#26624-a-DG

2013 S.D. 77

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

PETER OWEN HENEY,                           Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                   ****

                    THE HONORABLE RANDALL L. MACY
                                Judge

                                   ****


MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
Assistant Attorney General
Sioux Falls, South Dakota                   Attorneys for plaintiff
                                            and appellee.


MATTHEW J. KINNEY
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.


                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON SEPTEMBER 30, 2013

                                            OPINION FILED 10/30/13
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GILBERTSON, Chief Justice

[¶1.]        Defendant Peter Heney was arrested and charged with possession of

cocaine, possession of marijuana, and ingestion of marijuana. Before trial, Heney

moved to suppress all evidence in the case as the fruit of an initial illegal search of

his hotel room, alleging that all evidence discovered by police on a subsequent call

to the hotel was tainted by the initial illegal search. The trial court granted the

motion with respect to the drugs seized during the initial illegal search, but denied

the motion with respect to evidence gathered during the second call to the hotel.

Heney was convicted on all charges. Heney appeals these convictions, claiming that

the trial court erred by denying his motion to suppress evidence. We affirm.

                          Facts and Procedural History

[¶2.]        On August 10, 2012, at 12:30 p.m., Officer Jim Olson of the Deadwood

Police Department responded to a call from the staff of the Mineral Palace Hotel.

Officer Olson was informed that the staff had detected the smell of marijuana in the

second-floor hallway. One of the maids at the hotel reported to Officer Olson that

she had found a marijuana cigarette earlier that day in room 212. The maid

escorted Officer Olson to room 212. On the way to room 212, Officer Olson first

noticed the smell of marijuana smoke on the first floor in the elevator. The smell

became stronger on the second floor. At room 212, Officer Olson knocked on the

door but received no response. Officer Olson then had the maid open the door to the

room. The maid complied, and then showed Officer Olson the half-smoked

marijuana cigarette she had found earlier that day. Officer Olson recognized the

cigarette as marijuana and collected it as evidence. Hotel management advised


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Officer Olson that room 212 was rented by Heney. Heney was not at the hotel at

the time, so Officer Olson requested the hotel staff notify him when Heney

returned.

[¶3.]          Deadwood Police received another call from hotel staff at

approximately 3:35 p.m., reporting that Heney had returned and that there was

now a strong smell of marijuana coming from room 208. Officer Olson returned to

the hotel, where he found the strongest odor emanating from room 208. Officer

Olson knocked on the door of room 208 and the door was answered by Michelle

Bogin-Dell. 1 Officer Olson informed Bogin-Dell that there was a complaint about

someone smoking marijuana in one of the rooms, and the odor of marijuana in the

hallway. Officer Olson did not mention his earlier visit to the hotel or finding the

marijuana cigarette. Officer Olson advised Bogin-Dell that he believed the smell

was strongest coming from the door to her room. Officer Olson then asked if he

could enter her room. Bogin-Dell consented, and Officer Olson entered the room to

talk with the other occupants of the room. Four other persons were inside the room

at the time.

[¶4.]          Officer Olson explained why he was at the room, and then asked if

anyone in the room had any marijuana. A male, later identified as Heney, stood up

and told Officer Olson that he had marijuana. Heney presented Officer Olson with

a medical marijuana prescription from California and a cigarette box containing

several marijuana cigarettes, which Heney was carrying in his shirt pocket. Officer

Olson informed Heney that South Dakota does not recognize medical marijuana


1.      It was later discovered that room 208 was registered to Bogin-Dell.

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prescriptions and that possession of marijuana was a crime in South Dakota. When

asked if anyone else in the room was smoking, Heney indicated that he was the only

person in the room smoking marijuana.

[¶5.]        Officer Olson placed Heney under arrest for possession and ingestion

of marijuana. Heney then led Officer Olson to the room registered under Heney’s

name, where Heney allowed Officer Olson to inspect Heney’s luggage. Officer Olson

identified this as the same room in which the half-smoked marijuana cigarette was

located earlier in the day. Before placing Heney in the patrol car, Officer Olson

asked Heney if there was anything else on Heney’s person that would get Heney in

trouble when he got to the jail. Heney indicated that he had a small vial of cocaine

in the top coin pocket of his jeans. Officer Olson located the vial and took it into

evidence. At the jail, Heney gave a urine sample. The sample tested positive for

marijuana and cocaine.

[¶6.]        Heney was charged with Possession of a Controlled Substance

(Cocaine), a Class 4 felony, in violation of SDCL 22-42-5; Possession of Marijuana

(Less than two (2) ounces), a Class 1 misdemeanor, in violation of SDCL 22-42-6;

and Ingesting, a Class 1 misdemeanor, in violation of SDCL 22-42-15. Heney

entered a plea of not guilty at his arraignment on September 6, 2012. Heney

subsequently filed a Motion to Suppress Evidence and the court conducted a motion

hearing on October 24, 2012. The only witness was Officer Olson.

[¶7.]        On November 29, 2012, the court entered an oral decision denying

Heney’s motion, in part. The trial judge suppressed evidence of the half-smoked

marijuana cigarette found in Heney’s room. The trial judge denied the motion with


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regards to Heney’s statements to police, the marijuana handed over to Officer Olson

by Heney in room 208, as well as the cocaine on Heney’s person. A bench trial

commenced the same day by stipulated facts and the court found Heney guilty on

all charges. Heney appeals his conviction, raising one issue for our review: Whether

the challenged evidence in this case was tainted by a previous illegal search so as to

necessitate exclusion under the fruit of the poisonous tree doctrine.

                                Standard of Review

[¶8.]        “A motion to suppress for an alleged violation of a constitutionally

protected right raises a question of law, requiring de novo review.” State v. Hess,

2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (citation omitted). Factual findings of the

lower court are reviewed under the clearly erroneous standard, but once those facts

have been determined, “the application of a legal standard to those facts is a

question of law reviewed de novo.” Id. (citation omitted).

                               Analysis and Decision

[¶9.]        “[T]he exclusionary rule prohibits introduction into evidence of

tangible materials seized during an unlawful search, and of testimony concerning

knowledge acquired during an unlawful search.” State v. Boll, 2002 S.D. 114, ¶ 19,

651 N.W.2d 710, 716 (quoting Murray v. United States, 487 U.S. 533, 536, 108 S. Ct.

2529, 2533, 101 L. Ed. 2d 472 (1988)). “[T]he exclusionary rule reaches not only

primary evidence obtained as a direct result of an illegal search or seizure, but also

evidence later discovered and found to be derivative of an illegality or ‘fruit of the

poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 3385,

82 L. Ed. 2d 599 (1984) (citations omitted). However, “[e]ven Wong Sun, the


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progenitor of the ‘fruit of the poisonous tree’ doctrine, recognized that original

lawless conduct would not taint all evidence forever.” Satter v. Solem, 458 N.W.2d

762, 768 (S.D. 1990). Application of the exclusionary rule should strike a balance

between “the interest of society in deterring unlawful police conduct and the public

interest in having juries receive all probative evidence of a crime[.]” See Nix v.

Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377 (1984).

[¶10.]         On appeal, the parties do not dispute the illegality of the initial search

in room 212, or the trial court’s suppression of evidence found in room 212 during

that initial search. However, Heney argues that the trial court erred when it

denied the motion to suppress with regards to the evidence obtained during Officer

Olson’s second trip to the Mineral Palace Hotel. Heney argues that the illegal entry

into room 212 so tainted all subsequent evidence that all subsequent evidence

should be excluded as fruit of the poison tree.

[¶11.]         “It is well settled that the burden is on the one making the motion to

suppress evidence to establish that such evidence was illegally seized.” State v.

Rigsbee, 89 S.D. 360, 376, 233 N.W.2d 312, 321 (1975) (citation omitted). 2 “When

the issue is whether challenged evidence is the fruit of a Fourth Amendment

violation, the defendant bears the initial burden of establishing the factual nexus

between the constitutional violation and the challenged evidence.” United States v.


2.       Note, however, that the State bears the initial burden of proving that any
         warrantless search meets an exception to the warrant requirement. State v.
         Labine, 2007 S.D. 48, ¶ 14, 733 N.W.2d 265, 269. Also, once the defendant
         has carried the burden of proving that the challenged evidence is the fruit of
         the poisonous tree, the burden again shifts to the government to ultimately
         “show that its evidence is untainted.” See Alderman v. United States, 394
         U.S. 165, 183, 89 S. Ct. 961, 972, 22 L. Ed. 2d 176 (1969).

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Marasco, 487 F.3d 543, 547 (8th Cir. 2007) (citing Alderman, 394 U.S. at 183, 89 S.

Ct. at 972). “Suppression is not justified unless ‘the challenged evidence is in some

sense the product of illegal governmental activity.’” Segura, 468 U.S. at 815, 104 S.

Ct. at 3391 (quoting United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244,

1250, 63 L. Ed. 2d 537 (1980).

[¶12.]       The challenged evidence should not be excluded as fruit of the

poisonous tree “unless the illegality is at least the ‘but for’ cause of the discovery of

the evidence.” Id. It should be noted that “but-for causality is only a necessary, not

a sufficient, condition for suppression” under the fruit of the poisonous tree

doctrine. Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed.

2d 56 (2006). The primary focus of our analysis is “whether, 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

distinguishable to be purged of the primary taint.” Boll, 2002 S.D. 114, ¶ 32, 651

N.W.2d at 719 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407,

417, 9 L. Ed. 2d 441 (1963)).

[¶13.]       Heney has the duty of establishing a “but for” causal nexus between

the illegal search of room 212 and the discovery of the challenged evidence. Heney

argues in his brief that “[i]t can be assumed Heney would not have been questioned

and arrested if Olson did not come back to the Mineral Palace to locate him had the

marijuana cigarette not been located in violation of the Fourth Amendment.”

Heney further argues that “[t]here is no evidence that the incriminating evidence at

issue would be discovered by any lawful means.” Essentially, Heney argues that


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but for Officer Olson entering room 212, Officer Olson never would have told hotel

staff to call him when the occupants of the room returned. Without the call from

hotel staff, Officer Olson would never have come back to the Mineral Palace Hotel,

Heney would not have admitted to using marijuana, and Heney would not have

been arrested. His argument is not persuasive.

[¶14.]       First, it does not seem apparent that without entering room 212,

Officer Olson would not have returned to the hotel. Before entering room 212,

Officer Olson was confronted with a substantial amount of information about the

occurrence of criminal activity. This information included the hotel’s complaint

about the smell of marijuana, information from a maid that she believed she had

found marijuana in room 212, and Officer Olson’s firsthand observation of the smell

of marijuana in the hallway of the hotel. Heney’s argument presumes that Officer

Olson would not have followed up on the initial complaint by the hotel based solely

on information he gained outside of room 212, without seeing and seizing the actual

marijuana. The argument also seems to presume that the hotel management would

not have called the police upon smelling marijuana smoke a second time, or

alternatively, that the police would have ignored such a complaint. The

unlikelihood of these presumptions greatly weakens Heney’s assertion of a causal

relationship between the illegal search and the challenged evidence.

[¶15.]       Furthermore, at least one recognized exception to the fruit of the

poisonous tree rule, closely tied to the causal relationship analysis, also dictates

that Heney’s motion to suppress was properly denied. As we noted in State v. Boll:

             The independent source doctrine applies when evidence is
             legally seized through a source independent of an illegal search.

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             The exception was first recognized by the United States
             Supreme Court in Silverthorne Lumber Co. v. United States, 251
             U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920), overruled on other
             grounds by United States v. Havens, 446 U.S. 620, 100 S. Ct.
             1912, 64 L. Ed. 2d 559 (1980). The Silverthorne Court held that
             although the exclusionary rule forbids any use of illegally seized
             evidence, “[i]f knowledge of [the evidence] is gained from an
             independent source [it] may be proved like any [other] . . . .”

2002 S.D. 114, ¶ 23, 651 N.W.2d at 717 (alteration in original) (internal citation

omitted). “[W]here an unlawful entry has given investigators knowledge of facts x

and y, but fact z has been learned by other means, fact z can be said to be

admissible because derived from an ‘independent source.’” Murray, 487 U.S. at 538,

108 S. Ct. at 2533.

[¶16.]       In this case, the second call from hotel management and Officer

Olson’s subsequent interaction with the occupants of room 208 constituted an

independent source of evidence. Hotel management informed police that the

occupants of room 212 had returned, but also that “there was a strong smell of

marijuana coming from another room.” Given the hotel’s earlier action of calling

police to report suspected drug activity, this call to the police would likely have

happened even if Officer Olson had never entered room 212. Following up on this

call, Officer Olson smelled marijuana in the hallway of the hotel, which seemed to

be coming from room 208. This in turn led to knocking on the door to inquire about

the smell, which elicited the admission by Heney. Although the fact that marijuana

was located in room 212 was discovered through the illegal search, the facts

necessary to Heney’s conviction in this case were discovered through other means—

a separate complaint by hotel staff and subsequent interaction with the occupants



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of room 208 in which no knowledge acquired in the initial illegal search was

utilized.

[¶17.]       Heney asserts that under our decision in State v. Boll, all evidence

gathered during this return trip was tainted by the prior illegality because Officer

Olson’s return was at least “partly prompted” by the previous illegal search.

Therefore, Heney argues, the second trip to the hotel cannot be considered an

independent source, and all evidence acquired through Officer Olson’s continuing

investigation should be suppressed. Heney’s reliance on Boll is misplaced.

[¶18.]       In Boll, police officers conducted an illegal search of the defendant’s

property and observed evidence of methamphetamine production. 2002 S.D. 114,

¶¶ 9-11, 651 N.W.2d at 714-15. The police then used those observations to secure a

search warrant. Id. ¶ 12. The defendant moved to suppress evidence found while

executing the search warrant. Id. ¶ 13. We held, pursuant to Murray v. United

States, that a warrant would not qualify as an independent source “if the agents’

decision to seek the warrant was prompted by what they had seen during the initial

entry, or if information obtained during that entry was presented to the Magistrate

and affected his decision to issue the warrant.” Id. ¶ 26 (quoting Murray, 487 U.S.

at 542, 108 S. Ct. at 2536).

[¶19.]       Boll, however, is factually distinguishable from the case at bar. In

Boll, specific facts discovered during the illegal search prompted and enabled the

officers to obtain a warrant. The warrant alone gave officers the authority to

legally search Boll’s property. In this case, the authority for Officer Olson to be

present in Bogin-Dell’s room did not come from a warrant, or anything connected to


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his knowledge of the marijuana cigarette in room 212. Instead, he was responding

to a complaint by hotel management and entered into Bogin-Dell’s room by Bogin-

Dell’s voluntary consent. 3 Unlike the warrant search in Boll, entry into Bogin-

Dell’s room did not hinge upon facts discovered during the illegal search.

[¶20.]         Furthermore, Heney’s argument expands the “prompted” prong from

Murray, adopted by this Court in Boll, to not only scrutinize a warrant as an

independent source, but to scrutinize any continuing police investigation that is

“prompted,” even in part, by evidence found during an illegal search. However, Boll

cannot be read so broadly as to eliminate all further investigation in a case once an

illegal search has occurred. “The lodestar of both prongs [of the Murray analysis] is

whether suppression would place the police in a worse position than they would be

in had they not acquired the illegal information in the first instance.” United States

v. Swope, 542 F.3d 609, 615 (8th Cir. 2008) (citation omitted). Expanding the

“prompted” prong outside of examining a warrant as an independent source places

the police in a worse position than they would be in had they not conducted an



3.       A consent search is distinguishable from a search premised upon a warrant,
         because police may request consent to search an individual’s property with
         absolutely no ground for believing that the person had committed any
         wrongdoing. Florida v. Bostick, 501 U.S. 429, 434-39, 111 S. Ct. 2382, 2386-
         88, 115 L. Ed. 2d 389 (1991) (explaining that decisions in Terry, Royer,
         Rodriguez, and Delgado, inter alia, support proposition that police may
         approach someone without any suspicion and ask them potentially
         incriminating questions). When an officer not equipped with a warrant
         knocks on a door, the occupant has the ability to answer the door but refuse
         entry, to answer the door but refuse answering questions, or to ignore the
         knock altogether. See Kentucky v. King, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d
         865 (2011) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319,
         1323-24, 75 L. Ed. 2d 229 (1983)). A warrant generally deprives the occupant
         of these options.

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illegal search. If we were to adopt Heney’s analysis, police would be virtually

unable to respond to subsequent complaints of criminal activity once an illegal

search had occurred, because any future investigation would be at least partly

“prompted” by the illegal search, even if primarily motivated by a new third-party

complaint of criminal activity. Thus, we decline to apply the “prompted” test we

applied in Boll to the facts of this case. The fact that Officer Olson’s return to the

hotel may have been “in part” motivated by finding marijuana in room 212 is not, in

itself, sufficient to justify broad exclusion in this case. See United States v. Liss,

103 F.3d 617, 621 (7th Cir. 1997) (“The fact that an officer had actual suspicion,

however obtained, cannot render invalid a consent for which the officer did not need

any suspicion at all to request.”).

[¶21.]       However, just because the police are responding to a separate third-

party complaint of criminal activity does not automatically mean the evidence

obtained during the investigation of that complaint is obtained from an independent

source. We must still examine whether the evidence obtained is “come at by

exploitation of [the] illegality[.]” Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417.

Police, while responding to a later complaint, could potentially exploit an earlier

illegal search and thereby invalidate evidence from otherwise independent source.

For example, police could impermissibly exploit the illegal search by confronting a

suspect with knowledge gained during the illegal search in order to coerce a




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confession or a consent to search. 4 However, no such exploitation is alleged in this

case.

[¶22.]         Although Officer Olson knew that marijuana was present in room 212,

the new smell of marijuana smoke led him to a different room, room 208, during his

second call to the hotel. Officer Olson had reason to believe the occupants of the

two rooms may have been together, but Officer Olson had no way of knowing that

the registered guest of room 212 would be found in room 208 on this second visit to

the hotel. He did have reason to believe, however, that someone in room 208 was

smoking marijuana, based on the smell emanating from room 208. The record

reflects that Officer Olson refrained from mentioning what he had found in room

212 while asking Bogin-Dell if he could enter room 208. Furthermore, the record

does not reflect that Officer Olson’s knowledge of the marijuana cigarette in room

212 was used in any way during his interaction with the occupants of room 208. 5



4.       See, e.g., State v. Borst, 795 N.W.2d 262, 270 (Neb. 2011) (defendant “knew
         that the officers had seized the marijuana plant and the syringe from his
         home, which knowledge likely prompted him to admit his involvement with
         the controlled substances”); State v. Jennings, 461 A.2d 361 (R.I. 1983) (police
         confronted defendant with fact that police found murder weapon in
         defendant’s apartment); Perez v. People, 231 P.3d 957, 964 (Colo. 2010)
         (defendant saw police illegally seize drugs from glove compartment and later
         defendant confessed the drugs were his; “connection between the illegal
         search and the confession is a tight one”); State v. Guggenmos, 253 P.3d 1042,
         1052 (Or. 2011) (defendant’s confession not voluntary where officer “traded
         on evidence that he had observed in his unlawful search . . . by disclosing
         what he had seen and asking for consent to reenter and search the bedroom”).

5.       The danger of exploitation is greater where the illegal search and a
         subsequent consent search are in the same location. See Liss, 103 F.3d at
         621. Excluding evidence found in the same location as the illegal search—
         especially when the earlier illegal search and the later legal search are in
         close temporal proximity—may be warranted because the defendant is likely
                                                               (continued . . .)
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[¶23.]         Once inside, Officer Olson simply asked if anyone was smoking

marijuana, a reasonable question for a police officer to ask when responding to a

complaint of marijuana smell. Heney then readily admitted to smoking marijuana.

Nothing in the record indicates that this admission was prompted or coerced by

Officer Olson’s knowledge of the marijuana in room 212. Heney then, without being

asked to do so, turned his marijuana over to Officer Olson, apparently under the

mistaken belief that his California medical marijuana card granted him the ability

to possess and use marijuana while in South Dakota. Again, nothing in this

handing over of evidence seems prompted by or effected in any way by Officer

Olson’s earlier discovery. These actions gave Officer Olson probable cause to validly

arrest Heney. 6 Officer Olson did not even know that the person he had arrested

was the occupant of room 212 until after the fact. Because these actions were

independent of, and thus untainted by, the search in room 212, the evidence

gathered during Officer Olson’s return visit to the Mineral Palace Hotel was purged

of the initial taint of illegality.

[¶24.]         Although Officer Olson could not permissibly exploit knowledge gained

during the illegal search, “[t]he interest of society in deterring unlawful police

conduct and the public interest in having juries receive all probative evidence of a

crime are properly balanced by putting the police in the same, not a worse, position

________________________
(. . . continued)
         to believe he has already been caught red-handed and resistance is futile,
         thereby enabling the police to coerce the defendant into confession or consent.
         See id.

6.       It is not challenged that the cocaine on Heney’s person would be admissible if
         Heney’s arrest was based on properly obtained evidence of criminal activity.

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that they would have been in if no police error or misconduct had occurred.”

Murray, 487 U.S. at 537, 108 S. Ct. at 2533 (quoting Nix, 467 U.S. at 443, 104 S. Ct.

at 2509). Had no illegal search of room 212 occurred, Officer Olson still would have

possessed the knowledge and authority to respond to the second complaint of

marijuana smoke at the Mineral Palace. He still would have been able to inquire

about that smell to the people inside of room 208, from which the smell was

emanating. Finally, Officer Olson still would have received the same response from

the occupants of room 208, which ultimately led to Heney’s arrest. To prevent the

police from following up on such a complaint, simply because the police possessed

some knowledge obtained through illegal means would be to grant too broad of

immunity at too high a cost to society.

[¶25.]       We conclude that the second call to police and the subsequent

interaction with the occupants of room 208 constitutes an independent source of

evidence against Heney and that the evidence obtained thereby bore no causal

connection to the evidence illegally seized in room 212. Because we reach our

decision under the independent source doctrine, already recognized by this Court,

we need not decide this issue under the lesser-developed attenuation doctrine

analysis advanced by the State.

                                     Conclusion

[¶26.]       Because the challenged evidence was not come at by exploitation of

Officer Olson’s initial illegal search, we affirm the trial court’s Order denying in

part Heney’s Motion to Suppress Evidence.

[¶27.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.


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