, 197 W.Va. 282, 475 S.E.2d 374, 380 (W.Va.1996).

Some of these same courts, however, have indicated there may be good cause for delay if the parties had entered into an agreement to extend the service period. See Henry, 566 N.W.2d at 193; Martin, 987 P.2d at 288 (pointing out “there had been no agreement by [the defendant’s] insurer to waive the time limits found in [the rule]” nor any evidence the defendant or his insurance company “enticed the [plaintiffs] to forego service or led their attorney to believe [the defendant] would not assert his rights under [the rule]”). Similarly, one lower federal court found good cause where the plaintiff, pursing good-faith settlement negotiations, did not effect timely service at the express request of the defendant’s insurance carrier. Gambino v. Village of Oakbrook, 164 F.R.D. 271, 275 (M.D.Fla.1995).

While we remain highly skeptical of the utility of agreements delaying service or extending the statute of limitations in pending litigation in the hope of settlement, in light of the foregoing authority we hold such agreements may constitute “good cause” under Iowa Rule of Civil Procedure 1.302, and reverse. Unlike Henry, in this case the plaintiff alleges her failure to serve the defendant is the direct result of an agreement with the defendant’s insurance adjuster. This alleged agreement, it is contended, is coupled with the adjuster’s periodic requests for medical information. When juxtaposed with Ribbens’ subsequent motion to dismiss, his insurance adjuster’s prior conduct, if true, would be highly misleading, and an understandable mitigating circumstance in Wilson’s favor. See Wright. & Miller at 342. Such a failure to serve would not be the result of “[i]nadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service .... ” Henry, 566 N.W.2d at 192-93 (citations omitted).

In reaching this conclusion, we reject Ribbens’ contention that “good cause” should be limited only to agreements to extend the statute of limitations, and does not contemplate agreements to extend time for service. The rule does not differentiate. Our suggestion in Henry to obtain written extensions of the statute of limitations is not the standard for our analysis under the rule; rather, it is sound advice for parties wishing to delay service without risking dismissal. Although a factor in determining good cause for delay, we reject Ribbens’ claim that any alleged agreement must be signed by both the defendant and defendant’s insurer. See Gambino, 164 F.R.D. at 275 (permitting recovery where no evidence defendant was prejudiced).

Our decision today accords with long established legal principles. Before the service rule was amended to require an extension upon a showing of good cause, to prevent similar injustices we have long applied the doctrine of estoppel to pre-trial rules regarding the limitation of actions. See, e.g., Weitz’ Sons v. United States Fid. & Guar. Co., 206 Iowa 1025, 1033-35, 219 N.W. 411, 415 (1928) (defendant in counterclaim estopped from pleading the statute of limitations where an agreement claim should await the outcome of another case); Holman v. Omaha & Council Bluffs Ry. & Bridge Co., 117 Iowa 268, 273, 90 N.W. 833, 834 (1902) (railroad estopped from asserting a statute of limitations defense after one of its directors entered into settlement negotiations with the plaintiff and orally promised not to plead the statute of limitations if she delayed filing her suit). We have acknowledged the applicability of this doctrine in the service of process context. See Krebs, 256 Iowa at 962, 129 N.W.2d at 747 (in upholding determination service was invalid, nonetheless noting that “[tjhere is however no claim or proof of conduct on the part of either defendant which might constitute a waiver or estoppel”); see also DeWall v. Prentice, 224 N.W.2d 428, 430 (Iowa 1974) (“A statute cannot stand in the way of waiver or equitable estoppel when the facts demand their application in the interest of justice and right.” (quoting Kallock v. Elward, 118 Me. 346, 108 A. 256, 258 (Me.1919))).

Because the district court held an agreement not to effect timely service cannot constitute “good cause” under the statute, we find an error at law, and reverse. Given the dearth of factual findings in the record, including the lack of a finding of an agreement, we remand for further proceedings. On remand, the district court shall make factual findings and reexamine its judgment in light of this opinion. Given our decision on this issue, we decline to reach the parties’ other arguments regarding estoppel and discretion. We think the factual grounds upon which such a decision would need to be based or the need for such a decision in this case are too speculative at this time. See In re Marriage of Neff, 675 N.W.2d 573, 578 (Iowa 2004); cf. State ex rel. Miller v. Hydro Mag Ltd., 379 N.W.2d 911, 913 (Iowa 1986) (in action for adjudication of law points, declining to rule on “speculative and abstract legal questions which may become moot by the time the facts are finally determined”).

IV. The Remedy: Scheduling Orders and Conferences

We caution that nothing in this opinion should be construed as an endorsement of the practices engaged in by the parties. In practice, effective case management by our court administrators should preclude cases such as these from arising. As indicated at the outset of this opinion, the court system has a keen interest, notwithstanding the wishes of the parties, to keep the wheels of justice in motion:

[W]hen it comes to courthouse filings, it is necessary to draw a line between bringing a suit and merely filing a petition in order to delay deciding whether to do so. It is not appropriate to expect judicial process to wait ... while a plaintiff decides.

Alvarez v. Meadow Lane Mall Ltd. Pship., 560 N.W.2d 588, 591 (Iowa 1997) (emphasis added). Trials should be scheduled shortly after the petition is filed, and parties should be required to move litigation forward. Iowa’s service-of-proeess rule was crafted with this interest in mind: “[n]inety days was chosen in order that service would be perfected prior to the issuance of scheduling orders by most courts.” Iowa R. Civ. P. 1.302, comment. Here, there is no evidence in the district court file of a scheduling order, which we would expect to find. See id.; id. 1.602 (providing effective tools for pretrial management, including scheduling orders and conferences, which carry out several laudable goals, including “[ejxpediting the disposition of the action,” “[ejstablishing early and continuing control so that the case will not be protracted because of lack of management,” “[discouraging wasteful pretrial practices,” “[ijmproving the quality of the trial through more thorough preparation,” and “[facilitating the settlement of the case”); Iowa Ct. R. 23.5, Form 1 (contemplating, in Iowa time standards for case processing, a “120 Day Notice of Civil Trial Setting Conference”). Because there was no scheduling order in this case, service did not become an issue for more than a year after the petition was filed- — nothing happened in the file between the petition and service a year later.

Trial scheduling customs vary among the eight judicial districts. It is a better practice to have the district court administrator or judge setting a trial scheduling conference approximately ninety to one hundred twenty days after the filing of the petition, even if it means only the plaintiff attends. Failing this, at the very least the district court should sua sponte direct the plaintiffs to expedite matters or face dismissal. Iowa R. Civ. P. 1.302 (“If service ... is not made ... within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice ... or direct an alternate time or manner of service.”). In any event, private agreements not to effect service should not be permitted to delay such matters for an extended length of time; at some point early in the process, the court should take hold of the case and move matters along. To do otherwise permits cases to sit in the system growing whiskers, an unnecessary and most undesirable result.

V. Conclusion

We find the district court erred in failing to recognize that an agreement not to effect timely service may constitute “good cause” for not effecting service within the ninety-day period required by the rules of civil procedure. We therefore reverse and remand for further proceedings. Our decision, however, should not be understood as a retreat from our longstanding desire for the prompt and effective administration of justice; diligent court administration should obviate the need for courts to rule in this area.

REVERSED AND REMANDED.

      . During the pendency of this appeal, the rule was renumbered to subsection 1.302(5). To avoid confusion, throughout this opinion we simply refer to rule 1.302.

      . This is not to say that the trial scheduling process must be rigid and inflexible; after considering ail the factors relevant to setting cases for trial, a court may adapt the trial scheduling process to fit the needs of a particular case.