source doctrine in South Dakota

2024As noted in Boll, “[t]he inevitable discovery doctrine . . . is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” 2002 S.D. 114 , ¶ 20, 651 N.W.2d at 716 (omission in original) (quoting Murray v. United States, 487 U.S. 533, 539 , 108 S. Ct. 2529, 2534 , 101 L.

2005Furthermore, on December 6, 2002, investigators made contact with a representative of CNA and requested information regarding CNA warranties sold by Swalve. [¶ 36.] “The independent source doctrine applies when evidence is legally seized though a source independent of an illegal search.” State v. Boll, 2002 SD 114, ¶ 23 , 651 N.W.2d 710, 717 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920)).

2024As noted in Boll, “[t]he inevitable discovery doctrine . . . is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” 2002 S.D. 114 , ¶ 20, 651 N.W.2d at 716 (omission in original) (quoting Murray v. United States, 487 U.S. 533, 539 , 108 S. Ct. 2529, 2534 , 101 L.

2024As noted in Boll, “[t]he inevitable discovery doctrine . . . is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” 2002 S.D. 114 , ¶ 20, 651 N.W.2d at 716 (omission in original) (quoting Murray v. United States, 487 U.S. 533, 539 , 108 S. Ct. 2529, 2534 , 101 L.

2024The independent source doctrine, on the other hand, “applies if the evidence both would have been acquired by lawful means had the unlawful search not occurred and in fact was acquired (or reacquired) by these lawful means.” United States v. Baez, 983 F.3d 1029, 1037 (8th Cir. 2020).

2024Although the independent source and inevitable discovery doctrines are closely related, maybe even “first cousin[s],” State v. Garner, 331 N.C. 491, 512 , 417 S.E.2d 502, 514 (1992) (Frye, J., concurring), I would not apply the related inevitable discovery doctrine here because there was no “alternate source” of investigation “pending, but not yet realized[.]” State v. Boll, 2002 S.D. 114 , ¶ 21, 651 N.W.2d 710, 717 (citation omitted). 15 Instead, the source for discovering the contraband images on O’Neal’s phone was not an alternate one to be considered hypothetically—it was an independent on

2024Although the independent source and inevitable discovery doctrines are closely related, maybe even “first cousin[s],” State v. Garner, 331 N.C. 491, 512 , 417 S.E.2d 502, 514 (1992) (Frye, J., concurring), I would not apply the related inevitable discovery doctrine here because there was no “alternate source” of investigation “pending, but not yet realized[.]” State v. Boll, 2002 S.D. 114 , ¶ 21, 651 N.W.2d 710, 717 (citation omitted). 15 Instead, the source for discovering the contraband images on O’Neal’s phone was not an alternate one to be considered hypothetically—it was an independent on

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2007Sweedland, 2006 SD 77, ¶ 14 , 721 N.W.2d at 413 (citing Raveydts, 2004 SD 134, ¶ 8 , 691 N.W.2d at 293 ; State v. Luxem, 324 N.W.2d 273, 279 (S.D.1982)).

2007See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that “once a person consents to a search, probable cause is no longer necessary”); see also Sweedland, 2006 SD 77, ¶ 13 , 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36 , 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8 , 688 N.W.2d 193 , 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19 , 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent

2002See also Weiss, 86 Cal.Rptr.2d 337 , 978 P.2d at 1263 (stating “if the [affidavit] contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies ... ”). [¶ 36.] However, this affidavit fails even under that expansion.

2002See also Weiss, 86 Cal.Rptr.2d 337 , 978 P.2d at 1263 (stating “if the [affidavit] contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies ... ”). [¶ 36.] However, this affidavit fails even under that expansion.

2002Rather, if the application contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry. 962 F.2d 1131, 1141-42 (3rd Cir.1992).

2002Rather, if the application contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry. 962 F.2d 1131, 1141-42 (3rd Cir.1992).

2002See, e.g., Weiss, 86 Cal.Rptr.2d 337 , 978 P.2d at 1263 ; Revenaugh, 992 P.2d at 774-75 ; Herrold, 962 F.2d at 1141-42 ; Restrepo, 966 F.2d at 970 .

2002See Herrold, 962 F.2d at 1141 . 7 [¶ 35.] Under the expansion, the question is whether “the remaining information presented to the magistrate, after the tainted evidence is excluded, contains adequate facts from which the magistrate could have concluded that probable' cause existed for the issuance of the search warrant.” Revenaugh, 992 P.2d at 774 (additional citations omitted).

2002See also Wagoner, 24 P.3d at 311 . [¶ 21.] The inevitable discovery doctrine does, however, have limited application.

2002Wagoner, 24 P.3d at 311 (emphasis added). [¶ 22.] In this case, the inevitable discovery doctrine does not apply because the search warrant and the December 19 observations were not hypothetical events. 6 Both events occurred and were used to seize (or reseize) the incriminating evidence at issue.

1985Habbena strongly urges that the subsequently acquired search warrant does not satisfy the independent source test enunciated in Wong Sun , wherein the United States Supreme Court stated that the test to determine whether evidence is tainted is: “[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distin *455 guishable to be purged of the primary taint.” 371 U.S. at 488 , 83 S.Ct. at 417 , 9 L.Ed.2d at 455 (citation omitted).

1985Habbena strongly urges that the subsequently acquired search warrant does not satisfy the independent source test enunciated in Wong Sun , wherein the United States Supreme Court stated that the test to determine whether evidence is tainted is: “[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distin *455 guishable to be purged of the primary taint.” 371 U.S. at 488 , 83 S.Ct. at 417 , 9 L.Ed.2d at 455 (citation omitted).

1985See State v. Wilson, 322 N.W.2d 866 (S.D.1980); State v. Pierson, 248 N.W.2d 48 (S.D.1976).