author: SABERS, Justice. ZINTER, Justice MEIERHENRY, Justice

text:
    2006 SD 58
    STATE of South Dakota, Plaintiff and Appellant, v. Arvin Allen AABERG, Defendant and Appellee.
    No. 23745.
    Supreme Court of South Dakota.
    Argued March 22, 2006.
    Decided June 28, 2006.
    Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Bryan G. Hall of Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Arvin Aaberg (Aaberg) was indicted on two counts of driving while under the influence of an alcoholic beverage, second offense. Aaberg made a motion to suppress all evidence, claiming law enforcement did not have reasonable suspicion to perform an investigatory stop. The magistrate court granted the motion and issued an order suppressing the evidence. The State appeals. We reverse.

FACTS

[¶ 2.] On January 2, 2005, at approximately 10:00 p.m., Sioux Falls Police Officer Nathan Kelderman, (Kelderman), was assisting another officer in taking a report for a stolen vehicle. Kelderman was sitting in his patrol car when a vehicle approached and started to turn into the parking lot of the Stoplight Lounge (the lounge). The vehicle was driven by Aa-berg. The city streets and the parking lot were covered with ice.

[¶ 3.] Aaberg did not appear to commit any traffic violations while pulling into the parking lot. Nor did he drive erratically or in a manner that indicated he was impaired. Kelderman continued to observe Aaberg after he parked his vehicle. Aa-berg exhibited a great deal of difficulty in attempting to exit his vehicle. He walked towards the entrance of the lounge at a very slow and cautious pace. Kelderman recalled that Aaberg’s pace was far slower and more deliberate than an average person on similar conditions. Aaberg held his arms away from his body in an effort to keep his balance. At one point, Aaberg almost fell on the pavement. Based on these observations, Kelderman believed that Aaberg was under the influence of “something.”

[¶ 4.] Kelderman stopped Aaberg before he reached the entrance of the lounge. Kelderman asked Aaberg if he had been drinking or if he had a medical condition. Aaberg responded by stating that he had a prosthetic leg. He also stated that he had consumed “some beer” earlier that day. Kelderman required Aaberg to accompany him to his patrol car. Kelderman then called another officer for assistance in investigating whether Aaberg was under the influence of alcohol. No field sobriety tests were performed on account of Aa-berg’s disability and the icy conditions. At the conclusion of the investigation, Aaberg was arrested for driving under the influence of alcohol.

[¶ 5.] Aaberg was indicted on two counts of driving under the influence, second offense. Prior to trial, Aaberg made a motion to suppress all evidence obtained as a result of the investigatory stop. A hearing was held before the magistrate court on April 7, 2005.

[¶ 6.] Kelderman and the officer who assisted him were the only individuals who testified at the hearing. The State argued that the totality of the circumstances gave Kelderman a reasonable belief that criminal activity was afoot. Aaberg, on the other hand, argued that it was unconstitutional to allow law enforcement to stop an individual simply because he was having difficulty walking on the ice.

[¶ 7.] The magistrate court ruled in favor of Aaberg and ordered the evidence suppressed. The court found that Kelder-man did not set forth specific, articulable facts that provided reasonable suspicion to stop Aaberg. The State raises the following issue:

Whether Kelderraan had reasonable suspicion to stop Aaberg.

Standard of Review

[¶ 8.] A motion to suppress based on an alleged violation of a constitutional right is reviewed de novo. State v. Kottman, 2005 SD 116, ¶ 9, 707 N.W.2d 114, 118 (citing State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319). The magistrate court receives no deference for legal conclusions. Id. The court’s factual determinations are reviewed under the clearly erroneous standard. State v. Mattson, 2005 SD 71, ¶ 14, 698 N.W.2d 538, 544-45 (citing State v. De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d 683, 685). “Once the facts have been determined, however, the application of a legal standard to those facts” is fully reviewable by this Court. Id. (citing De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d at 685).

Decision

[¶ 9.] The Fourth Amendment to the United States Constitution and Article VI, section 11 of the South Dakota Constitution protect individuals from unreasonable searches and seizures. The United States Supreme Court has held that individuals are entitled to Fourth Amendment protection when engaging in common functions such as walking down a city street. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) (noting that the Fourth Amendment “right of personal security belongs as much to the citizens on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs”). Generally, probable cause must exist before law enforcement is permitted to seize an individual. Id. at 15-19, 88 S.Ct. at 1876-8, 20 L.Ed.2d 889. However, this Court and the United States Supreme Court has recognized “the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.” State v. Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d 837, 840 (quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). If an officer is to avail himself of the exception set forth in Terry, he must demonstrate that prior to seizing the suspect, he had reasonable suspicion that criminal activity may be afoot. Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d 889.

[¶ 10.] Articulating a precise definition of reasonable suspicion is “not possible.” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996). Instead, the United States Supreme Court has described reasonable suspicion “as a particularized and objective basis for suspecting the person stopped of criminal activityf.]” Id. at 696, 116 S.Ct. at 1657,134 L.Ed.2d 911. Reasonable suspicion is a “common sense, nontechnical concep[t] that deal[s] with the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.” Id. at 696, 116 S.Ct. at 1657, 134 L.Ed.2d 911 (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)) (additional citations omitted). The inquiry into whether reasonable suspicion exists is fact sensitive; each case is to be decided on its own facts and circumstances. Id. at 696,116 S.Ct. 1657,134 L.Ed.2d 911.

[¶ 11.] Reasonable suspicion is a less demanding standard than probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). As this Court explained:

[w]hile the stop may not be the product of mere whim, caprice or idle curiosity, it is enough that the stop is based upon “specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.”

Mattson, 2005 SD 71, ¶ 30, 698 N.W.2d at 548.

[¶ 12.] In the present case, the magistrate court found that Kelderman had failed to sufficiently articulate the facts on which he based his suspicion. As a result, the court held that Kelderman was acting on a mere whim or out of idle curiosity. In its findings of fact, the court found that Aaberg did not “weave, stumble, or fall down.” Additionally, the court concluded that Kelderman’s suspicion was based solely “on Mr. Aaberg’s difficulty exiting his vehicle and walking towards the establishment.” The court did not make any credibility determinations.

[¶ 13.]We do not find any of the court’s findings of fact clearly erroneous. However, Kelderman’s testimony set forth specific facts which taken together, supported an investigatory stop of Aaberg. Kelderman testified that Aaberg was walking far slower than a normal person would on similar conditions. Kelderman also observed Aa-berg having great difficulty keeping his balance. Most of Kelderman’s observations were articulated during the following exchange with defense counsel:

Q: Would you admit, sir, that as far as the explanation or a definition of the great difficulty in walking as you described it in your police report and in your grand jury testimony; would it be fair to say that his left leg would be sliding out away from him, and he’d have to hold his arms out to balance himself; would that be an accurate description?
A: Yes.
Q: So, you’d admit that he wasn’t stumbling, or staggering, or weaving, or anything like that; is that correct?
A: Staggering is a relative term. I’d say he probably was staggering a little bit to my estimation.
Q: But there was not stumbling, he didn’t fall down? Correct?
A: He came close to falling down, but he did not fall down.

Kelderman concluded that it was more than icy conditions and that Aaberg was under the influence of “something.” As mentioned, the magistrate court did not find Kelderman’s testimony to be incredible. Instead, the court based its ruling on Kelderman’s inability to state specific and articulable facts justifying his suspicion. The court did make a finding that Aaberg did not “weave, stumble, or fall down.” However, the court’s findings did not address Kelderman’s testimony that Aaberg staggered, held his arms out to keep his balance, came close to falling down, and walked slower than a normal person would under similar conditions.

[¶ 14.] The latter facts, coupled with the fact that Aaberg was walking into a bar during late evening hours, provide a specific and articulable basis by which a reasonable police officer could suspect Aa-berg of being under the influence of alcohol. Thus, it was not unreasonable for Kelderman to conduct an investigatory stop of Aaberg in an effort to confirm or dispel the suspicions. We have the benefit of knowing now that some of Aaberg’s conduct was due to his disability. However, Kelderman did not know of the prosthesis at the time of the seizure and that is the relevant time in determining reasonableness.

[¶ 15.] Although this is a close case, we do not agree with the magistrate court that Kelderman acted on a mere whim, hunch, or out of idle curiosity. Kelderman presented specific and articulable facts which taken together with rational inferences from those facts, reasonably warranted the seizure.

[¶ 16.] Reversed.

[¶ 17.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 18.] ZINTER, Justice, concurs specially.

[¶ 19.] MEIERHENRY, Justice, dissents.

ZINTER, Justice

(concurring specially).

[¶ 20.] I join the opinion of the Court. I write only to address the dissent’s conclusion “that the officer did not present reasonable, articulable suspicion to seize Aaberg and that the officer acted on ‘mere whim, caprice, or idle curiosity.’” Infra ¶ 31. The dissent arrives at this conclusion because it applies the incorrect standard of review; fails to consider material, historical facts contained in the record; and fails to follow precedent requiring a consideration of the totality of the circumstances.

[¶21.] The dissent’s clearly erroneous standard of review is inapplicable in this case. It is inapplicable because there are no credibility or evidentiary conflicts in the material facts justifying this stop. Only one witness testified concerning the historical facts justifying the initial stop, and there is no conflict regarding those facts. In reviewing a similar attempt to apply the clearly erroneous standard of review, the United States Supreme Court held that in this type of case “the ultimate question ... of reasonable suspicion ... should be reviewed de novo. ” Ornelas v. U.S., 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911, 916 (1996). It is only the historical facts that are entitled to clear error analysis. Id. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d at 920; see also U.S. v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 751, 151 L.Ed.2d 740, 750 (2002) (stating that the standard for appellate review of reasonable-suspicion determinations should be de novo). The Supreme Court explained:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”

Ornelas, 517 U.S. at 696-97, 116 S.Ct. at 1661-62, 134 L.Ed.2d at 919 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1791 n. 19, 72 L.Ed.2d 66, 80 n. 19 (1982)).

[¶ 22.] Since 1999, this Court has followed these authorities and applied the de novo standard of review in cases like this where the historical facts are not in dispute:

Today we modify our standard for reviewing decisions on warrantless searches and seizures. Our past standard — abuse of discretion — conflicts with the current Fourth Amendment analysis employed by the United States Supreme Court. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id. at 699, 116 S.Ct. at 1663.

State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. See also State v. Muller, 2005 SD 66, ¶ 12, 698 N.W.2d 285, 288 (de novo review of reasonable suspicion); State v. Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d 718, 722 (same); State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (same). Because only one witness testified concerning the justification for the stop, and because there is no conflicting evidence regarding those historical facts, the clearly erroneous standard of review does not apply.

[¶ 23.] The dissent also-holds that the magistrate judge was not required-to make findings on a number of relevant historical facts. Thus, the dissent concludes that the magistrate was not required to even mention or analyze the undisputed facts “that Aaberg staggered, held his arms out to keep his balance, came close to falling down,- and walked slower than a normal person.” Infra ¶ 29. The reasoning used to justify this rather remarkable position is that factfinders are not “required ... to enunciate [their] opinion on the credibility and weight of each answer of a witness.” Id. The dissent also surmises that the fact-finder failed to even consider these relevant facts because she “apparently” “did not find persuasive the officer’s testimony that Aaberg ‘probably was staggering a little bit.’ ” Infra ¶ 30. However, there was no adverse credibility finding with respect to the officer, and there was no conflicting evidence concerning the officer’s observation of substantial evidence of impairment. Therefore, even.if we were to apply the clearly erroneous standard of review, the magistrate’s decision, which fails to even acknowledge such relevant evidence, demonstrates clear error.

[¶ 24.] The dissent concedes this point, acknowledging that the application of the clearly erroneous standard requires consideration of “the entire record.” Infra ¶27 (citing State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637). See also Even v. City of Parker 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674 (“Clear error exists only when upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made.”) (emphasis added); Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 7, 575 N.W.2d 225, 229 (“Even when substantial evidence supports a finding, reviewing courts must consider the evidence as a whole and set it aside if they are definitely and firmly convinced a mistake has been made.”) (emphasis added). Yet the dissent would affirm a decision that makes no mention of the driver’s problems of staggering, balancing, walking, and almost falling. Because there is no indication that these material and relevant facts were even considered in the magistrate’s analysis, there is clear error as a matter of law. Stokes v. Christenson, 51 S.D. 365, 213 N.W. 950, 950 (1927) (finding error where material and competent evidence was not considered). See also Sather v. C.I.R., 251 F.3d 1168, 1178 (8thCir.2001) (reversing for declining to consider pertinent facts); Van Scoten v. C.I.R., 439 F.3d 1243, 1252 (10thCir.2006) (stating that the lower court’s factual findings may be reversed “for clear error when it fails to consider relevant, contrary and undisputed evidence that is material”).

[¶ 25.] Finally, the dissent itself errs in failing to consider the defendant’s staggering, difficulty in balancing, almost falling, and walking differently than a normal person under similar circumstances. The dissent’s rationale for failing to consider these material facts is that we only need to consider the “facts, as determined by the magistrate.” Infra ¶ 28. However, this approach violates the well settled requirement that, in making a reasonable suspicion determination, we must “[l]ook at the ‘totality of the circumstances’ of each ease to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” State v. Kenyon, 2002 SD 111, ¶ 15, 651 N.W.2d 269, 273-74 (quoting Arvizu, 534 U.S. at 273, 122 S.Ct. at 750-51, 151 L.Ed.2d at 749 (quoting United, States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628-29 (1981))). See also State v. Scholl, 2004 SD 85, ¶ 9, 684 N.W.2d 83, 86 (“Whether an anonymous tip suffices to give rise to reasonable suspicion depends on both the quantity of information it conveys as well as the quality, or degree of reliability, of that information, viewed under the totality of the circumstances.”).

[¶ 26.] The totality of the evidence in this case comes from one witness who testified without contradiction “that Aa-berg staggered, held his arms out to keep his balance, came close to falling down, and walked slower than a normal person would under similar circumstances” as he walked from his car to the bar at 10:00 p.m. that evening. See supra ¶ 13 and infra ¶ 29. As the majority points out, these undisputed facts, taken together with the rational inferences drawn therefrom, unquestionably established a particularized and objective basis for a reasonable suspicion to believe that Aaberg was under the influence. Therefore, considering the totality of the evidence in the record under either standard of review, the magistrate erred in concluding that the officer did not have reasonable suspicion to perform the initial limited stop of Aaberg.

MEIERHENRY, Justice

(dissenting).

[¶ 27.] In 1999 in State v. Himing, we set forth the standard of review of a lower court’s determination of reasonable suspicion and probable cause as follows:

We review fact findings under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.... “[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”

1999 SD 53, ¶ 8-9, 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), and abandoning the abuse of discretion standard in light of Ornelas) (other citations omitted). Thus, our review starts with the magistrate court’s findings of fact and an inquiry as to whether the findings are clearly erroneous. We have said:

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. This Court’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court’s decision.

State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637 (citations omitted) (emphasis added).

[¶ 28.] In applying this standard, the majority first determines that the magistrate’s findings of fact are not clearly erroneous. I agree. The majority then determines that the facts are sufficient to constitute reasonable suspicion. This is where I disagree with the majority. The facts, as determined by the magistrate, do not constitute reasonable suspicion as a matter of law. Observing a person having difficulty walking on an icy parking lot toward a bar at 10:00 p.m. without any indication of impaired driving does not constitute reasonable suspicion as a matter of law. The way the majority reaches that conclusion is by substituting its spin on the transcribed testimony of the arresting officer. To reverse the magistrate’s decision, the majority focuses on one equivocal answer by the officer to a question asked by the defense. The officer agreed that Aaberg’s left leg was “sliding out away from him” and that he had “to hold his arms out to balance himself.” However, when asked, “So, you’d admit that he wasn’t stumbling, or staggering, or weaving, or anything like that,” the officer gave the following ambivalent answer: “Staggering is a relative term, I’d say he probably was staggering a little bit to my estimation.” (Emphasis added). In weighing the evidence and judging the credibility of the testimony, the magistrate disregarded the officer’s statement concerning staggering and found as follows:

5. Officer Kelderman observed Mr. Aa-berg disembark from the vehicle and slowly walk approximately 30 feet on the very icy surface with great difficulty towards the front doors of the Stoplight Lounge.
6. Officer Kelderman did not observe Mr. Aaberg weave, stumble, or fall down.

[¶ 29.] The majority determines that because the magistrate did not make a specific finding that Officer Kelderman’s testimony was not credible, she should have made an additional finding “that Aa-berg staggered, held his arms out to keep his balance, came close to falling down, and walked slower than a normal person.” We have never required a factfinder to enunciate her opinion on the credibility and weight of each answer of a witness, as the majority seems to suggest here. We have consistently deferred to the factfin-der because of the factfinder’s advantage of seeing and hearing the witnesses and therefore being in a better position to weigh the evidence and credibility of a particular answer in light of all the testimony. Enhancing the magistrate’s findings based on the cold record seems inappropriate given our clearly erroneous standard of review.

[¶ 30.] In addition to findings 5 and 6 referenced above, the magistrate also made the following findings regarding the officer’s observations:

3. The Officer Kelderman did not observe any signs of impaired driving.
4. The surface conditions, for both the city streets and parking lot, were very icy.
7. Based solely on Mr. Aaberg’s difficulty exiting his vehicle and walking towards the establishment, Officer Kelderman concluded that Mr. Aa-berg was under the influence of “something.” Officer Kelderman was not performing his community caretaker role; he had already concluded prior to seizing Mr. Aaberg that he was under the influence of “something.”

Based on a review of the record, I am not left with a definite and firm conviction that any of the magistrate’s findings were clearly erroneous. All conflicts in the evidence must be resolved in favor of the magistrate’s findings. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d at 637. Apparently, the magistrate did not find persuasive the officer’s testimony that Aaberg “probably was staggering a little bit.” Further, that statement by the officer does not render clearly erroneous the magistrate’s finding of fact that “Officer Kelder-man did not observe Mr. Aaberg weave, stumble, or fall down.”

[¶ 31.] The record here contains evidence to support the magistrate court’s findings, and we should not disturb the findings of fact on appeal. Further, we must “give due weight to inferences drawn from those findings” by the magistrate court. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d at 603 (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d 911). Therefore, based on the findings of fact and the inquiry as to whether those facts constitute reasonable suspicion, I would affirm the magistrate’s conclusion of law that the officer did not present reasonable, articulable suspicion to seize Aaberg and that the officer acted on “mere whim, caprice, or idle curiosity.”

      . Aaberg was indicted on violations of SDCL 32-23-1(1) and (2).

      . Ordinarily, a direct appeal cannot be taken from magistrate court. See State v. Sckwaller, 2006 SD 30, 712 N.W.2d 869. However, a statutory exception exists in SDCL 23A-32-5 when the prosecution is appealing from orders suppressing evidence, orders requiring the return of seized property in a criminal case, or orders sustaining a motion to dismiss a complaint on statutory grounds or otherwise.

      . The State does not argue nor dispute that Aaberg was “seized” within the meaning of the Fourth Amendment.

      . Among other things, the officer testified:
      (1) he "observed [Aaberg] exhibit signs that he had great difficulty getting out of the vehicle, and that he was very slow...."
      (2) in walking, "[Aaberg] was very slow compared to a gait of a person even on those conditions and just the total way he was walking was apparent to me that I felt he was under the influence of something.”
      (3) there were "signs that he couldn't keep his balance very well while he was walking-”
      (4) Aaberg's "left leg would be sliding out away from him, and he’d have to hold his arms out to balance himself....”
      (5) Aaberg "probably was staggering a little bit to my estimation.”
      (6) Aaberg "came close to falling down, but he did not fall down.”


source: Caselaw Access Project

author: MEIERHENRY, Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 61
    Kirk JENSEN, Petitioner and Appellant, v. LINCOLN COUNTY BOARD OF COMMISSIONERS and the Lincoln County Planning and Zoning Commission, Respondents and Appellees.
    Nos. 23865, 23887.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2006.
    Decided July 5, 2006.

      James G. Abourezk of Abourezk Law Offices, P.C., Sioux Falls, South Dakota, Attorney for petitioner and appellant.
    Thomas R. Wollman, Lincoln County State’s Attorney, Michael F. Nadolski, Lincoln County Deputy State’s Attorney, Sioux Falls, South Dakota, Attorneys for respondents and appellees.
   MEIERHENRY, Justice.

[¶ 1.] Kirk Jensen (Jensen) sought a writ of mandamus against the Lincoln County Planning and Zoning Commission (Planning Commission) and Lincoln County Board of County Commissioners (Board) to compel enforcement of a zoning ordinance. The circuit court denied Jensen’s petition. Jensen appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Jensen’s family farm and residence abuts the feedlot of his neighbor, Darwin Hazel (Hazel). Jensen and Hazel have been farming side by side since 1987. Hazel has been farming and feeding cattle with his father at the site since 1972. The distance between. Jensen’s residence and Hazel’s feedlot is approximately 150 feet. Hazel has operated the feedlot at this location for the last thirty years.

[¶ 3.] In May of 2005, Hazel applied for a conditional use permit for a Class D concentrated animal feeding operation (CAFO) from the Planning Commission. The Planning Commission approved the application and granted Hazel a conditional use permit for the feedlot. Because of the close proximity of the feedlot to Jensen’s residence, Jensen challenged the permit by appealing to the Board. Jensen claimed that the feedlot did not meet the zoning setback requirements. The Board rejected Jensen’s challenge and affirmed the Planning Commission’s decision.

[¶ 4.] Subsequent to the Board’s decision, Jensen sought a writ of mandamus in circuit court. The application for the writ named as respondents both the Planning Commission and the Board (collectively County). Jensen sought to compel the County to enforce the zoning setback provisions for the feedlot. Jensen claimed that Hazel’s proposed feedlot use constituted an expansion of a nonconforming use and that it did not meet the CAFO setback requirement. He asked the circuit court to compel the County either to enforce the setback ordinance or to deny Hazel’s conditional use permit. After a hearing on the matter, the circuit court denied the writ of mandamus. Jensen appeals and presents two issues for our review: (1) whether the circuit court abused its discretion in denying Jensen’s application for a writ of mandamus, and (2) whether the circuit court erred in denying Jensen’s motion for rehearing. The County also presents one issue for our review: whether the availability of a plain, speedy, and adequate remedy in the ordinary course of the law precludes issuance of a writ of mandamus.

DECISION

Plain, Speedy, and Adequate Remedy at Law

[¶ 5.] A writ of mandamus is appropriate only when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Black Hills Cent. R.R. v. City of Hill City, 2003 SD 152, ¶ 12, 674 N.W.2d 31, 34; see also SDCL 21-29-2. Consequently, the threshold question, raised by the County, is whether a mandamus action was available to Jensen. The County claims that he had a plain, speedy, and adequate remedy at law which precluded mandamus relief. Jensen’s remedy, the County contends, is limited to an appeal to circuit court under the procedures set forth in SDCL 7-8-27, 7-8-29, and 7-8-30. The County points to the language of SDCL 7-8-32, which provides as follows:

Appeal to the circuit court from decisions of the board of county commissioners, as provided in this chapter, is an exclusive remedy. Judicial review of county commission action shall be allowed only as provided in §§ 7-8-27, 7-8-28, 7-8-29, 7-8-30, and 7-8-31.

Citing Kirschemnan v. Hutchinson County Board of Commissioners and Vitek v. Bon Homme County Board of Commissioners, the County urges the Court to limit the mandamus remedy against a County to the referendum process. See Kirschenman, 2003 SD 4, 656 N.W.2d 330 (finding that mandamus was appropriate to compel the submission of a conditional use permit to a referendum despite the exclusive remedy provisions of SDCL ch. 7-8); Vitek, 2002 SD 45, 644 N.W.2d 231 (holding that the exclusive remedy provisions of SDCL ch. 7-8 did not preclude the submission of a zoning decision to a referendum).

[¶ 6.] An examination of the statutory provisions, however, does not lead us to the conclusion advanced by the County. In fact, in both Chapter 7-8 and Chapter 11-2, the Legislature recognized mandamus as a remedy when appealing from a decision of a board of county commission. In Chapter 11-2 (County Zoning), the Legislature specifically gave a taxpayer the right to bring a mandamus proceeding against “the proper official or officials” in order “to compel specific performance ... of any duty required by” the state zoning laws or county ordinances. SDCL 11-2-35. In its entirety, the statute specifies:

Any taxpayer of the county may institute mandamus proceedings in circuit court to compel specific performance by the proper official or officials of any duty required by this chapter and by any ordinance adopted thereunder.

SDCL 11-2-35.

[¶ 7.] Likewise, in Chapter 7-8, the Legislature recognized mandamus as a remedy when decisions are appealed to circuit court. See SDCL 7-8-31. The Legislature generally provided that “all decisions of the board of county commissioners upon matters properly before it” can be appealed to circuit court. SDCL 7-8-27. The Legislature also specified in SDCL 7-8-31 that when considering an appeal from a board of county commissioners, the circuit court may grant a mandamus. The statute provides:

The circuit court may make a final judgment and cause the same to be executed or may send the same back to the board of county commissioners with an order how to proceed, and require such board to comply therewith by mandamus or attachment as for contempt.

SDCL 7-8-31 (emphasis added).

[¶ 8.] Additionally, the legislative history of SDCL 11-2-35 indicates the Legislature intended mandamus as an available remedy in appeals from county zoning decisions. When enacted, the mandamus provision found in SDCL 11-2-35 was part of a larger reenactment bill “to establish County Planning Commissions, providing for their operation, the preparation of a comprehensive plan and the implementation thereof’ which was passed by the South Dakota Legislature in 1967. See 1967 SD Laws ch 20. The provision now codified as SDCL 11-2-35 appeared as the last paragraph of the bill’s final section entitled, “Enforcement.” Id. This provision remains unchanged from its original version.

[¶ 9.] Consequently, the County’s claim that a writ of mandamus cannot be used to challenge a county commission zoning decision is without merit. The Legislature in SDCL 11-2-35 clearly gave taxpayers the right to seek mandamus relief against county officials when the officials fail to perform duties required by the zoning ordinances. Jensen’s application for a writ of mandamus conformed to the language of SDCL 11-2-35. He asserted that the Planning Commission failed to enforce the mandates of the Lincoln County Zoning Ordinances. He further sought to compel the Planning Commission to perform its duties as established by the ordinances. Therefore, the circuit court did not err by considering the application on its merits and we proceed to review that decision.

Mandamus

Clear Duty to Act

[¶ 10.] We have repeatedly reiterated the narrow application of a writ of mandamus. Mandamus is appropriate only if the petitioner can demonstrate a “ ‘clear legal right to performance of the specific duty sought to be compelled’ ” and the respondent has “ ‘a definite legal obligation’ ” to perform that duty. Sorensen v. Sommervold, 2005 SD 33, ¶ 6, 694 N.W.2d 266, 268 (citation omitted). We have stated,

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.

Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. Therefore, mandamus is appropriate only when the duty to act is unequivocal. Because a writ of mandamus is an extraordinary remedy granted only under exceptional circumstances, “entitlement must also be indisputable and clear.” Id. ¶ 7, 575 N.W.2d at 243; see also Black Hills C. R.R., 2003 SD 152, ¶ 13, 674 N.W.2d 31 at 34 (“a writ [of mandamus] will be issued only where the duty to act is clear”). We review a circuit court’s grant or denial of an application for writ of mandamus under the abuse of discretion standard. Bechen v. Moody County Bd. of Comm’rs, 2005 SD 93, ¶ 9, 703 N.W.2d 662, 664. A circuit court abuses its discretion if its decision is clearly against reason and evidence. Id.

County’s Duty under the Zoning Ordinances

[¶ 11.] If the County has a specific duty to act, that duty must be apparent in state law and/or local zoning ordinances. Consequently, whether the County had a duty to deny Hazel’s conditional use permit is controlled by the provisions in the zoning laws and ordinances. The Legislature, with restrictions, has delegated zoning authority to counties. See generally SDCL ch. 11-2. Pursuant to that authority, Lincoln County enacted a comprehensive zoning plan in 1995. In 2002, the County revised the section dealing with livestock confinement facilities and feedlots, effective March 2003. Pursuant to state law, the County has a duty to administer and enforce its own zoning ordinances. See SDCL 11-2-25 (“The board [of county commissioners] shall provide for the enforcement of the provisions of this chapter and of ordinances, resolutions, and regulations made thereunder”). It also has a duty to specify in its ordinances “each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, and the criteria for evaluating each conditional use.” SDCL 11-2-17.3.

[¶ 12.] Additionally, the Legislature limited the application of zoning ordinances for preexisting uses. See SDCL 11-2-26. The Legislature allowed preexisting uses to continue as follows:

Any lawful use, lot, or occupancy of land or premises existing at the time of the adoption of the zoning ordinance may be continued, even though the use, lot, or occupation does not conform to the provisions of the ordinance. However, if the nonconforming use, lot, or occupancy is discontinued for a period of more than one year, any subsequent use, lot, or occupancy of the land or premises shall conform with the zoning ordinance.

SDCL 11-2-26. Following the legislative directive, the Lincoln County Zoning Ordinances in Article 15 set forth the circumstances under which preexisting uses are to continue.

[¶ 13.] Likewise, both state law and county zoning ordinances define the nature of a conditional use. The Legislature defines “conditional use” as follows:

[A]ny use that, owing to certain special characteristics attendant to its operation, may be permitted in a zoning district subject to the evaluation and approval by the approving authority specified in § 11-2-17.3. A conditional use is subject to requirements that are different from the requirements imposed for any use permitted by right in the zoning district.

SDCL 11-2-17.4. Additionally, the Legislature requires that before approving or disapproving a conditional use request, “[t]he approving authority shall consider the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning districts.” SDCL 11-2-17.3. The Lincoln County Zoning Ordinances define a “conditional use,” as “[a] use that would not be appropriate generally or without restriction throughout the zoning district, but which if controlled, would promote the public health, safety and welfare.”

[¶ 14.] The county ordinances recognize a CAFO as a conditional use for which a permit is required. The relevant ordinance defines a CAFO as follows:

Concentrated, Animal Feeding Operation. A lot, yard, corral, building or other area where animals have been, are, or will be stabled or confined for a total of 45 days or more during any 12 month period, and where crops, vegetation, forage growth, or post harvest residues are not sustained over any portion of the lot or facility. Two or more animal feeding operations under common ownership are single animal operations if they adjoin each other, or if they use a common area, or if they use a common area or system for disposal of manure.

The ordinances provide for four classes of CAFOs based upon the animal unit ratio. Each class of CAFO must meet specific requirements as to waste management, distance separation, and other management controls. The permit that Hazel sought was for a Class D CAFO. A Class D CAFO consists of an animal unit ratio of 200 to 499 head of cattle.

[¶ 15.] There is no dispute that Hazel’s application for a Class D CAFO meets all of the criteria for a conditional use permit except one. A Class D CAFO must be located at least 0.25 mile from a neighbor’s dwelling. Hazel’s CAFO is located closer than the 0.25 mile distance requirement. Since the feedlot does not meet the setback criterion, Jensen claims that the County has no authority to grant the conditional use permit. The County claims that the feedlot does not need to meet the setback criterion because the feedlot is a preexisting use and, therefore, exempt. Consequently, the County claims it has no duty to enforce that provision of its ordinances.

Hazel’s Status as Preexisting Use

[¶ 16.] It appears that the parties generally agree that Hazel used the property as a feedlot before the adoption of the zoning ordinances and that Hazel could have continued to use the property in the same manner without a permit as long as he did not expand its use. For reasons not apparent from the record, however, Hazel sought a conditional use permit. His application sufficiently proved that he met all criteria except for the setback requirement. Jensen argues that because Hazel applied for the permit, the County had a duty to deny the permit or require the setback. Under Jensen’s premise, although the County had no duty to require Hazel to move his preexisting feedlot, the County acquired a duty to do so when Hazel applied for a conditional use permit.

[¶ 17.] Jensen further claims that Hazel has expanded the feedlot since- the time the ordinance was adopted in 1995. Therefore, Jensen claims that the expanded feedlot should be characterized as a “nonconforming use” and be subject to the regulations governing nonconforming uses in Article 14 of the ordinances. Section 1405, “Extension and Enlargement,” requires the County to consider certain criteria before granting a conditional use permit to a nonconforming use. However, Jensen’s interpretation of what constitutes an enlargement is contrary to what the County considers an enlargement. Jensen claims that any increase in the number of cattle constitutes an enlargement. Consequently, Jensen claims that Hazel needed to show the exact number of cattle he had in the feedlot on July 25, 1995 — the date the ordinances were adopted. The County claims that an enlargement is determined by ranges and that as long as the number of cattle was within the range of a Class D CAFO (200-499), the feedlot was not enlarged.

[¶ 18.] The circuit court agreed with the County. Based on the evidence, the court determined that Hazel had owned and operated his feedlot prior to July 25, 1995. The court further found that, “over the last thirty years,” the number of cattle in the feedlot ranged from “as few as 100 head of cattle and as many as 500 head of cattle.” Thus, the circuit court concluded that Hazel’s feedlot was a preexisting use which had not been enlarged.

[¶ 19.] Having determined that Hazel’s feedlot was an unenlarged preexisting feedlot, the court determined that the duty of the County was governed by the ordinance on preexisting uses. The preexisting use ordinance, Section 1509, provides as follows:

Preexisting Uses. An existing use eligible for a Conditional Use permit which was lawfully established on the effective date of this Ordinance shall be deemed to have received a Conditional Use permit as herein required and shall be provided with such permit by the County upon request, and it shall not be a nonconforming use; provided, however, for any enlargement, extension, or relocation of such existing use, an application in accordance with this Article shall be required.

The court concluded that since Hazel was not expanding or enlarging his feedlot, Section 1509 required the County to grant Jensen a conditional use permit. The court held that Hazel’s feedlot was a preexisting use which was lawfully established at the time the ordinances became effective. Even though the feedlot did not comply with the 0.25 mile setback requirement, the court held that the feedlot’s status as a preexisting use mandated that Hazel receive a conditional use permit.

[¶ 20.] We agree with the circuit court. Although the ordinances are not a model of clarity, the plain meaning of Section 1509 supports the court’s conclusion. Since Hazel’s feedlot is located in a district zoned for agriculture, it is eligible for a conditional use permit for a CAFO. As an established lawful feedlot eligible for a Conditional Use permit before the adoption of the ordinance, the feedlot is “deemed to have received a Conditional Use permit ... and shall be provided with such permit by the County upon request.” The ordinance clearly directs that “it shall not be a nonconforming use.” Only if the use is enlarged, extended, or relocated does it become a nonconforming use subject to an application for a conditional use permit. The circuit court’s finding that the feedlot had not been enlarged is not clearly erroneous, and the court has not misapplied the law. Consequently, the argument that Hazel’s feedlot is a nonconforming use is without merit.

Writ of Mandamus Unavailable

[¶ 21.] As presented to the circuit court, Jensen has not established that he has “a clear legal right” to compel the County to deny Hazel’s permit or require the setback. Nor has Jensen shown that the County has a specific duty to require Hazel’s preexisting feedlot to abide by the setback criteria. Without such a showing, the narrow, precise remedy of mandamus is unavailable.

Rehearing

[¶ 22.] There was some confusion at the hearing about the effective date of the ordinances establishing the requirements for different classes of CAFOs. Consequently, some of the testimony dealt with a March 2003 date rather than the correct date of July 1995. After the hearing, but prior to the court’s decision, the attorney for the County sent a letter to the circuit court clarifying the date. In response, Jensen moved for a rehearing. The circuit court denied the rehearing motion. The record indicates that the correct date was presented as part of the testimony, and the circuit court had a copy of the ordinances with the correct date clearly shown. More importantly, the circuit court’s findings of fact indicate that the court did view the evidence in light of the correct effective date. The court found: “Prior to July 25, 1995, Darwin Hazel owned and operated a feedlot for cattle.” (Emphasis added). Also, the circuit court specifically indicated that the 1995 Revised Zoning Ordinance for Lincoln County became effective on July 25,1995.

[¶ 23.] On appeal, Jensen claims that the circuit court erred by not granting a rehearing. We have described a motion to reconsider as “ ‘an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.’ ” People ex rel. S.M.D.N., 2004 SD 5, ¶ 7, 674 N.W.2d 516, 517 (citation omitted). The same reasoning applies to a motion for a rehearing. The circuit court declined Jensen’s request, and we will not second guess the court’s decision. It appears the judge had all the information he needed to make a decision. Consequently, this issue is without merit.

[¶ 24.] Affirmed.

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

[f 26.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 27.] I concur with the majority opinion that the County was under no duty to require Hazel to move his feedlot. However, the majority opinion incorrectly concludes the feedlot is a preexisting use that is “deemed to have received a Conditional Use permit.” I dissent because although existing, Hazel’s feedlot is not “eligible for a Conditional Use permit.”

[¶ 28.] Section 1509 of the zoning ordinance defines preexisting use:

Preexisting Uses. An existing use eligible for a Conditional Use permit which was lawfully established on the effective date of this Ordinance shall be deemed to have received a Conditional Use permit as herein required and shall be provided with such permit by the County, upon request, and it shall not be a nonconforming use; provided, however, for any enlargement, extension, or relocation of such existing use, an application in accordance with this Article shall be required.

(emphasis added). In order for Hazel to receive a conditional use permit based on existing use, he must show that his property was lawfully established as a feedlot on or prior to the effective passage date of the ordinance and that the feedlot is “eligible for a conditional use permit.” This cannot be done because the minimum distance requirement is 1320 feet and the County concedes Hazel’s feedlot is only 150 feet from Jensen’s house.

[¶ 29.] Hazel’s use of his land predates the zoning ordinance. The use of his property as a feedlot, however, is not “eligible for a Conditional Use permit” because it is not one quarter mile from Jensen’s dwelling as required by the conditional use permit criteria for a class D CAPO. Thus, contrary to the circuit court and majority opinion, Hazel was not eligible for a conditional use permit.

[¶ 30.] Nonconforming uses are defined as:

A use of land, buildings, or premises that lawfully existed prior to the adoption, revision or amendment of this Ordinance (in any relevant particulars), but which fails, by reason of any such adoption, revision or amendment, to conform to the present use restrictions or regulations of the zoning district in which it is located.

Hazel’s feedlot meets the definition of a nonconforming use: use of land that lawfully existed prior to the ordinance but fails to conform to present use restrictions or requirements.

[¶ 31.] The County is not under a clear duty to require Hazel to comply with the quarter mile restriction because Section 1402 and 1403 of Article 14 on nonconforming use provides:

Section 1402. Continuation of Use. Subject to the provisions of this Article, the lawful use of a premise, lawfully established and existing immediately prior to the effective date of this Ordinance may be continued although such use does not conform to the provisions hereof.
Section 1403. Use becoming nonconforming by change in Law or boundaries. Whenever the use of a premises becomes a nonconforming use through a change in zoning ordinance or district boundaries, such use may be continued, although the use does not conform to the provisions of this Ordinance, as then applied.

Both sections permit Hazel to continue to use his property as a feedlot despite the fact it does not conform to the ordinance. The use of his property as a feedlot is grandfathered under these nonconforming use sections.

[¶ 32.] Jensen argues that Hazel im-permissibly expanded his nonconforming use and, as a result, the County must comply with the provisions of Section 1405. See Majority Opinion fn. 4. However, Jensen’s argument fails because he has made no showing Hazel expanded the feedlot.

[¶ 33.] In summary, the County is under no duty to require Hazel to move his feedlot because it is a lawful nonconforming use. However, Hazel is not entitled to a conditional use permit because the existing use of his property is not eligible for a conditional use permit. Accordingly, I dissent and would compel the County to deny Hazel’s conditional use permit.

      . SDCL 7-8-27 provides:
      From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein.

      . Section 13 of the Act read in its entirety as follows:
      Section 13. Enforcement. The board shall provide for the enforcement of the provisions of this Chapter and of ordinances, resolutions, and regulations made thereunder, and may impose enforcement duties on any officer, department, agency, or employee of the County.

        It is declared unlawful for any person to violate any of the terms and provisions of this Chapter or the provisions of any ordinance, regulation, or other official control adopted by the board pursuant thereto. Violation thereof shall be a misdemeanor and may be punishable by a fine up to one hundred dollars for each and every day that any violator fails to comply with the provisions of this Chapter or any ordinance or regulation adopted pursuant to this Chapter. All fines for violation shall be paid to the county and shall be credited to the general revenue fund.
      In the event of a violation or a threatened violation of the regulations or restrictions of an ordinance adopted pursuant to this
      Chapter, the board of county commissioners or any member thereof, in addition to other remedies, may institute an appropriate action or proceedings to seek an injunction in a court of competent jurisdiction to prevent, restrain, correct or abate such violation or threatened violation and it is the duty of the state’s attorney to institute such action.
      Any taxpayer of the county may institute mandamus proceedings in circuit court to compel specific performance by the proper official or officials of any duty required by this Chapter and by any ordinance adopted thereunder.
      1967 SD Laws ch 20, § 13.

      . A permitted special use is defined as ''[a] use generally allowed in a zoning district but subject to the express, specified, or special restrictions applicable to that zoning district.”

      . Section 1405 provides:
      A nonconforming use shall not be enlarged, extended, converted, reconstructed, or structurally altered unless such use is changed to a use permitted in the district in which the premise is located except that a conditional use permit may be authorized after the following criteria are given specific consideration:
      (A). Effect on surrounding property values.
      (B). The density of land use zoning for the subject and adjacent properties.
      (C). The degree of hardship to the applicant if permit is not granted.
      (D). Demonstration of applicant's intent to use the entire premises for such use prior to the adoption, revision or amendment of this Ordinance, as pertinent.

      . In his brief, Jensen states that the circuit court “failed to respond to the motion, presumably meaning that the motion was denied.” The record, however, contains a copy of the motion bearing the word “denied,” the date — "10/12/05”—and the judge’s signature.

      . Jensen’s mandamus action asked the circuit court to compel the County to enforce the set back requirement or deny the conditional use permit.


author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2006 SD 60
    Joel ABERLE, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipality, Defendant and Appellee.
    Nos. 23785, 23827.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided July 5, 2006.

      Drew C. Johnson, Johnson Law Office, Aberdeen, South Dakota, Attorney for plaintiff and appellant.
    Mark A. Anderson, Aberdeen, South Dakota, Attorney for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Joel Aberle, an employee of the City of Aberdeen, was terminated by the City and filed a wrongful termination suit. On a motion for partial summary judgment, the circuit court found Aberle was not an at-will employee as an implied employment contract existed, and that Aberle was wrongfully terminated in violation thereof. A bench trial on the issue of damages resulted in an award for past damages, and in lieu of future damages, the circuit court ordered the City to reinstate Aberle. Aberle appeals the circuit court’s order for reinstatement. By notice of review, the City appeals the circuit court’s ruling as to the existence of an implied employment contract and argues that it had the right to terminate Aberle as he was an at-will employee. The City also appeals the order for reinstatement. We reverse and remand concluding the City possessed a contractual right to terminate Aberle as an at-will employee.

FACTS AND PROCEDURE

[¶ 2.] In 1995, Joel Aberle (Aberle) applied to the City of Aberdeen (City) for a maintenance worker position at the Aberdeen Regional Airport. The employment application stated: “If an employment relationship is established, I understand that I have the right to terminate my employment at any time and that the City of Aberdeen has a similar right.” Aberle was hired for the position in November of 1995.

[¶ 3.] During his employment, City utilized “Standard Policy & Procedure # 001,” which detailed seven behaviors encouraged and expected by City and eleven behaviors that were discouraged and were labeled as “will not be tolerated.” A copy of the policy acknowledging receipt of the information was signed by Aberle on December 11, 1995, and was retained in his personnel file. The document stated as its subject “Standards of Employment,” with an effective date of September 18, 1989, and contained the following:

Behaviors which will be encouraged and expected:
1. Neat appearance, exemplary conduct and cooperation with all departments.
2. Demonstration of courtesy and tact when dealing with the public, other employees, visitors, and all those involved in city government and its functions.
3. Participation in In-service Training Activities and safety procedures.
4. To familiarize and adhere to administrative and department policies, procedures and regulations.
5. Provisions made to pay for debts due, so to maintain the integrity of the City and its employees.
6. Make constructive suggestions for the betterment of the City.
7. Following the proper chain of command in complaints, suggestions and grievances.
Behaviors which are discouraged and will not be tolerated:
1. Unwillingness to accept work and/or assignments.
2. Appearing for duty or working under influence of illicit drugs and/or alcohol.
3. Excessive absenteeism and/or misuse of sick time.
4. Thievery, misappropriation or negligent care of city or others!’] personal property.
5. Refusal to comply with proper directions of supervisory personnel.
6. Threatening, offensive or abusive conduct (verbally or physically) towards supervisory, fellow employees and city officials, or the general public.
7. The acquisition, discussion or release of confidential material without proper authority.
8. Threaten or attempt to use personal or political influence.
9. Desertion of duty post; including sleeping while on duty.
10. Falsification or misrepresentation of information, records, or documents.
11. Willfully violat[e] any of the provisions of Civil Service or Administrative or Department rules or regulations.
I have read and understood the expected practices outlined above. While employed by the City of Aberdeen, I agree to conform in these practices. I understand that to engage in any of the listed non-acceptable behaviors will result in my being considered for disciplinary action or immediate discharge. I understand that I have the right to terminate my employment at any time and that the City has a similar right, (emphasis added).

[¶ 4.] In addition, City also used a publication titled “General Employee Policies” that included a section on disciplinary action. That section stated: “It is understood that there are offenses for which disciplinary action may be warranted, including termination.”

[¶ 5.] On November 28, 2003, Aberle received a letter from City indicating that he was being terminated, but would have the opportunity to meet with several City officials to show cause why he should not be terminated. The letter stated that Aberle had been determined to have violated three of the affirmative and two of the prohibited items in Standard Policy & Procedure # 001.

[¶ 6.] Aberle met with several City officials on December 9, 2003. At the hearing, City presented no evidence and called no witnesses. Aberle objected to the procedural format of the hearing due to his inability to examine City’s witnesses. He claimed he was entitled to due process protections as he was not an at-will employee. Aberle received written notice of termination on December 10, 2003, which again stated the same violations of Standard Policy & Procedure # 001 as reason for the termination.

[¶ 7.] Aberle requested a post-termination hearing, claiming he was not an at-will employee, but instead could only be terminated for cause after compliance with pre-and post-termination hearings. His request for a post-termination hearing was denied by City, which claimed the procedure was not necessary because Aberle’s status as an at-will employee did not entitled him to due process protection in his termination.

[¶ 8.] At the time of his discharge, Aberle was receiving $12.19 per hour for a standard forty-hour work week, plus heath insurance benefits and a four percent retirement match, which brought his weekly wage to $606.85, or $121.37 per day. His remaining work life expectancy was seventeen years at the time of discharge for a total of 4,420 days of work life.

[¶ 9.] Aberle was unemployed without work for eighty-three days as he searched for a new job. On April 6, 2004, Aberle obtained employment with Jensen Rock and Sand, (Jensen) at a rate of $9.00 per hour, but without health or retirement benefits. His total weekly salary at Jensen was $360.00, or $72.00 per day. Aberle continued to look for work while employed with Jensen, and eventually found a position with HRS Food Service (HRS) on June 7, 2004. His hourly rate at HRS was $9.75 per hour plus $28.38 for health benefits, but no retirement match. His total weekly wage at HRS was $418.38, or $83.68 per day.

[¶ 10.] Aberle filed suit against City claiming wrongful discharge and requesting monetary damages. Aberle claimed lost wages while unemployed of $10,073.71. He also claimed lost wages for the difference between his wages while employed with Jensen and what his wages would have been if he had remained employed with City in the amount of $2,172.28. Aberle stated that he was satisfied with his position with HRS and planned to work for HRS until retirement. Therefore, he claimed the difference between his daily wage rate with HRS and his wage rate with City times his remaining life work expectancy for a total of $166,589.90.

[¶ 11.] Aberle moved for summary judgment on the issue of whether he was an at-will employee or a contract employee. Aberle argued that as a contract employee he was entitled to a post-termination hearing. As evidence of his status as a contract employee, Aberle submitted City’s General Employee Policies manual and Standard Policy & Procedure # 001. Finally, Aberle argued that he was wrongfully terminated as he was not provided a post-termination hearing.

[¶ 12.] City argued Aberle was an at-will employee and therefore no post-termination hearing was required. City offered the same two documents as evidence that it did not waive its right to terminate Aberle at will under the language of the documents.

[¶ 13.] The circuit court found that an implied contract existed between City and Aberle by virtue of the General Employee Policies manual and Standard Policy & Procedure #001, and by City acting upon these documents in its notice of termination to Aberle. By adopting the offenses stated in Standard Policy & Procedure # 001 and stating the alleged violations were the basis for the termination, the circuit court concluded that City waived the statutory presumption that Aberle was an at-will employee. The circuit court concluded that Aberle was a contract employee who could be terminated only with notice and with cause after pre-termination and post-termination hearings. Further, City’s failure to provide due process type pre-ter-mination and post-termination hearings violated Aberle’s right to due process and subjected him to a wrongful termination.

[¶ 14.] Thereafter, a bench trial was scheduled on the issue of damages. City raised as a defense that Aberle failed to mitigate damages. City submitted evidence to show that several fields of employment with the same or higher wages as his position with HRS, and for which Aberle was qualified, were available in the Aberdeen area. City argued that his failure to continue to search for a position with a higher salary constituted a failure to mitigate his damages.

[¶ 15.] Aberle was able to establish that he conducted reasonable work searches throughout the course of his unemployment and while working at Jensen, up until the time he secured the position with HRS. However, the circuit court did not make a finding as to whether Aberle failed to mitigate his damages after accepting employment with HRS. Instead, the circuit court ordered specific performance in lieu of determining Aberle’s damages for future pay. The circuit court ordered City to reinstate Aberle to his former position, and awarded damages of $37.69 per day from June 7, 2004, the date Aberle began working for HRS, up until the date City rehired Aberle at his former rate of pay and benefits plans.

[¶ 16.] Aberle raises one issue for our review: Whether the circuit court erred when it ordered City to reinstate Aberle to his former position. By notice of review, City raises the same reinstatement issue, and also raises the issue of whether City retained the right to terminate Aberle under an at-will term of employment. We will address City’s at-will issue first, as it is the dispositive issue for this case.

STANDARD OF REVIEW

[¶ 17.] The circuit court’s ruling on a summary judgment will be upheld on appeal when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Titus v. Chapman, 2004 SD 106, ¶ 13, 687 N.W.2d 918, 923 (quoting SDCL 15-6-56(c)). “We will affirm when no genuine issues of material fact exist, and the legal questions have been correctly decided.” Id. (citing Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). On appeal, we view all reasonable inferences drawn from the facts in favor of the non-moving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). The moving party bears the burden to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Id. The circuit court’s conclusions of law are reviewed de novo. Id. (citing City of Colton v. Schwebach, 1997 SD 4, 8, 557 N.W.2d 769, 771)).

ANALYSIS AND DECISION

[¶ 18.] Whether an express or implied contract existed between the City and Aberle that governed the conditions under which the City could terminate Aberle’s employment.

[¶ 19.] SDCL 53-1-3 provides that “[a] contract is either express or implied. An express contract is one, the terms of which are stated in words. An implied contract is one, the existence and terms of which are manifested by conduct.” Only when parties do not expressly agree will the law intercede and determine whether the conduct of the parties has created an implied contract. Jurrens v. Lorenz Mfg. Co. of Benson, Minn., 1998 SD 49, ¶ 6, 578 N.W.2d 151, 153 (citing Ryken v. Blumer, 307 N.W.2d 865, 868 (S.D.1981)). Therefore, the existence of an express contract precludes the existence of an implied contract. Id. (quoting 66 Am-Jur2d Restitution and Implied Contracts § 6, at 948-49 (1973)).

[¶ 20.] In the context of employment relationships, South Dakota is an employment-at-will state per the provisions of SDCL 6CM-4. Should a contract exist between the employer and the employee, the terms of the contract control over the provision of the statute. Obviously the two parties may, as part of an employment contract, agree that the employee is employed under an at-will term of employment.

[¶ 21.] However, an employer may surrender its statutory at-will power via either an express or implied contract. Holland v. FEM Elec. Ass’n, Inc., 2001 SD 143, ¶ 12, 637 N.W.2d 717, 720 (citing Butterfield v. Citibank of South Dakota, N.A., 437 N.W.2d 857, 859 (S.D.1989); Osterkamp v. Alkota Mfg., 332 N.W.2d 275 (S.D.1983)). An express surrender occurs when the employer affirmatively indicates such intent by adopting written personnel policies or manuals that explicitly state that a for-cause termination procedure must be followed. Id. (citing Hollander v. Douglas County, South Dakota, 2000 SD 159, ¶ 14, 620 N.W.2d 181, 185; Richardson v. East River Elec. Power Co-op., Inc., 531 N.W.2d 23 (S.D.1995)). In such instances, an express contract of employment is created that contains specific terms surrendering the statutory at-will power. Id. -The second manner in which an employer may surrender its statutory at-will power occurs when an employer impliedly creates such a contract. Id. When no explicit surrender of the statutory at-will power is made by the employer, but policies or handbooks “contain!] a detailed list of exclusive grounds for employee discipline or discharge and a mandatory or specific procedure which the employer agrees to follow prior to any employee’s termination!,]” an implied contract is created that binds the employer to the for-cause termination procedure. Id. (quoting Hollander, 2000 SD 159, ¶ 14, 620 N.W.2d at 185).

[¶ 22.] The hallmark of both an implied and an express surrender of the statutory power to terminate employees at will is a clear intention on the part of the employer. Butterfield, 437 N.W.2d at 859. An employer creates a protected property right in continued employment for its employees when it surrenders its statutory at-will power and adopts a discharge policy that provides termination will occur only for cause. Hollander, 2000 SD 159, ¶ 15, 620 N.W.2d at 185 (citing Hopkins v. Saunders, 199 F.3d 968, 975 (8thCir.1999) (citing Spitzmiller v. Hawkins, 183 F.3d 912, 916 (8thCir.1999))). Whether the surrender is made by an express or implied contract, if the employer does not follow proper termination procedures an employee who has been terminated may have a wrongful discharge claim. Holland, 2001 SD 143, ¶ 12, 637 N.W.2d at 721.

[¶ 23.] However, the fact that an employment contract is memorialized in writing does not in and of itself constitute a surrender of an employer’s statutory at-will power. Butterfield, 437 N.W.2d at 860 (quoting Toussaint v. Blue Cross and Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880, 890 (1980)). A written employment contract may include both guidelines for employee conduct and behavior and an explicit reservation of the at-will power. Id. Such an explicit reservation does not require the use of any specific language, but it must clearly indicate that the employer reserves the right to fire an employee at any time when it deems discharge to be appropriate. Id. at 859.

[¶ 24.] In the instant case, the circuit court found that an implied contract of employment existed as a matter of law. It found that the “Standards of Employment” and the General Employee Policies, plus City’s conduct of identifying specific violations of standards by Aberle, showed a clear intent on the part of City to relinquish its statutory at-will power.

[¶ 25.] The circuit court erred when it held the two documents created an implied contract of employment. The two documents which carry Aberle’s signature contain written and explicit terms of employment and constitute an express contract as a matter of law concerning his at-will status. This is consistent with the terms of SDCL 53-1-3 which declare that implied contracts are created “by conduct” rather than solely by terms of a document. Thus, because an express contract existed as to at-will status under the two documents, an implied contract could not exist. The circuit court failed to consider the significance of the last line of the “Standards of Employment” portion of the employment contract which states: “I understand that I have the right to terminate my employment at any time and that the City has a similar right.” (emphasis added). This statement serves as an explicit reservation of the right to terminate employees at any time, without notice or regard to violations of the “Standards of Employment.” That is, it is an explicit contractual reservation of the statutory power to terminate an employee at will.

[¶ 26.] Moreover, the circuit court’s erroneously relied on the policy encouraging and discouraging certain behaviors. This policy did not create an implied contract because, as we noted in Holland, “the po-lic[ies] or manual[s][must] contain[] a detailed list of exclusive grounds for employee discipline or discharge and a mandatory and specific procedure which the employer agrees to follow prior to any employee’s termination[,]’ ” before an implied contract may be found to exist. However, the City of Aberdeen’s policy contained neither an exclusive list of grounds for discipline nor a mandatory or specific procedure for employee termination. Consequently, it did not create an implied contract.

[¶ 27.] Because we reverse on the threshold issue and find that there was no implied contract of employment that guaranteed due process termination rights to Aberle, we do not need to consider whether reinstatement was the proper remedy.

[¶ 28.] We reverse and remand for action consistent with this opinion.

[¶ 29.] KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 30.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 31.] As noted in Wilson v. Great Ne. Ry. Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (1968): “The question presented ... is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issues of fact, but shall determine only whether one exists.” (citation omitted). “If a court, in ruling on a motion for summary judgment, engages in fact-finding, reversal is required.” Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 698 (S.D.1994) (quoting Kropff v. City of Monroe, 128 Mich.App. 450, 340 N.W.2d 119, 120 (1983)). The same rule applies to the South Dakota Supreme Court.

The circuit court erred when it ruled as a matter of law that City created an implied employment contract based upon its written employment policies and the Supreme Court compounds the error by reversing and remanding when there are genuine issues of material fact to be decided by the jury.

[¶ 32.] South Dakota is an employment-at-will state per the provisions of SDCL 60-4-4: “An employment having no specified term may be terminated at the will of either party on notice to the other, unless otherwise provided by statute.” However, an employer may surrender this statutory power to hire and fire at will. Holland v. FEM Electric Ass’n, Inc., 2001 SD 143, ¶ 11, 637 N.W.2d 717, 720 (citing Butterfield v. Citibank of South Dakota, 437 N.W.2d 857, 859 (S.D.1989); Osterkamp v. Alkota Mfg., 332 N.W.2d 275 (S.D.1983)). An employer may expressly surrender its at-will statutory power by affirmatively indicating such intent and by adopting personnel policies or manuals that explicitly provide “that a for-cause termination procedure must be followed.” Id. (citing Hollander v. Douglas County, South Dakota, 2000 SD 159, ¶ 14, 620 N.W.2d 181, 185 (additional citations omitted)).

[¶ 33.] In addition, an implied surrender will be found to exist when the policy or manual ‘contains a detailed list of exclusive grounds for employee discipline or discharge and a mandatory and specific procedure which the employer agrees to follow prior to any employee’s termination.’ ” Id. (quoting Hollander, 2000 SD 159, ¶ 14, 620 N.W.2d at 185) (additional citation omitted)). The hallmark of both an implied and an express surrender of the statutory power to terminate at will is a clear intention on the part of the employer. Butterfield, 437 N.W.2d at 859. However, “ ‘[t]he existence and governing terms of any implied contract present questions of fact to be decided by a jury.’ ” Holland, 2001 SD 143, ¶ 6, 637 N.W.2d at 719 (quoting Jurrens v. Lorenz Mfg. Co. of Benson, Minn., 1998 SD 49, ¶ 9, 578 N.W.2d 151, 154 (citing Lien v. McGladrey & Pullen, 509 N.W.2d 421, 424 (S.D.1993))).

[¶ 34.] In this case, whether City’s General Employee Policies manual and Standard Policy & Procedure # 001 created an implied contract of employment was an issue of fact, and if it did, also at issue was what terms governed the contract. As such, the issue of whether an implied contract existed, and if so, the determination of its terms were incapable of being resolved on a motion for summary judgment, as both were material facts in dispute. The circuit court engaged in impermissible fact finding when it determined that an implied contract of employment existed, and that the contract provided Aberle with the right to both a pre-and post-termination hearing governed by due process standards. Given that the circuit court engaged in fact finding with regard to genuine issues of material fact on a motion for summary judgment, reversal and remanding is required. The majority gets that part right but then proceeds to enter the opposite result for the City of Aberdeen as a matter of law despite the fact that there are genuine issues of material fact. This Court should not compound the error by reversing and remanding and then entering the opposite result when there are genuine issues of material fact to be decided by the jury.

[¶ 35.] We should reverse and remand to the circuit court for jury trial on the issue of whether an implied contract of employment existed and for a determination as to its terms.

      . Aberle argues that the City did not properly preserve this issue for appeal because it failed to object to the circuit court's proposed findings of fact and conclusions of law. On appeal we conduct a limited review as to whether the circuit court’s findings of fact support the conclusions of law without regard to whether the issue was properly preserved below. Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894, 895 (S.D.1994) (citing Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991)). In the instant case, we limit our review to whether the two documents submitted on the motion for summary judgment as a matter of law establish an express or implied contract of employment.

      . SDCL 60-4-4 provides: "An employment having no specified term may be terminated at the will of either party on notice to the other, unless otherwise provided by statute.”


author: SABERS, Justice.

text:
    2006 SD 59
    STATE of South Dakota, Plaintiff and Appellee, v. Ann Paige BABCOCK aka Ann Paige Dodson, Defendant and Appellant.
    No. 23717.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2006.
    Decided July 5, 2006.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Darren J. Magee, Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant
   SABERS, Justice.

[¶ 1.] Ann Paige Babcock (Babcock) was indicted for possessing methamphetamine and inhabiting a place where drugs are kept. Prior to trial, she made a motion to suppress evidence, arguing: (1) law enforcement’s affidavit did not provide probable cause to justify the issuance of an “all persons search warrant” and (2) there were no exigent circumstances permitting law enforcement to forgo the “knock and announce” requirement in the warrant. The circuit court denied the motion and Babcock was later convicted on both counts. Babcock appeals the denial of her motion to suppress. We affirm.

Facts

[¶ 2.] On August 24, 2004, law enforcement received the first of four anonymous “crime stoppers” calls alleging drug activity at a private residence at 1908 South Menlo Avenue in Sioux Falls, South Dakota. The informant noted the following facts: the residence was owned by a woman named Lori; there was lots of short-term traffic during all hours of the day; and two small children were being exposed to drug use and drug dealing. A few hours later, another “crime stoppers” call was received from a different informant. This caller set forth many of the same allegations as the first caller, but noted that there were “two little girls that live at the address” who are sometimes “locked out of the house for short periods of time when ... people come over.”

[¶ 3.] Over the next couple of days, law enforcement received two additional calls alleging drug use at 1908 South Menlo. One of the callers stated that there were two small children being neglected because there was “no food in the house” and there were “needles lying around.” Additionally, the caller stated the location of the drugs in the residence.

[¶ 4.] Law enforcement called a utility company and confirmed that a woman named Lori Aguirre (Aguirre) was receiving electrical services at 1908 South Menlo. Based on the four “crime stoppers” calls and confirmation a woman named Lori was living at the address, law enforcement decided to search a garbage dumpster located in an alley next to the residence.

[¶ 5.] Law enforcement found several baggies with corners cut out of them, baggie corners containing white residue, foil strips, a small amount of marijuana, and two syringes. Additionally, there was a letter from the South Dakota Department of Social Services (DSS) addressed to Aguirre requesting a meeting.

[¶ 6.] The foil strips and the white powder residue on the baggie corners tested positive for methamphetamine. Law enforcement contacted a representative from DSS. The representative told law enforcement that she had received allegations of drug use at the home of Aguirre, but was unable to confirm the activity because Aguirre did not return phone calls or allow any visits with her or her two children.

[¶ 7.] Based on this information, Detective Steven Fiegen (Fiegen) submitted an affidavit in support of an all persons search warrant for Aguirre’s residence. Fiegen stated that based on his experience as a narcotics officer, it was common for individuals involved in drug distribution to remove the corners of baggies in a fashion similar to those found in Aguirre’s trash. According to Fiegen, it was also common for individuals involved in drug distribution to have high levels of short term traffic at their residence. He requested an “all persons” warrant for Aguirre’s residence. He also requested a “no knock” provision in the warrant in order to protect the officers involved in the search and prevent the destruction of evidence.

[¶ 8.] The circuit court issued the “all persons” warrant, but denied the right to forgo the knock and announce requirement. The court permitted law enforcement to execute the warrant at anytime, day or night.

[¶ 9.] Officers from the narcotics unit of the Sioux Falls Police Department and Drug Enforcement Administration executed a search of Aguirre’s residence on the afternoon of October 13, 2004. All the officers wore black shirts bearing police insignia. When they approached the back of the house, they observed a man standing in the upstairs window. The officers yelled at the man “don’t move, don’t move, police, search warrant.” The individual looked down at the officers and stepped out of view. The officers yelled for him to return to no avail. At that point the officers decided to enter the home. Upon entering the home, officers were able to locate one person sleeping in the basement and six people in an upstairs bedroom. Among the people upstairs were Babcock and Aguirre. A search of the home and individuals yielded methamphetamine, a methamphetamine pipe, baggies with the corners cut out of them, a hand scale, one spoon, nine syringes, a zip lock baggie, and marijuana.

[¶ 10.] Babcock was indicted on one count of possession of methamphetamine and one count of inhabiting a place where drugs are kept. Prior to trial she made a motion to suppress the evidence, arguing that Fiegen’s affidavit was insufficient to support probable cause and, alternatively, there were no exigent circumstances permitting law enforcement officers to forgo the knock and announce requirement. Babcock was convicted on both counts. She appeals, raising two issues.

1. Whether Fiegen’s affidavit provided probable cause for the issuance of an “all persons” search warrant.
2. Whether exigent circumstances permitted law enforcement officers to forgo the knock and announce requirement.

Standard of Review

[¶ 11.] We review challenges to the sufficiency of search warrants in a highly deferential manner, examining the totality of the circumstances to decide if there was at least a “substantial basis” for the issuing judge’s finding of probable cause. State v. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (citations omitted)). “ ‘A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’ ” Id. ¶ 9 (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984)). Our review of the issuing court’s decision to grant the search warrant is done independently of the conclusion reached by the suppression court. Id. ¶ 8.

[¶ 12.] As to the exigent circumstances issue, we review the circuit court’s factual findings under the clearly erroneous standard. State v. Kottman, 2005 SD 116, ¶ 9, 707 N.W.2d 114, 118. Once the facts have been determined, however, application of a legal standard to those facts is reviewed de novo. Id.

1. Probable cause

[¶ 13.] In Jackson, we held that “all persons” search warrants are not per se violative of the Fourth Amendment. 2000 SD 113, ¶ 14, 616 N.W.2d at 417. Instead, the validity of such warrants, “like the validity of any search warrant, depends on the probable cause offered to support it.” Id. ¶ 14 (citing Ybarra v. Illinois, 444 U.S. 85, 91,100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979)). In examining an affidavit in support of an “all persons” search warrant, the inquiry is:

whether the affidavit gave sufficient particularity to conclude that there was good reason to believe that anyone present would probably be a participant in the illegal drug activities at [the residence]. The key to assessing an “all persons” warrant is to examine whether there was a sufficient nexus among the criminal activity, the place of the activity, and the persons in the place to establish probable cause. Those courts upholding “all persons” warrants find such nexus and those courts striking them down conclude no such nexus was shown.

Id. ¶ 15, 616 N.W.2d at 418 (internal citations and quotations omitted). Additionally, we look to the four corners of the affidavit in determining whether it provided probable cause for issuing the warrant. Id. ¶ 11, 616 N.W.2d at 416. Thus, “the existence of probable cause for the search warrant must rise or fall on the affidavit itself which was the only evidence presented to the [court] for [its] determination of probable cause.” Id. (quoting State v. Smith, 281 N.W.2d 430, 433 (S.D.1979)).

[¶ 14.]Two elements are often crucial to whether an anonymous tip provides a substantial basis for the issuing courts determination of probable cause: (1) an explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, and (2) the extent to which the tip is corroborated by the officer’s own investigation. State v. Raveydts, 2004 SD 134, ¶¶ 11-12, 691 N.W.2d 290, 295 (citing Gates, 462 U.S. at 234-44, 103 S.Ct. at 2330-35, 76 L.Ed.2d 527). In this case, the affidavit set forth the anonymous “crime stoppers” calls reciting short term traffic at all hours, children being locked out of the house during these visits, needles and drugs lying around the house, etc. The affidavit also stated that all of the anonymous callers named Aguirre as the primary resident. Finally, the affidavit noted that one of the informants gave a detailed description of where Aguirre kept her drugs. Thus, the four calls, when viewed collectively, included a detailed description of drug use and distribution, as well as some first hand observations.

[¶ 15.]More importantly, the affidavit set forth law enforcement’s independent corroboration of the “crime stoppers” calls. Law enforcement determined that Aguirre resided at 1908 South Menlo. Additionally, they confirmed she had two children whom DSS was seeking to interview based on allegations of neglect and illegal drug use by Aguirre. Finally, they found foil strips, numerous baggies, marijuana, methamphetamine residue, and two syringes. In his affidavit, Fiegen stated that the baggies with cut corners were more indicative of drug distribution, than drug ingestion. Under these circumstances, a substantial basis existed for the issuing court’s determination of a fair probability that Aguirre and anyone at her residence would be engaged in the use, sale, or distribution of illegal drugs. As a result, there was probable cause for the issuance of an “all persons” search warrant for Aguirre’s residence.

[¶ 16.] Babcock attempts to distinguish Raveydts and Jackson in arguing that there was no probable cause to support the issuance of the “all persons” warrant. Babcock points out that the police in Raveydts were able to corroborate a large amount of short term traffic, as well as license plate numbers that belonged to known drug dealers. 2004 SD 134, ¶4, 691 N.W.2d at 292. In this case, law enforcement did not witness large amounts of short term traffic, although only one evening was spent in an attempt to corroborate this claim. However, failure to corroborate the short term traffic is not fatal because “[w]hat amount of evidence is required to form probable cause is not a question susceptible to formulaic solutions.” Jackson, 2000 SD 113, ¶ 22, 616 N.W.2d at 420 (citing People v. Fino, 14 N.Y.2d 160, 250 N.Y.S.2d 47, 199 N.E.2d 151, 153 (1964)). There will often be facts in some cases that are absent in others. Here, the numerous drug-related items recovered from Babcock’s trash coupled with other corroborating information provided substantial support for the “all persons” search warrant.

[¶ 17.] In her attempt at distinguishing Jackson, Babcock points out the Jackson search warrant was executed during evening hours, while the warrant in the present case was executed in the afternoon. While that fact may have provided more support to the validity of the warrant in Jackson, the absence of a night time execution does not render the warrant unconstitutional in this case. Drug dealing is not an enterprise that is exclusively nocturnal.

2. Exigent circumstances

[¶ 18.] Law enforcement’s failure to knock and announce their presence is justified in cases where exigent circumstances exist. State v. Max, 263 N.W.2d 685, 689 (S.D.1978). Exigent circumstances exist when police officers have a good faith belief that they are in peril of bodily harm, id., or there is a risk that evidence will be destroyed. State v. Hess, 2004 SD 60, ¶ 25, 680 N.W.2d 314, 325.

[¶ 19.] In this case, law enforcement saw an individual standing in one of the windows of the Aguirre residence. They announced their presence and commanded the individual not to move. The individual did not obey, and stepped out of view. Fiegen testified that because this was a drug raid, the officers believed the individual could have taken the opportunity to find a weapon, destroy evidence, or notify others. Under these circumstances, the circuit court did not err in determining exigent circumstances justified law enforcement’s failure to knock before entering.

[¶ 20.] Affirmed.

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

       After the briefs were filed and considered in this case, the United States Supreme Court decided Hudson v. Michigan, 547 U.S. -, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). In Hudson, the Court declined to apply the exclusionary rule to evidence seized by law enforcement, even though the officers failed to make a proper knock and announce. Hudson, however, does not apply to this case because we have determined exigent circumstances justified law enforcement in failing to knock before entering. Therefore, we leave application of the Hudson case for another day.