author: PER CURIAM.

text:
    2001 SD 114
    The PEOPLE of the State of South Dakota in the Interest of H.O., Minor Child, And Concerning C.O. and J.O., Respondents.
    No. 21842.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 9, 2001.
    Decided Aug. 29, 2001.
    Mark Barnett, Attorney General, Roxanne M. Johnson, Assistant Attorney General, Pierre, Attorneys for appellant State of South Dakota.
    Rory King of Siegel, Barnett & Shutz, Aberdeen, Attorneys for appellees B.W. and K.W.
   PER CURIAM.

[¶ 1.] The State appeals an order, entered over the objection of the Department of Social Services, that allowed a mother and father who had abused and neglected their child to both voluntarily terminate their parental rights and transfer those rights to the child’s aunt and uncle for the purpose of adoption. Because SDCL ch. 26-8A mandates the procedures to be followed in abuse and neglect actions, we vacate the trial court’s order and remand.

FACTS AND PROCEDURE

[¶2.] H.O. was born December 29, 1998, weighing 7 pounds, 6 ounces. Her parents received in-home services in basic parenting skills from the Department of Social Services (DSS) and other service providers. H.O. failed to gain weight and the parents reported she had difficulty feeding and “spit up a lot.” She was hospitalized on February 12, 1999, and diagnosed as a failure to thrive child. She gained some weight in the hospital, where it was discovered she did not have a gag reflex and was too weak to suck. She was also aspirating small amounts of fluid into her lungs.

[¶ 3.] In March, a gastrostomy feeding tube was surgically inserted into her stomach. Despite training in the specialized feeding techniques she now required, her parents were unable or unwilling to adequately care for her. H.O. failed to improve and her parents began refusing to allow service providers into their home. H.O. was removed from her parents’ home on April 9, 1999, and placed in foster care. At age 4 months, she weighed 9 pounds, 9.5 ounces. She began gaining weight while in foster care where she also received physical, occupational and speech therapies. She remained underweight for her age and exhibited developmental delay, requiring continuing evaluation.

[¶4.] DSS filed an abuse and neglect petition on October 21, 1999. The parents admitted the allegations in the petition at a hearing on March 14, 2000, and the trial court adjudged H.O. to be an abused and neglected child. The court ordered continued custody with DSS and reunification efforts to be made with the family. The parents obtained psychological evaluations and counseling. The record shows that the Mother, with an I.Q. in the “mildly mentally retarded range,” lacks the functional capability to care for H.O. Although her love for her child was apparent, it was recommended that she not care for her unsupervised. The Father works outside the home and believes that childcare is the mother’s responsibility. He was found to be unwilling to care for H.O. Another concern was the Father’s admitted sexual abuse of a six-year old niece twenty years earlier, which had been kept a family secret.

[¶ 5.] A final dispositional hearing was held on January 9, 2001. On this date, the parents petitioned to voluntarily terminate their parental rights and requested that the trial court place H.O. with her aunt and uncle, the Father’s sister and her husband, in Colorado. The couple received a favorable evaluation from a home study performed by the Colorado DSS in cooperation with the South Dakota DSS. They indicated their intent to adopt H.O. The abuse and neglect action was left pending while the trial court considered the petition for voluntary termination and the parents’ desire to transfer their parental rights.

[¶ 6.] On January 19, 2001, the trial court entered an order terminating the Mother’s and Father’s parental rights to H.O. and transferring those rights to her aunt and uncle, authorizing their consent to adopt H.O. without further notice to the Mother and Father “or any other person having such parental rights or interest in said child.” The court ordered a transition period not to exceed three months.

[¶ 7.] State appeals, raising the following issues:

Whether the trial court circumvented SDCL 26-8A-26 and -27 by accepting the voluntary termination of parental rights while an abuse and neglect action was pending.
Whether the acceptance of voluntary termination and transfer of parental rights constituted a conditional termination not permitted under South Dakota law.
Whether the trial court erred by dismissing the parents and their attorneys from the proceeding while the abuse and neglect action was left pending.

ANALYSIS AND DECISION

[¶ 8.] Terminations of parental rights are strictly governed by statute in South Dakota. Voluntary terminations, when no abuse or neglect of the child has been alleged, proceed under SDCL ch. 25-5A. SDCL ch. 26-8A governs abuse and neglect proceedings and mandates that following a termination of parental rights, custody of the child vests with DSS for the purposes of adoptive placement. SDCL 26-8A-27; In re J.H., 1999 SD 36, 590 N.W.2d 473; see also In re Z.Z., 494 N.W.2d 608 (S.D.1992). This is not a directive trial courts may ignore. J.H., 1999 SD 36 at ¶ 31, 590 N.W.2d at 479. DSS’s role in adoptive placement cannot be circumvented by parents filing a petition to voluntarily terminate their parental rights to effect a private adoption, after their child has been adjudged abused and neglected.

[¶ 9.] When there are allegations, and in this case an adjudication, of abuse and neglect, the State, in its role of parens patriae, steps in to protect the child. SDCL 26-8A-1; In re N.J.W., 273 N.W.2d 134, 137 (S.D.1978) (“The State, as parens patriae, takes a necessarily strong interest in the care and treatment of every child within its borders.”) The Legislature has identified DSS as uniquely qualified to act for the State in this role. SDCL 26-8A-8, -9. The trial court usurped this role when it allowed the parents to evade the abuse and neglect proceeding and addressed their petition for voluntary termination in favor of the aunt and uncle. See In re 368 N.W.2d 602 (S.D.1985), reh’g granted, 379 N.W.2d 816 (S.D.1985) (trial court dismissed abuse and neglect action to consider petition for voluntary termination of parental rights filed at the initial hearing).

[¶ 10.] This .is not simply a “procedural defect.” SDCL ch. 26-8A exists for the protection of the abused and neglected child, not the convenience of the parents, the attorneys, or the trial court. SDCL 25-5A-21, applying to voluntary terminations, provides that the chapter “shall not be treated or construed as exclusive of any other remedy authorized by law but as cumulative merely.” The court lacked statutory authority to consider the petition for voluntary termination exclusively while abandoning the abuse and neglect action.

[¶ 11.] We need not address the State’s remaining issues to decide this appeal. We vacate the order and remand for proceedings not inconsistent with this opinion.

[¶ 12.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . The State asserts that after its notice of appeal was filed, the trial court permitted H.O. to be removed from South Dakota on March 31, 2001 and transferred to Colorado without further involvement by DSS.

      . We have previously held the voluntary termination of parental rights provisions of SDCL ch. 25-5A are to be met with strict compliance. In re T.M.B., 416 N.W.2d 260, 262 (1987); In re I.M.I., supra. We can hold no less where termination is the result of an abuse and neglect proceeding that involves the same fundamental right to parent a child.


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice AMUNDSON, Justice

license: Public Domain

text:
    2001 SD 116
    STATE of South Dakota, Plaintiff and Appellant, v. Daron R. BUNGER, Defendant and Appellee.
    No. 21650.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided Aug. 29, 2001.
    Scott A. Abdallah, Lincoln County State’s Attorney, Thomas R. Wollman, Deputy State’s Attorney, Canton, SD, Attorneys for plaintiff and appellant.
    William Golden, Sioux Falls, SD, Attorney for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] The defendant is awaiting trial on multiple charges of sexual contact with children. A brassiere belonging to one of the alleged victims was seized from the defendant’s bedroom. On the defendant’s motion, the circuit court suppressed this evidence, finding it both irrelevant and prejudicial. We granted the State’s request for intermediate appeal and now reverse the suppression order. We conclude that this evidence is relevant to the defendant’s purported sexual contact with the child, and its probative value is not substantially outweighed by the danger of unfair prejudice.

Background

[¶ 2.] Daron Bunger, the defendant, stands accused of fondling seven different girls between the ages of 8 and 13, from approximately January 1, 1998 until his arrest in March 2000. He was charged by indictment with seven counts of sexual contact with a child under the age of 16, in violation of SDCL 22-22-7.2.

[¶ 3.] Count 6 involves 13-year-old “Jane Doe VI,” who lives in Bunger’s apartment building. He is accused of fondling her breasts and genitalia. Before Bunger’s arrest, police searched his apartment with a search warrant. They seized an adolescent’s bra belonging to Jane Doe VI that they found intertwined with a man’s shirt in Bunger’s bedroom. Bunger admitted to investigators that he specifically asked Jane Doe VI if he could have her bra. He told officers that he intended to give the bra to Goodwill. The child later corroborated that Bunger told her that he wanted her bra because he needed something to take to Goodwill.

[¶ 4.] The State provided to Bunger a list of items it intended to offer in evidence at trial. Jane Doe Vi’s bra was among the listed items. Bunger moved to suppress evidence of the bra and testimony about it, arguing relevancy and prejudice and improper use of character evidence. The State responded that it wished to use the bra and testimony concerning it to corroborate victim Jane Doe Vi’s testimony.

[¶ 5.] At the in limine hearing, the State informed the trial court that police would testify to the following: Bunger had knowledge of the bra in his bedroom; he knew the bra belonged to Jane Doe VI; he asked Jane Doe VI if he could have her bra; and he said he intended to donate the bra to Goodwill along with the shirts found with the bra. The State further informed the trial court that Jane Doe VI would testify that Bunger came to her apartment and told her he was going to Goodwill and asked if she had anything to donate; that she told him she did not; Bunger proceeded to enter her apartment, find a bra in her dresser drawer and asked if it still fit her; she replied she did not believe it did; he asked if he could have it; she did not deny this request; and Bunger took the bra. This occurred approximately four to five months before the bra was seized from Bunger’s apartment and during the period of time he is accused of having had sexual contact with Jane Doe VI and others.

[¶ 6.] The trial court found that the bra was not related to any particular incident of fondling and did not corroborate Jane Doe Vi’s allegation that Bunger had sexual contact with her. The court declined to suppress evidence of several photographs, including one depicting a rear view of Jane Doe VI fully clothed and bent over from the waist with her hands on her buttocks taken in the apartment building and a photograph of several Los Angeles Lakers cheerleaders in a similar pose. Both photographs were found in Bunger’s bedroom dresser drawer along with other photographs of Jane Doe VI. The State intended to offer these photographs as trial exhibits. The court conditionally admitted the photos provided the State laid the proper foundation at trial. However, the court distinguished admission of the photographs from evidence regarding the bra:

Just because he has the bra, doesn’t mean he’s done anything to anybody, and it doesn’t show anything. It doesn’t corroborate any testimony that you have alleged, that it had anything to do with any of the touching, it was done during any of the touching, or seen during any of the touching.... But I think that the bra is very — is—the argument about the bra is anybody who has a child’s bra with hearts on it that came from across the hall has got to be guilty of touching somebody, and I think that is stretching things and I think is very prejudicial to the defendant in this matter without being relevant.

The State appeals this ruling.

Analysis and Decision

[¶ 7.] Decisions on relevance are discretionary. 22 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure, Evidence § 5166 n. 45 (Supp.1990). Judicial discretion imports performing a function “according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular.” John W. Larson, South Dakota Evidence § 403.1, p. 137 (1991) (quoting Lord Halsbury in Sharp v. Wakefield, A.C. 173, 179 (1891)). Under SDCL 19-12-3 (Rule 403), “[t]he burden is on the opponent to establish that the proposed relevant evidence is substantially more prejudicial than probative, not on the proponent to establish that the probative value substantially outweighs its prejudicial effect in order to gain its admission.” Id. at § 403.2[1], p. 140 (emphasis in original). Rulings admitting or denying evidence are reviewed under the abuse of discretion standard. State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637.

[¶ 8.] Evidence must be relevant to be admissible. SDCL 19-12-2. Relevance denotes “any tendency to make the evidence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDC1 19-12-1. In State v. Wright, 1999 SD 50, ¶ 15, 593 N.W.2d 792, 799, we wrote that SDCL 19-12-3 (Rule 403):

‘favors the admission of evidence in the absence of strong considerations to the contrary.’ Larson, § 403.1 (1998 Supp). As juries should hear all relevant evidence, judges must sparingly invoke discretion to exclude evidence under this rule. See United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.1984) (Rule 403 is an ‘extraordinary remedy which should be used only sparingly since it permits the trial court to exclude con-cededly probative evidence’ and ‘in criminal trials relevant evidence is inherently prejudicial’), reh’g denied, 740 F.2d 979 (11th Cir.1984), and cert. denied sub nom., Gerwitz v. United States, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984); United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983) (trial judge must take special care to use Rule 403 sparingly); United States v. Thevis, 665 F.2d 616, 633-34 (6th Cir.1982) (Rule 403 is ‘extraordinary remedy’), reh’g denied, 671 F.2d 1379 (5th Cir.1982), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982).

[¶ 9.] To prove the charges brought against Bunger, the State must establish beyond a reasonable doubt that he committed a touching, not amounting to rape, of the breasts or genitalia or anus of a child with the intent to arouse or gratify the sexual desire of either party. SDCL 22-22-7.1. Possession of a child’s bra and testimony surrounding it does not prove Bunger had sexual contact with Jane Doe VI. However, it does connect him to this child. In South Dakota, although corroborating evidence is never necessary for conviction of a sexual offense, it tends to reinforce the proof supporting the charge. See SDCL 23A-22-15.1; State v. Gonzalez, 2001 SD 47, ¶ 18, 624 N.W.2d 836, 840-41; State v. Hart, 1996 SD 17, ¶ 9, 544 N.W.2d 206, 208. As is often the case with sexual crimes against children, there may be negligible physical evidence to corroborate the child’s version of events. For this reason, the absence or presence of circumstantial evidence may tend to discredit the child’s version or substantiate it. It is critical, therefore, that courts be sensitive to the admission of such evidence, whether it is offered by the prosecution or the defense. Here, we have an item of intimate apparel directly linking the defendant with the child. The child’s bra was found in the defendant’s bedroom.

[¶ 10.] Any evidence tending to connect an accused with the commission of a crime is relevant and probative. State v. Anderson, 2000 SD 45, ¶ 97, 608 N.W.2d 644, 671 (citing State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982)). See Hatcher v. State, 735 N.E.2d 1155, 1159 (Ind.2000) (emergency protective order held relevant in murder trial to show history of relationship between defendant and victim); Macy v. Blatchford, 330 Or. 444, 8 P.3d 204, 211 (2000) (reversible error to exclude evidence of sexual relationship between plaintiff and her physician as evidence was held relevant to her claim of negligence and informed consent); Evans v. State, 727 N.E.2d 1072, 1080 (Ind.2000) (evidence of defendant choking victim relevant to show their relationship in murder trial); State v. Jones, 137 N.CApp. 221, 527 S.E.2d 700, 704 (2000) (victim’s statements held relevant to show her relationship with defendant).

[¶ 11.] The law favors admitting relevant evidence no matter how slight its probative value. South Dakota’s Professor Larson explains: “It is sufficient that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable that it would be without the evidence.” Larson, § 401.1, p. 109 (emphasis added). Weighing evidence is primarily a jury function. State v. Holzer, 2000 SD 75, ¶ 26, 611 N.W.2d 647, 655. Only when prejudice must be balanced against probative value will a court weigh the evidence. Even then, the law favors admissibility. See Wright, 1999 SD 50 at ¶ 14, 593 N.W.2d at 799 (“Once the evidence is found relevant ... the balance tips emphatically in favor of admission unless the dangers set out in Rule 403 ‘substantially’ outweigh probative value.”).

[¶ 12.] In Simpson v. State, 271 Ga. 772, 523 S.E.2d 320, 321 (1999), the Georgia Supreme Court asked: “In a prosecution for a sexual offense, what limits should be placed on the admissibility of physical evidence of a sexual nature, such as writings, drawings, photographs, or paraphernalia connected with the defendant, and for what purposes should such evidence be admitted?” In answering, the court concluded that in “a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.” Id. at 321-22. Bunger is charged with fondling Jane Doe Vi’s breasts, and he was found in possession of her bra. The bra connects him to the child, and it connects him in a way that suggests an erotic attraction to the child. In a case of sexual contact, such evidence is highly relevant. The defendant acquired this bra during the same time frame he was alleged to have had sexual contact with the child, though the taking of the bra did not occur on the same day as the purported sexual contact. He claimed he had the bra merely to take to Goodwill, but he still had it in his bedroom months after he took it from the child’s dresser. Whether his possession occurred for the reason he claimed or because of an erotic attraction should be left for the jury to decide.

[¶ 13.] The trial court concluded that evidence concerning the bra was “highly prejudicial” without conducting the proper balancing test under SDCL 19 — 12— 3. Even relevant evidence may be excluded where it is prejudicial, misleading or cumulative, thus a balancing test to determine prejudicial versus probative value is required. Holzer, 2000 SD 75 at ¶ 27, 611 N.W.2d at 655. However, relevant evidence is not inadmissible if it incidentally tends to arouse passion or prejudice. State v. Kaseman, 273 N.W.2d 716, 726 (S.D.1978). Nor is evidence prejudicial “merely because its legitimate probative force damages the defendant’s case.” State v. Barber, 1996 SD 96, ¶ 19, 552 N.W.2d 817, 821. The burden was on Bunger to establish that the proffered evidence was substantially more prejudicial than probative. And the challenged evidence must be “unfairly” prejudicial; that is, it must have the capacity to persuade by illegitimate means. Holzer, supra (citing State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990)). We see nothing to indicate that the bra would prove sexual contact by illegitimate means. We conclude the evidence of the bra found in Bunger’s bedroom and belonging to Jane Doe VI has probative value, and it is not substantially outweighed by the danger of unfair prejudice. The court abused its discretion in ruling otherwise.

[¶ 14.] Reversed.

[¶ 15.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.

[¶ 16.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 17.] The majority authors are fond of stating the test for reviewing whether the trial court abused its discretion:

We are not to determine whether the judges of this court would have made an original like ruling, but rather whether we think a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.

A judicial mind could reasonably reach the trial court’s conclusion.

Stated another way, a trial court’s findings of fact and the subsequent application of discretion shall not be disturbed unless there is clearly no basis in reason or evidence to support that finding.

We should not disturb the trial court ruling because clearly there was a basis in reason and in evidence to support that decision.

[¶ 18.] Under this standard, how can the majority opinion claim that no judicial mind could find this unrelated piece of clothing irrelevant? In fact, the victim’s own testimony establishes its irrelevancy.

[¶ 19.] Therefore, I dissent.

[¶20.] I also join Justice Amundson’s dissent because the majority opinion’s de novo decision to stigmatize this defendant ignores the proper standard of review and will prevent Bunger from receiving a fair trial on the facts of the case.

AMUNDSON, Justice

(dissenting).

[¶ 21.] To prove the charges it brought against Bunger, the State must prove beyond a reasonable doubt that he had touching, not amounting to rape, of the breasts and genitalia or anus of this alleged victim and others with the intent to arouse or gratify the sexual desire of either party. SDCL 22-22-7.1. The State argued it offered the bra and testimony regarding the bra to corroborate Jane Doe Vi’s anticipated testimony at trial and provided no other reason for its admission into evidence. However, in South Dakota, it is not essential to a sexual offense conviction that the testimony of the victim be corroborated by any other evidence. See SDCL 23A-22-15.1; State v. Gonzalez, 2001 SD 47, ¶ 17, 624 N.W.2d 836, 840.

[¶ 22.] Bunger’s possession of Jane Doe Vi’s bra, obtained from her ostensibly as a donation to Goodwill, does not tend to prove any element of SDCL 22-22-7.1. The fact that he entered her room and asked about the bra after she indicated she had nothing to donate to Goodwill does not tend to prove sexual contact. The fact that the bra was found in his bedroom intertwined in a man’s shirt does not tend to prove sexual touching. The fact that he did not donate the bra to Goodwill does not tend to prove sexual touching. None of these facts, considered separately or together, tend to prove the crime with which Bunger is charged.

[¶23.] Even if Bunger obtained and kept the bra for prurient reasons, this does not tend to prove the crime with which he is charged. In State v. White, 1996 SD 67, 549 N.W.2d 676, this Court unanimously held that the trial court did not abuse its discretion in denying the defendant from introducing a pornographic video found in the victim’s VCR into evidence to prove that he was sexually attacked. In affirming the trial court’s decision to deny the admission such irrelevant evidence, this Court stated that “[t]he causal link between possession of pornographic materials and an individual’s propensity to commit sexual offenses is tenuous, if not nonexistent.” White, 1996 SD 67, ¶ 20, 549 N.W.2d at 682. The same reasoning in denying a defendant/proponént from admitting such evidence should also apply when it is the State who is the proponent of such evidence. Other courts have also similarly held. See e.g. State v. Nelson, 331 S.C. 1, 501 S.E.2d 716, 723 (1998); State v. Melcher, 140 N.H. 823, 678 A.2d 146 (1996); State v. Tizará, 897 S.W.2d 732, 744 (Tenn.Crim.App.1994); State v. Bernard, 849 S.W.2d 10 (Mo.1993); Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).

[¶ 24.] A necessary corollary to the presumption of innocence is that a defendant must be tried for what he did, not for who he is. As stated in Nelson,

It is obvious the real purpose, the sole purpose, of this evidence was, in general, to prove the appellant was a sexual pervert, and, in particular, to prove that his perversion was pedophilia, and to do so on the basis of reading material found in his possession some of which would offend a substantial number of jurors, prejudicing them against the appellant without regard to whether it proved anything against him.... If this material is supposed to provide a picture of the appellant as a pedophile, such profile evidence is inadmissible in criminal cases to prove either guilt or innocence.

501 S.E.2d at 720. The State has not shown the trial court abused its broad discretion in suppressing this evidence from a trial involving charges of sexual contact. Despite this obvious infirmity, this majority opinion stands for the proposition that if one is charged with a sex crime, any and all evidence, no matter how remotely related to sex, such evidence can be used by the State in prosecuting that person.

[¶25.] The rules of evidence are in place to assure a level playing field, and that, in a criminal trial, the defendant is tried for the crimes charged.

In a criminal trial, [the rules of evidence] serve [ ] to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs. [These rules] reflect [] long-established notions of fair play and due process, which forbid judging a person on the basis of innuendoes arising from conduct which is irrelevant to the charges for which he or she is presently standing trial.

State v. Melcher, 140 N.H. 828, 678 A.2d 146, 149 (1996) (citing United States v. Cortijo-Diaz, 875 F.2d 13, 15 (1st Cir. 1989)). Basing its decision with these rules in mind, the trial court held that Jane Doe Vi’s bra, found in Bunger’s bedroom, was not relevant to the charges against Bunger, including sexual contact with Jane Doe VI. Evidentiary rulings on a motion to suppress are presumed correct by this Court and are reviewed under an abuse of discretion standard. State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637; State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469. The majority opinion fails to afford the trial court the proper amount of deference to which it is entitled.

[¶ 26.] The State claims the trial court concluded that evidence concerning the bra was “highly prejudicial” without conducting the proper balancing test under SDCL 19-12-3. Even relevant evidence may be excluded where it is unfairly prejudicial. State v. Holzer, 2000 SD 75, ¶ 27, 611 N.W.2d 647, 655. If the trial court determines the evidence is relevant, it must then decide whether “its probative value is substantially outweighed by the danger of unfair prejudice.” SDCL 19-12-3. Because the court ruled the evidence was not relevant, and therefore inadmissible, this balancing test was not required.

[¶ 27.] Since the majority opinion concludes that the bra is relevant, it also determines, on a de novo basis, that the bra’s probative value is not substantially outweighed by the danger of unfair prejudice. I submit the majority opinion is substituting its judgment for that of the trial court. Without a ruling from the trial court as to the balancing of the bra’s probative versus prejudicial value under SDCL 19-12-3, the majority again wishes to micro-manage discretionary evidentiary decisions made by the trial court.

[¶ 28.] Therefore, I dissent.

        See Estate of Kamen, 2000 SD 32, ¶ 9, 607 N.W.2d 32 (Miller, C J.); Carpenter v. City of Belle Fourche, 2000 SD 55, ¶ 7, 609 N.W.2d 751 (Konenkamp, J.); State v. Anderson, 2000 SD 45, ¶ 93, 608 N.W.2d 644 (Gilbertson, J.).


author: GILBERTSON, Justice. AMUNDSON, Justice

text:
    2001 SD 115
    STATE of South Dakota, Plaintiff and Appellee, v. Tony Alvester FAULKS, Defendant and Appellant.
    No. 21628.
    Supreme Court of South Dakota.
    Considered on Briefs on May 29, 2001.
    Decided Aug. 29, 2001.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Julie A. Hofer, Minnehaha County Public, Defender’s Office, Sioux Falls, SD, Attorneys for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] Tony Alvester Faulks was convicted of first-degree robbery and possession of a controlled substance. He appeals claiming evidence against him was obtained in violation of the Fourth Amendment. He also challenges the trial court’s refusal to admit evidence of other unsolved robberies in the area. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On November 24, 1997, at approximately 9:15 a.m., Omar’s Market in Sioux Falls, SD, was robbed at knife-point by a black male, wearing a dark winter coat, dark pants, with a piece of light colored fabric around his face. After stealing approximately $1,400 from the owners of the store, Kathy and Ron Trel-oar, the perpetrator fled on foot. Kathy immediately called 911 to report the robbery, and a description of the suspect was dispatched to the Sioux Falls Police Department. The suspect was described as a tall, thin, 25-30 year old black male wearing a dark colored coat, and fleeing on foot.

[¶ 3.] Shortly after receiving this description, Lieutenant Runyan (Runyan) noticed a vehicle approaching from the direction where the robbery had occurred. The vehicle contained two black males, one in the driver’s seat, the other in the back seat. Runyan followed the car into a grocery store parking lot, where the car parked. Runyan had not activated his emergency lights or in any way signaled for the driver to stop the vehicle. As the occupants began to exit the vehicle, Run-yan approached the vehicle and asked to speak with the driver, Floyd Murphy. Runyan requested that the passenger, Faulks, remain in the vehicle. Murphy explained that Faulks had been at Murphy’s home earlier that morning, had left for thirty minutes to an hour, then returned and asked Murphy for a ride in his car. The two men had just left Murphy’s home, which is located a short distance from Omar’s Market. After Murphy gave permission to search his vehicle, officers found a dark colored coat with an athletic sock in a pocket.

[¶ 4.] At the same time, Faulks was being interviewed by Officer Babekuhl, who had arrived on the scene shortly after Runyan. Faulks’ version of the morning’s events differed significantly from Murphy’s version. When confronted with this discrepancy, Faulks twice changed his story. Because of the changing and still conflicting stories, Runyan and Babekuhl began to suspect Faulks had been involved in the robbery. Babekuhl then asked Faulks to accompany him to the detective bureau. After Faulks refused to do so, Babekuhl performed a pat-down search to insure Faulks did not have the knife used in the robbery in his possession. Babekuhl asked Faulks to place his hands on top of the patrol car. As Babekuhl began the search, Faulks quickly removed his right hand from the top of the patrol car and reached into his right pants pocket. Babe-kuhl removed Faulks’ hand from his pocket and resumed the pat-down. Faulks again inserted his hand into his pants pocket, Babekuhl again removed it, and continued the search. After Faulks reached into his pocket a third time, Babe-kuhl inserted his own hand into Faulks’ pocket and removed a cigarette pack. As the pack was being removed, its lid opened, revealing a crack pipe inside. Faulks was then arrested for possession of a controlled substance and possession of paraphernalia. At the county jail, Faulks was “screen searched,” meaning a canvas screen was placed between himself and the jailer while he stripped. After he had removed the last of his clothing, he held $1,300 in his hands.

[¶ 5.] Faulks was subsequently charged with robbery. At trial, the Treloars identified the coat found in Murphy’s car, as well as Faulks’ shoes, as consistent with the attire of the robber. They also identified the sock found in the coat as the mask used by the robber. The sock was also matched to a piece of fabric found on the market floor after the robbery. Faulks was convicted by a jury of robbery in the first-degree and possession of a controlled substance. He was sentenced by Judge Srstka to 75 years for robbery and six years for possession, sentences to run consecutively. On appeal, Faulks’ conviction was reversed and remanded, without opinion, pursuant to State v. Nelson, 1998 SD 124, 587 N.W.2d 439, because Judge Srstka had failed to read instructions on the presumption of innocence and reasonable doubt at the close of evidence.

[¶ 6.] On remand, Faulks’ retrial was assigned to Judge Neiles. Faulks filed pretrial motions to suppress evidence, raising the same issues that had been raised and denied prior to the first trial. Judge Neiles declined to reconsider Judge Srstka’s ruling on those issues. Faulks was again convicted of robbery and possession of a controlled substance and sentenced to twenty-three years for robbery and five years for possession, sentences to run concurrently. He has appealed, raising the following issues:

1. Whether the investigative stop was supported by a reasonable suspicion.
2. Whether the pat-down search was constitutional.
3. Whether the trial court abused its discretion in refusing to admit evidence of other unsolved robberies committed by black males.

ANALYSIS AND DECISION

[¶ 7.] 1. Whether the investigative stop was supported by a reasonable suspicion.

[¶ 8.] Under the Fourth Amendment to the United States Constitution, an investigative stop is a “seizure” even if its purpose is limited and the detention brief. State v. Lownes, 499 N.W.2d 896, 898 (S.D.1993). Under the protections afforded by the Fourth Amendment, a police officer may stop an individual only if that officer has a reasonable suspicion that a violation has occurred. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. The reasonable suspicion standard is less stringent than the probable cause required to issue a warrant or make an arrest. Id. Reasonable suspicion requires only that a “stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based on ‘specific and articula-ble facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995) (citing State v. Anderson, 331 N.W.2d 568, 570 (S.D. 1983)). Reasonable cause need not be based entirely on an officer’s personal observation, the necessary facts may be supplied by another person. Id. Such information on its own, if sufficiently reliable, may establish reasonable suspicion. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990). A stop is reasonable if “the officer’s action was justified at its inception, and [if] it was reasonably related in scope to the circumstances which justified the interference in the first place.” State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993). A finding of reasonable suspicion is based upon factual findings, which are reviewed under the clearly erroneous standard. Lovmes, 499 N.W.2d at 898. Ultimately, however, a determination of reasonable suspicion based on those facts is a question of law reviewed de novo. Id.

[¶ 9.] Under this standard, the issue becomes whether Runyan had a specific and articulable suspicion that the occupants of the vehicle had violated the law. We conclude he did. The trial court found that Runyan received a dispatch describing a tall, thin, black man, age 25 to 30, with a dark coat and white material over his face, fleeing on foot. He encountered the vehicle shortly after the robbery. The driver of the car, Murphy, fit the description of the suspect. The car was in the vicinity of the robbery and was traveling away from the scene, in the direction that the suspect had been seen running. Faulks was alone in the backseat, rather than the passenger seat, indicating an attempt to hide. When the vehicle passed Runyan, Faulks turned around to check if Runyan followed the vehicle. While following the vehicle, Runyan noticed Faulks was not wearing a coat, unusual for a cold late-November day. The trial court also found that Murphy had voluntarily stopped the car in the grocery store parking lot.

[¶ 10.] We faced a similar scenario in State v. Krebs, 504 N.W.2d 580 (S.D.1993). In that case, two males and a vehicle suspected in a series of burglaries were described in a police bulletin. Based on the information in that bulletin, Officer Wermer approached a parked vehicle and driver that matched the description in the bulletin, and briefly interviewed the driver. We determined that the seizure was reasonable, based on the information in the police bulletin. Id. at 585. Likewise, this stop was “not the product of mere whim, caprice, or idle curiosity.” See Cuny, 534 N.W.2d at 53. Runyan was acting on reliable information and specific, articulable facts that support his reasonable suspicion that a violation had occurred.

[¶ 11.] Faulks argues he did not match the description because he was not wearing a coat and the suspect had fled on foot. When examined under the totality of circumstances standard, as required by White, 496 U.S. at 330, 110 S.Ct. at 2416, 110 L.Ed.2d at 309, those facts do not alter our conclusion. It is quite possible that mutable characteristics of a suspect, such as attire and mode of transportation may vary significantly during flight from apprehension. We have previously recognized that “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a ... criminal to escape.” State v. Boardman, 264 N.W.2d 503, 506 (S.D.1978) (quoting Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616) (citations omitted). Rather, the “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Id. Runyan’s “stop” was intended to identify the occupants of the vehicle and obtain additional information. Based on the “specific and articulable” facts, as well as the inferences therefrom, the stop was reasonable.

[¶ 12.] 2. Whether the pat-down search was constitutional.

[¶ 13.] One exception to the Fourth Amendment’s requirement that a warrant be issued before a search is performed is the pat-down search authorized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When an officer suspects a subject is carrying a weapon, a pat-down search is permissible:

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911. This narrow exception allows a pat-down search if the officer believes a person “to be armed and dangerous.” State v. Tilton, 1997 SD 28, ¶ 17, 561 N.W.2d 660, 664. Whether a search is constitutionally permissible is a question of law reviewed under the de novo standard. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488.

[¶ 14.] Faulks claims the pat-down search was unconstitutional based on our decision in State v. Shearer, 1996 SD 52, 548 N.W.2d 792. In that case, we invalidated a pat-down search because the officer testified that he did not believe the defendant was armed or dangerous. Be-, cause there was no reasonable threat of danger, the pat-down search was unconstitutional. Id. ¶20, 548 N.W.2d at 796. When reviewing a pat-down search, “the issue is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. ¶ 18. While the officer in Shearer had no real concerns for his safety, in this case Babekuhl testified: “I figured he might have had a knife on him from the robbery and I was worried for my own safety as well as the other officers.” Although an officer’s subjective belief is not determinative, it is a factor to be considered along with the totality of circumstances. At the time of the initial encounter, the officers had a reasonable suspicion that either Faulks or Murphy may have robbed Omar’s Market. The initial inquiry amplified, rather than dispelled that suspicion. See id. During only ten minutes of conversation with Babekuhl, Faulks had given three inconsistent versions of the morning’s events. Furthermore, the officers knew a knife had been used in the robbery.

[¶ 15.] In addition, Faulks repeatedly reached inside his front pocket, and disregarded Babekuhl’s orders. In Tilton, the defendant refused to remove his hands from his pockets after an officer noticed a large bulge in his front pocket. Because of Tilton’s “peculiar and uncooperative behavior, it was reasonable for the officer to believe a weapon may still be in his pocket....” Tilton, 1997 SD 28, ¶ 20, 561 N.W.2d at 665. Therefore, the removal of Tilton’s hands from his pockets and the subsequent discovery of methamphetamine was justified. Id. Likewise, Faulks’ repeated efforts to reach into his pocket was “peculiar and uncooperative,” and justified Babekuhl’s removal of the cigarette pack. We do not require officers to be “absolutely certain that the individual is armed;” the standard “is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Shearer, 1996 SD 52, ¶ 18, 548 N.W.2d at 796.

[¶ 16.] Faulks argues that Babekuhl’s claimed fear cannot withstand judicial scrutiny because he interviewed Faulks in his squad car on three occasions and Faulks was not threatening or hostile during that time. According to Faulks, if Babekuhl had indeed feared that Faulks was dangerous, he would have searched Faulks at the outset. This argument ignores the fact that Faulks was not searched until he was considered a suspect, which did not occur until after he had given three conflicting stories. We will not fault police officers for failing to pat-search an individual before that person is a suspect in a crime. Babekuhl’s fear was reasonable, therefore the pat-down search did not violate Constitutional mandates.

[¶ 17.] 3. Whether the trial court abused its discretion in refusing to admit evidence of other unsolved robberies committed by black males.

[¶ 18.] Decisions to admit or refuse evidence are reviewed under the abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353. Our rule regarding the admission of third party perpetrator evidence requires the trial court to “balance the importance of the evidence for the defendant against the State’s interest in preserving orderly trials and excluding unreliable or prejudicial evidence.” State v. Garza, 1997 SD 54, ¶ 25, 563 N.W.2d 406, 410-11 (quoting State v. Braddock, 452 N.W.2d 785, 789 (S.D.1990)). Pursuant to SDCL 19-12-3, the evidence should “be excluded only if its probative value is substantially outweighed by the harm likely to result from its admission.” Braddock, 452 N.W.2d at 789. Third party perpetrator evidence “is not to be admitted if the State’s interest in exclusion of the evidence outweighs its probative value.” Garza, 1997 SD at ¶ 25, 563 N.W.2d at 411.

[¶ 19.] Faulks argues the trial court abused its discretion in refusing to admit evidence of six unsolved robberies in Sioux Falls that occurred prior to and after his arrest on November 24, 1997. The trial court determined that, based on the varied physical descriptions, clothing worn and weapon used in each of the six robberies, more than one perpetrator committed the robberies. Therefore, the trial court excluded the evidence because it would only confuse the jury. To properly, review the trial court’s decision, we must examine the proposed evidence.

[¶ 20.] The first robbery occurred on November 24, 1997, the same day Omar’s Market was robbed. The suspect was a black male, in his mid thirties, approximately five feet, eleven inches tall, weighing 280 pounds, wearing a two-toned coat and wielding a knife. A second robbery, which occurred on November 26, 1997 involved a black male, 180 to 200 pounds, standing six feet, two inches tall, wearing a green coat and using a handgun. On December 1, 1997, another robbery occurred, involving a black male, weighing 135 to 140 pounds, between 30 and 40 years old. That suspect used a knife, wore a tan trench coat and a black scarf over his face. A fourth robbery occurred on December 15, 1997, when a black male, five feet, nine inches tall, weighing 150 pounds, robbed a casino. The suspect used a knife, wore a dark blue coat, with a scarf over his face. Another robbery involved a five foot, eight inch black man with medium build, using a handgun, and wearing a gray coat. The final robbery involved a black male, age 28-30, standing five feet, nine inches tall. The suspect used a gun and wore a maroon windbreaker.

[¶ 21.] In State v. Luna, 378 N.W.2d 229 (S.D.1985), the defendant sought to introduce third party perpetrator evidence alleging a murder for hire conspiracy between the victim’s brother and a homeless man. We affirmed the exclusion of such evidence as “highly unreliable and of little probative value.” Id. at 234. In State v. Larson, 512 N.W.2d 732 (S.D.1994), Larson was charged with murder for a death resulting from a drive-by shooting. He sought to introduce evidence of other possible drive-by shootings; specifically, marks on the wheel of a vehicle that may have been caused by a weapon similar to one used in the murder, and testimony from a witness who allegedly heard a shotgun blast from a van. We held that evidence was inadmissible, noting it was “clearly weaker, given the totality of the circumstances, than the evidence found properly excluded in Luna.” Id. at 740.

[¶ 22.] Much like the evidence in Luna and Larson, the evidence here is unreliable and of little probative value. The physical descriptions of the suspects in the robberies ranged widely between 135 and 280 pounds. Only three suspects used a knife, as was done in the robbery of Omar’s Market. In addition, the clothing worn varied significantly. We agree with the trial court’s conclusion that there was “more than one black male who [was] committing robberies in Sioux Falls.... ” We noted in Garza, that “[w]hen evidence exists that demonstrates a third person was in the proximity of a crime, and had the motive and opportunity to commit the crime, the evidence is admissible.” 1997 SD at ¶ 26, 563 N.W.2d at 411 (citations omitted.) There is no evidence linking any of the suspects in these other robberies to the robbery at Omar’s Market. The evidence regarding the unsolved robberies is highly unreliable, has little probative value, and is little more than “baseless innuendo.” Luna, 378 N.W.2d at 234. The State’s interest in orderly trials and the exclusion of unreliable evidence outweighs any detriment to Faulks. Therefore, the trial court did not abuse its discretion in refusing to admit the third party perpetrator evidence.

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

[¶ 24.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 25.] I respectfully dissent on issue two. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized another exception to the general rule that a search without probable cause is per se unreasonable. State v. Shearer, 1996 SD 52, ¶ 18, 548 N.W.2d 792, 796. The Court held that a police officer that lacks probable cause to arrest could conduct a pat-down search, “where he has reason to believe that he is dealing with an armed and dangerous individual.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The Terry exception is narrow, “the sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope of an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” 392 U.S. at 29, 88 S.Ct. at 1884.

[¶ 26.] The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. Terry, 392 U.S. at 20, 88 S.Ct. at 1879. See also Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968) (stating that the search and seizure of the defendant would have been justified if the officer had had reasonable grounds to believe that the defendant was armed and dangerous). Without specific and articula-ble facts supporting the officer’s conclusion that he feared for his safety, the pat-down search cannot be upheld. People v. Dickey, 21 Cal.App.4th 952, 27 Cal.Rptr.2d 44, 46 (1994) (“Without ‘specific and articula-ble’ facts which show that the suspect may be armed and dangerous, these conclusions [“officer safety” and defendant “potentially may have been armed”] add nothing.”).

[¶ 27.] Officer Craig Babekuhl testified that he conducted a Terry search out of “fear for his safety” based upon the fact that a knife had been used in the robbery of which defendant was a suspect. However, a review of the facts fails to support the officer’s conclusionary statement at the hearing that he “feared for his safety.”

[¶ 28.] The stopping officer, Lieutenant Runyan, initially suspected the defendant and driver of the armed robbery of Omar’s Market. Lieutenant Runyan was aware that a knife had been used in the robbery. Yet, when Lieutenant Runyan pulled the two men over, he did not immediately frisk for a weapon, but simply requested that the driver step out of the car while the passenger remain in the car. Backup units arrived shortly thereafter. Officer Tim-merman was the first to arrive. Officer Timmerman also knew the two were suspected of the armed robbery in which the suspect had wielded a knife. Officer Tim-merman approached the passenger (Faulks), asked for identification, and, upon receiving it, returned to his patrol car. From his patrol car, approximately twelve to fifteen feet from defendant, Officer Timmerman ran a check on Faulks’ identification. For the next seven to ten minutes, Officer Timmerman sat in the patrol car and “wait[ed] to see what was going to happen.” At no time did Officer Timmerman conduct a pat-down search fearing a weapon.

[¶ 29.] Meanwhile, Officer Babekuhl, accompanied by recruit Officer Warrant, arrived at the scene. Officer Babekuhl approached Faulks and invited Faulks to sit in his patrol car where it was warmer. Officer Babekuhl testified as to no “fear for his safety” at this point, even though he was investigating a robbery. Officer Babekuhl sat in the driver seat, Officer Warrant sat in the backseat, and Faulks was seated in the passenger seat of the patrol car. For the next five to six minutes Officer Babekuhl spoke with Faulks, inquiring about Faulks’ whereabouts that morning. Following this inquiry, Officer Babekuhl and Lieutenant Runyan met outside the patrol cars to compare the stories of the two individuals. When the individuals’ stories did not match, Officer Babe-kuhl returned to the squad car. Again, Officer Babekuhl spoke with Faulks. During these conversations, which together lasted approximately ten to fifteen minutes, Faulks sat next to Officer Babekuhl in the passenger seat, was under no type of restraint and could freely move around. Following this second conversation, Officer Babekuhl asked if Faulks would accompany him to the detective bureau for further questioning. Faulks refused. At this point, despite the fact that Faulks had been in close proximity of the officers for the past ten minutes, and despite the fact that none of the officers had previously been concerned that the suspect was armed and dangerous, suddenly, as though struck by a bolt of lightening, Officer Ba-bekuhl claims he felt “fear!” Consequently, a Terry pat-down search was conducted.

[¶ 30.] Employing the proper terminology and appropriate conclusions does not obviate the necessity for “specific and ar-ticulable” facts that show the suspect may be armed and dangerous. See Dickey, 27 Cal.Rptr.2d at 46. Under the facts of this case, the Terry requirement of present dangerousness was clearly not satisfied. It was only when Faulks refused to accompany the officer downtown for further questioning, that Officer Babekuhl was struck by “fear.” The officers did not observe any suspicious bulges or protrusions in Faulks’ clothing or pockets. See Tilton, 1997 SD 28, 561 N.W.2d 660 (suspicious bulge, coupled with defendant’s belligerent attitude and attempt to conceal gave officer reasonable suspicion to believe defendant was dangerous). Faulks did not appear to be concealing a weapon and he was not wearing any concealing type of clothing, in fact, he was not even wearing a jacket. Further, Faulks was not conducting himself in a belligerent nor aggressive manner, but had been cooperative throughout the stop.

[¶ 31.] Considering all of the above, the Terry exception to a search conducted without probable cause simply was not met. While there is no question that officer safety is of the utmost importance, merely testifying to after-the-fact fear should not provide an excuse to end-run an individual’s constitutional right to be free from unreasonable searches and seizures. Fear is not a catch phrase to be used by police to skirt around a citizen’s constitutional protections. This Court adheres to the notion that the “totality of the circumstances” must be taken into account when determining fourth amendment protections. See State v. Dreps, 1996 SD 142, 558 N.W.2d 339. The “totality of the circumstances” here dictates that the trial court erred by focusing its attention solely on the rehearsed responses of the officers. Therefore, under the facts of this case, the search violated Faulks’ constitutional right to be free from unreasonable search and seizure. Shearer, 1996 SD 52, ¶20, 548 N.W.2d at 796.

[¶ 32.] Under the exclusionary rule, illegally obtained evidence must be suppressed. State v. McCreary, 82 S.D. Ill, 125, 142 N.W.2d 240, 247 (1966) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). This rule deters police officers from violating constitutional protections. Shearer, 1996 SD at ¶ 22, 548 N.W.2d at 796. As this Court stated in Shearer:

[W]ere we to permit the fruits of this search to be admitted, there would be no effective sanction to deter police from employing similar unlawful methods in the future. Fourth Amendment protections to our citizens cannot be sacrificed.

1996 SD at ¶ 22, 548 N.W.2d at 797. Consequently, the suppression motion was erroneously denied.

[¶ 33.] I dissent.

       Faulks also contends that Judge Neiles erred by not reviewing Judge Srstka's pre-trial rulings. As each of Judge Srstka's rulings have been addressed and affirmed, the issue is moot.


text:
    2001 SD 117
    Vernon EDWARDS, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.
    No. 21834.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Sept. 19, 2001.
    Debra M. Voigt of Galland Legal Clinic, Sioux Falls, SD, Attorneys for petitioner and appellant.
    Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, SD, Attorneys for respondent and appellee.
   PER CURIAM.

[¶ 1.] Vernon Edwards, who is serving a 24-year sentence for first-degree arson, appeals the denial of his application for a writ of error coram nobis. Because the record indicates that Edwards has a pending writ of habeas corpus action, we dismiss this appeal without prejudice until that action is completed.

FACTS AND PROCEDURE

[¶2.] Edwards was tried April 17-19, 1996. Judge William J. Srstka presided and failed to read certain jury instructions at the close of the evidence. Edwards was found guilty and sentenced on July 24, 1996 to 24 years in the state penitentiary, 3 years suspended. He filed a timely appeal.

[¶ 3.] On November 25, 1997, we affirmed the judgment of conviction. State v. Edwards, 1997 SD 130, 572 N.W.2d 113. The appeal addressed the sole issue of the trial court’s refusal to hold a competency hearing prior to trial.

[¶4.] On July 14, 1998, Edwards filed his first pro se application for writ of habeas corpus, claiming ineffective assistance of trial and appellate counsel. One year later, on June 7, 1999, the habeas court dismissed Edwards’ application for habeas relief and refused to grant certificate of probable cause on grounds the application was frivolous.

[¶ 5.] On November 12, 1999, Edwards filed a second pro se petition for writ of habeas corpus. Following appointment of counsel to assist Edwards, he amended this petition on July 6, 2000, challenging the trial court’s refusal to repeat the preliminary jury instructions at the close of evidence, citing State v. Nelson, 1998 SD 124, 587 N.W.2d 489 and State v. Jemison, 1999 SD 29, 590 N.W.2d 897. The settled record reveals that a writ of habeas corpus was entered July 6, 2000, acknowledging the amended petition and requesting a hearing be set within thirty days. The State’s time for filing a return was extended and a hearing was set for October 6, 2000 with an order to transport Edwards to the courthouse. The State concedes in its return that the trial court failed to reread preliminary jury instructions at the close of evidence in Edwards’ trial. There is no further record indicating the habeas court’s decision in this matter. The State asserts in its brief that no decision on this amended petition has been made to date.

[¶ 6.] On November 8, 2000, Edwards filed an application for writ of coram nobis based on the inadequate jury instructions, citing Nelson and Jemison. Judge Srstka presided over the matter and denied the application without a hearing or a response from the State. This appeal followed.

ANALYSIS AND DECISION

[¶ 7.] Edwards was convicted July 24, 1996. Five months later, we issued State v. Eagle Star, 1996 SD 143, 558 N.W.2d 70, holding that while the court’s refusal to re-read preliminary jury instructions at the close of evidence was reversible error, no prejudice had been shown.

[¶ 8.] While Edwards’ first habeas action, claiming ineffective assistance of counsel, was pending, we issued State v. Nelson, 1998 SD 124, 587 N.W.2d 489. There we held that the failure of the trial court to repeat preliminary jury instructions at the close of the evidence was reversible error. The trial judge in Nelson was the same judge who presided over Edwards’ trial and over his coram nobis action. Since issuing Nelson, we have decided State v. Jemison, 1999 SD 29, 590 N.W.2d 897; State v. Williams, #20574, 590 N.W.2d 709 (rev & exp 2/19/99); State v. Waugh, # 20796, 596 N.W.2d 734 (rev & exp 5/7/99); State v. Cochran, # 20800, 596 N.W.2d 734 (rev & exp 5/21/99); State v. Clements, # 20668, 596 N.W.2d 734 (rev & exp 6/7/99); State v. Altamimi, #20695, 596 N.W.2d 734 (rev & exp 6/7/99); State v. Patterson, # 20802, 601 N.W.2d 283 (rev & exp 7/1/99); and State v. Faulks, #20671, 601 N.W.2d 283 (rev & exp 7/23/99), all involving this same trial judge and all ordering a retrial. Prejudice is now presumed. See Jemison, supra (Amundson, J., dissenting). In all of these cases, we held Nelson to be dispositive, even where no objection had been made at trial.

[¶ 9.] The writ of eoram nobis can only be used to remedy a profound injustice where the petitioner has no other available remedy. Gregory v. Class, 1998 SD 106, 584 N.W.2d 873. The State concedes in its brief that, if the procedural requirements of this remedy are met, Nelson is dispositive. However, the State maintains Edwards must establish prejudicial error. As noted above, this position is not the holding of this Court.

[¶ 10.] We recently examined the nature of the writ of coram nobis:

Jurisdiction of a court to grant relief under [coram nobis] is of limited scope. Any proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise.... Relief will be granted only when circumstances compel such action ‘to achieve justice.’
With one significant exception, coram nobis deals only with errors of fact. The exception is that the writ can reach certain constitutionally significant errors like ‘jurisdictional defects.’

Gregory, 1998 SD 106 at ¶ 17, 584 N.W.2d at 878. The writ may not be used to examine anew questions previously determined nor is it an alternative to direct appeal or habeas action. Id. We further explained:

In summary, coram nobis is limited to reviewing a criminal conviction respecting some error in fact (or fundamental jurisdictional error), as opposed to an ordinary error in law, that without the fault of the petitioner was unknown at the time of the questioned proceedings, or unrevealed because of fraud or coercion, without which the judgment would not have been entered, and for which there is no other available remedy.

Id. at ¶ 18 (emphasis added). “Those seeking coram nobis relief must carefully study the procedural history of the case, ‘because past events exert a decisive control over which issues may or may not be raised ... [and trial records] have to be examined in order to ascertain whether a claim is barred by res judicata or collateral estoppel.’ ” Id. (citations omitted).

[¶ 11.] Here, the procedural history indicates a pending petition for writ of habe-as corpus in which the same issue now before us was raised at what appears to be the first available opportunity. The failure of the trial court to re-read preliminary jury instructions at the close of evidence is an error of law as this Court held in Nelson and its progeny. However, the fact that there appears to be a pending habeas action precludes relief under coram nobis. In Rennich-Craig v. Russell, 2000 SD 49, ¶ 19, 609 N.W.2d 123, 127-28, we recognized that:

‘the function of habeas corpus is not to correct a practice but only to ascertain whether the procedure complained of has resulted in an unlawful detention.’ Therefore, a petition for a writ of habeas corpus is available to remedy procedural errors made at trial if those procedures are of such a nature or magnitude to render the entire detention unlawful.

Id. (quoting Eagles v. United States ex rel. Samuels, 329 U.S. 304, 315, 67 S.Ct. 313, 319, 91 L.Ed. 308, 316 (1946)). See also State v. Johnson, 173 Ariz. 274, 842 P.2d 1287, 1289 (1992), vacated, 173 Ariz. 274, 842 P.2d 1287 (1992) (overwhelming evidence will not relieve courts of their obligation to ensure that “judicial process is properly accomplished.”) (cited in Nelson, 1998 SD 124, ¶ 14, 587 N.W.2d 439, 445).

[¶ 12.] Because Edwards may have an adequate remedy under his habeas corpus action, the remedy of writ of coram nobis is unavailable to Edwards at this time. We need not address his second issue to dispose of this appeal. We dismiss this appeal without prejudice until the habeas action is concluded.

[¶ 13.] SABERS, Acting Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, participating.

[¶ 14.] MILLER, Retired Chief Justice, having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . Although the same attorney represented Edwards on his second habeas action, on application of the writ of coram nobis and now on appeal, no explanation is provided to this Court regarding what occurred at the October 6, 2000 hearing or why there is no record evidence of any further activity in the habeas action.

      . As the coram nobis action involves claims that the trial judge committed reversible error, that judge should recuse himself from presiding further in this matter.

      . In Petition of Brockmueller, 374 N.W.2d 135 (S.D. 1985), a writ of corum nobis action, we determined the remedy of habeas corpus was unavailable as Brockmueller’s term of incarceration had been completed. In State v. Davis, 515 N.W.2d 205 (S.D.1994), we vacated a writ of corum nobis where the same issue had been raised on direct appeal but the appeal dismissed on Davis' own motion. In Davis' case, a burglary statute had been misapplied (like the misapplication of SDCL 23A-25-4 in Nelson and the present case).


author: LARSON, Justice.

text:
    STATE of Iowa ex rel. Thomas J. MILLER, Attorney General of Iowa, Appellant, v. PUBLISHERS CLEARING HOUSE, INC., a New York Corporation, Appellee.
    No. 99-0253.
    Supreme Court of Iowa.
    May 31, 2001.
    Rehearing Denied Oct. 3, 2001.

      Thomas J. Miller, Attorney General, and Steve St. Clair, Assistant Attorney General, for appellant.
    W. Don Brittin, Jr., Michael W. Thrall, and Stephanie L. Marett of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellee.
   LARSON, Justice.

The consumer fraud division of the attorney general’s office (attorney general) began an investigation of a sweepstakes program conducted by Publishers Clearing House (PCH). The attorney general believed PCH was illegally targeting vulnerable Iowans, particularly the elderly. When PCH refused to furnish some of the information requested, the attorney general served it with a subpoena and ultimately sought a court order compelling compliance. The district court ordered production of some, but not all, of the information requested, and the attorney general appealed. We reverse and remand.

I. Facts and Prior Proceedings.

The attorney general began an investigation into direct mail solicitation by PCH to see if PCH was inducing Iowa residents to mistakenly believe additional purchases of magazines and other merchandise would improve their chances of winning its sweepstakes. There was evidence that purchases made by elderly Iowans could not be explained on the basis of ordinary personal use. Some of the purchases were substantial and would remain unopened and unused, perhaps even unusable by the purchaser. The attorney general was concerned these purchases were motivated by statements in the solicitations that an individual is a “good customer,” “a friend of The Clearing House,” “on our Best Customer list, on our Contenders List, on our President’s Club Member List” and “isn’t the type of person who wants ‘something for nothing,’ but is a deserving customer of Publishers Clearing House.”

The attorney general sought to determine whether targeted persons were induced by fraud to invest in additional merchandise. According to some of the evidence gathered, an eighty-three-year-old Iowa woman, who believed the “prize patrol” would soon be visiting her, purchased a number of videotapes, although she had no VCR. She purchased compact discs, although she had no CD player, and subscribed to more than forty magazines. These included Men’s Journal, PC World, although she had no computer, Sailing, Sports Illustrated for Kids, Road & Track, Popular Mechanics, Sesame Street Parents, Cat Fancy, although she had no cat, Outdoor Life, and Fortune. Other people had also purchased substantial amounts of merchandise for which they had no apparent use.

During the investigation, the attorney general learned that PCH monitors the purchase volume of specific customers and periodically sends an informational mailing to those customers who may not understand they do not need to make purchases in order to enter the sweepstakes. The attorney general sought to verify and evaluate the effectiveness of these remedial measures and gain other information to protect vulnerable purchasers. The parties engaged in an ongoing discussion concerning the information requested by the attorney general. Finally, on February 3, 1998, the attorney general served a subpoena for the following information:

Separately for calendar years 1996 and 1997, a list of all Iowa customers of Publishers Clearing House who made purchases exceeding $200.00 in the year in question. For each name listed, provide the person’s mailing address, phone number if available, and the dollar amount of total purchases by that person for the year in question. For each person listed, also indicate whether that person is currently in your active mailing category, and, if not, the date on which the person was removed from that category. In addition, for anyone appearing on either the 1996 or 1997 list whose total purchase amount for the year in question exceeded $2,500.00, provide an itemization of that person’s purchases for the year in question by item, cost, and date of purchase.

After the subpoena was served, discussions between the parties continued, and eventually some accommodations were reached. PCH provided a letter listing the number of consumers who made purchases within different dollar ranges ($100 increments from $200 to $500, and then $500 increments up to $2500). However, PCH claimed this “range information” was a trade secret and should remain confidential. The attorney general agreed to accept customer information only for those who spent $1000 or above for the period in question, rather than $200 or above.

PCH ultimately responded to the subpoena by providing a single list of Iowa customers (instead of separate lists for 1996 and 1997) who had spent $1000 or more in a year. The list was broken into ranges instead of specific dollar amounts, but even the $500 divisions stopped above $2500 no matter how far above $2500 they might be and did not include an itemization of purchases for customers spending over $2500. PCH also failed to indicate whether each person listed was still in its active mailing category. By letter of April 1, 1998, PCH declined to provide this information, objecting on the grounds of relevance, materiality, burdensomeness, and intrusiveness. In response to the attorney general’s request for additional support for the contention the range information was a trade secret, PCH merely claimed it was “self-evident” that such information was “confidential proprietary information that can be used by others to obtain an economic benefit.”

On June 17, 1998, the attorney general filed an application for a court order compelling compliance with the subpoena. In an order filed August 3, 1998, the district court found PCH “substantially complied” with the subpoena, and it would be “extremely burdensome,” costing in excess of ten thousand dollars, to fully comply with the subpoena. The court found the range information (the number of PCH customers at various spending levels), as well as other PCH material provided to the attorney general, were trade secrets. On August 13, 1998, the attorney general filed an Iowa Rule of Civil Procedure 179(b) motion in response to the ruling. In ruling on the rule 179(b) motion, the district court found that the cost of compliance would be just under ten thousand dollars, not over that amount, PCH should provide separate lists for 1996 and 1997, and it should indicate whether each name on the list is actively receiving mailings. This ruling still did not require PCH to provide a date when customers were removed from the active mailing list, the total amount spent by each customer, or an itemized list of purchases for customers spending over $2500 in a year, as requested in the subpoena. (The attorney general agreed to PCH’s request not to be required to provide the dollar amount of total purchases for customers spending less than $2500.) The attorney general appealed, contending the court erred in failing to give the attorney general’s subpoena the broad application intended by the discovery provisions of our consumer fraud statute, Iowa Code § 714.16 (1997), and erred in holding some of the material sought should be protected as trade secrets.

II. Standard of Review.

The attorney general claims our review should be de novo because a civil action filed pursuant to the consumer fraud statute “shall be by equitable proceedings.” See Iowa Code § 714.16(7). Under Iowa Rule of Appellate Procedure 4, appellate review in equity cases is de novo. The attorney general argues that the unique equitable remedies available under Iowa Code section 716.16(6) distinguish the enforcement of a subpoena under the consumer fraud statute from enforcement of an administrative agency subpoena under our administrative procedure act, Iowa Code ch. 17A. PCH claims a subpoena under the consumer fraud act is subject to the same standard of review as agency subpoenas under chapter 17A, and “[because agency subpoena power is essentially a discovery tool, our review is limited to abuses of trial court discretion.” See Citizens’Aide/Ombudsman v. Grossheim, 498 N.W.2d 405, 407 (Iowa 1993).

We reject the attorney general’s argument that, because the proceedings for an injunction under the consumer fraud statute are in equity, we should review collateral discovery issues de novo as well. As PCH points out, this is not an action under Iowa Code section 714.16(7) to enjoin PCH’s activities (which clearly would be equitable), rather it is a discovery procedure, and the standard of review is for abuse of discretion, as in other administrative subpoena cases. See Grossheim, 498 N.W.2d at 407. In exercising such discretion, a court should keep in mind the broad scope of the attorney general’s subpoena power under the consumer fraud statute. In an analogous case, involving an administrative subpoena, we noted the extensive powers of an investigating authority:

Administrative agencies are normally invested with broad investigative powers to enable them to effectively carry out their legislative mandates. Agencies with authority to conduct investigations for the purpose of ascertaining probable cause for the institution of a contested case have powers comparable to those of a grand jury.

Iowa Civil Rights Comm’n v. City of Des Moines/Personnel Dep’t, 313 N.W.2d 491, 495 (Iowa 1981).

When an agency has investigative and accusatory powers, “courts have been cautious to interfere with agency subpoena powers except to preserve due process rights.” Id. Agency subpoenas are enforced if they are “(1) within the statutory authority of the agency, (2) reasonably specific, (3) not unduly burdensome and (4) reasonably relevant to the matters under investigation.” Iowa City Human Rights Comm’n v. Roadway Express, Inc., 397 N.W.2d 508, 510 (Iowa 1986). Subpoenas are not enforced if they do not meet these standards because, it has been said, these standards mark the bounds of a permissible “constructive search” under the Fourth Amendment. Scott v. Ass’n for Childbirth at Home, Int’l, 88 Ill.2d 279, 58 Ill.Dec. 761, 430 N.E.2d 1012, 1021 (1981); see also United States v. Morton Salt Co., 338 U.S. 632, 651-54, 70 S.Ct. 357, 368-70, 94 L.Ed. 401, 415-17 (1950); United States v. Bailey (In re Subpoena Duces Tecum), 228 F.3d 341, 347 (4th Cir.2000) (administrative subpoenas must satisfy Fourth Amendment requirements: the subpoena must be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome); Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir.1982) (“The bur-densomeness test finds its genesis in the Fourth Amendment, which prescribes that disclosure shall not be unreasonable.”).

The United States Supreme Court has said in reference to agency investigations:

The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion the law is being violated, or even just because it wants assurance that it is not.

Morton Salt, 338 U.S. at 642-43, 70 S.Ct. at 364, 94 L.Ed. at 410-11 (emphasis added). PCH makes no Fourth Amendment claim here, and in fact, specifically rejects a constitutional/de novo review in favor of an abuse-of-discretion review.

III. Enforcing the Subpoena.

PCH does not challenge enforcement of the subpoena on the first two Roadway Express factors — that it is within the statutory authority of the attorney general and it is reasonably specific. PCH does, however, claim the subpoena was unduly burdensome and not reasonably relevant to the matters under investigation. A party opposing enforcement of this type of subpoena must establish that the subpoena is unreasonable or that compliance would be unnecessarily burdensome. RNR Enters., Inc. v. SEC, 122 F.3d 93, 97 (2d Cir.1997); FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir.1995) (“The subpoenaed party bears the heavy burden of establishing an abuse of the court’s process.”).

The broad extent of the attorney general’s investigative powers, and therefore necessarily a limitation on a trial court’s discretion to restrict those powers, is evidenced by the language of the statute:

When it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this section or when the attorney general believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any such practice, the attorney general may:
a. Require such person to file ... a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning the sale or advertisement of merchandise by such person, and such other data and information as the attorney general may deem necessary;
b. Examine under oath any person in connection with the sale or advertisement of any merchandise;
c. Examine any merchandise or sample thereof, record, book, document, account or paper as the attorney general may deem necessary ....

Iowa Code § 714.16(3) (emphasis added).

PCH contends the district court did not abuse its discretion in refusing to order further disclosure for two reasons: (1) it had “substantially complied with” the subpoena, and (2) “further compliance would be burdensome in relation to the benefit of further compliance.”

A. The substantial-compliance argument.

The district court found PCH had “substantially complied” with the subpoena and further that complete compliance would be “extremely burdensome.” The attorney general argues that there is no express authority for applying a substantial-compliance standard. PCH concedes there is no such express authority, but it argues that a court may “modify” a subpoena to accomplish the same purpose. It argues the court has the authority to modify a subpoena “if the demand is unduly burdensome,” citing FTC v. Texaco, Inc., 555 F.2d 862, 881 (D.C.Cir.1977).

We reject the argument that substantial compliance excuses PCH from furnishing all of the information requested. PCH must show that production of the information it seeks to exclude would be unduly burdensome. To adopt PCH’s argument that it is excused from producing all of the information requested by producing some of it would allow it, rather than the attorney general, to determine the scope of the discovery. The key is whether production of the omitted information would be unduly burdensome. See Berg v. Des Moines Gen. Hosp. Co., 456 N.W.2d 173, 177 (Iowa 1990) (“[Bjurdensomeness may, upon a proper showing, be a basis for limiting discovery.”); see also Texaco, 555 F.2d at 882 (“[Cjourts have refused to modify investigative subpoenas unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business.”).

B. Burdensomeness. Resolution of the discovery issue in this case boils down to whether full compliance with the attorney general’s subpoena would be unduly burdensome to PCH. We have discussed bur-densomeness in the context of garden-variety discovery and concluded:

In determining whether the discovery is unduly burdensome or expensive, the court may take into account “the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” A certain amount of inconvenience inheres in discovery and must be tolerated by the parties. Nonetheless, where the nature and complexity of the inquiry show compliance with the discovery request would require an unreasonable amount of time and an unreasonable expenditure of money, a protective order is appropriate.

Berg, 456 N.W.2d at 177 (quoting Iowa R. Civ. P. 121(c)(3)) (citations omitted).

In this consumer fraud case, as to which the legislature has granted plenary investigative powers to the attorney general, we believe the requirements for showing undue burden should be at least this high. As a federal court has said,

[s]ome burden on subpoenaed parties is to be expected and is necessary in furtherance of the agency’s legitimate inquiry and the public interest. The burden of showing that the request is unreasonable is on the subpoenaed party. Further, that burden is not easily met where, as here, the agency inquiry is pursuant to a lawful purpose and the requested documents are relevant to that purpose. Broadness alone is not sufficient justification to refuse enforcement of a subpoena. Thus courts have refused to modify investigative subpoenas unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business.

Texaco, 555 F.2d at 882 (citations omitted); accord FTC v. Invention Submission Corp., 965 F.2d 1086, 1090 (D.C.Cir.1992) (quoting Texaco), EEOC v. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir.1986) (“The party subject to the subpoena must show that producing the documents would seriously disrupt its normal business operations.”); Attorney General v. Bodimetric Profiles, 404 Mass. 152, 533 N.E.2d 1364, 1367-68 (1989) (“Documentary demands exceed reasonable limits only when they seriously interfere with the functioning of the investigated party by placing excessive burdens on manpower or requiring removal of critical records ... even when such a demand imposes considerable expense and burden on the investigated party.” (citations omitted)).

Here, the district court found the cost of compliance would be “just under $10,000” in addition to approximately $13,000 already spent in providing information. In light of the 1900 Iowans who have spent $1000 or more on PCH merchandise, or a total Iowa income for PCH exceeding $1.9 million, it is clearly not an undue burden in terms of expense to require compliance.

PCH also contends the process of obtaining the additional information would divert its management and staff from other essential business and delay the normal company operations. However, it has not been specific as to why with respect to the 1900 customers in question this presents a significant problem when PCH has already furnished information on many more customers using the same procedures to gather the information. Its claim that providing the subpoenaed information on its relatively few high-dollar customers would subject it to an undue burden is simply not persuasive.

The attorney general wants information on these customers spending over $1000 to assess the success of PCH’s remedial programs aimed at preventing elderly people from spending excessively on products they do not need, and probably will not use, in order to enhance their chances of winning the sweepstakes. We believe PCH has, as a matter of law, failed to carry its burden of showing that compliance with this subpoena would “threaten[ ] to unduly disrupt or seriously hinder normal operations of [its] business.” Texaco, 555 F.2d at 882. In short, PCH has failed to show that the information is not relevant or production of it is unduly burdensome. See Roadway Express, 397 N.W.2d at 510. The district court abused its discretion in concluding otherwise.

IV. The Trade Secret Issue.

The district court ruled that

PCH’s customer list and the other material provided to the Attorney General’s Office by PCH, including, without limitation, the range information disclosed by the Attorney General’s Office in its Application is a trade secret as defined in Iowa Code chapter 550.

The court therefore ordered that all information sought by the subpoena should be protected as trade secrets under Iowa Code chapter 550. The attorney general contends this ruling is overbroad and made without specific fact-findings or adequate proof because it merely recited the words of the statute defining trade secrets. See Iowa Code § 550.2(4).

PCH concedes the court did not make particularized fact-findings, but it argues there was adequate evidence to support the ruling. PCH contends the evidence was undisputed and was adequate for the court to have made such findings if it had done so. PCH contends the court had no obligation to repeat the undisputed facts. Moreover, PCH contends that the only materials the court was considering was the customer list and range information, so its otherwise broad ruling must be read as being limited to those items.

Because of the courts’ strong interest in the free flow of information on one hand and protection from commercial damage and abuse of discovery on the other, we have developed rules for resolving trade-secret cases. We have

insisted on “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements in order to establish good cause [for a protective order].”

State ex rel. Miller v. Nat’l Dietary Research, Inc., 454 N.W.2d 820, 823 (Iowa 1990) (quoting Farnum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983)).

In addition to specific demonstrations of fact, district courts are to apply three criteria for evaluating requests for a protective order under these circumstances: (1) the harm posed by dissemination must be substantial and serious, (2) the order must be narrowly drawn and precise, and (3) there must be no alternative means of protecting the public interest that intrudes less directly on expression. Farnum, 339 N.W.2d at 389-90.

We agree with the attorney general that the order here, merely tracking the language of the statute without particularized findings, presented facts that were merely stereotypical and conclusive, and thus insufficient. PCH did not present particular or specific facts to support its trade-secret claim by merely stating that the trade-secret status of the information was “self-evident.” Moreover, the court failed to apply the three-part test for the protective order as required by Famum.

For these reasons, we hold the court abused its discretion, in ordering the protective order on trade-secret grounds. We reverse and remand with instructions to the court to enforce the attorney general’s subpoena.

REVERSED AND REMANDED.