#25222-rev & rem-JKK 

2009 SD 107

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

STEVEN CARL LARSON, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE THIRD JUDICIAL CIRCUIT 

MOODY COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE TIM D. TUCKER 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

ANDREW KNECHT 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

N. BOB PESALL Attorney for defendant 

Flandreau, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

ON OCTOBER 5, 2009 

 OPINION FILED 12/09/09 
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KONENKAMP, Justice 

[¶1.] Defendant was arrested for simple assault and jailed. Thereafter, he 

was held for 18 days without a judicial determination of probable cause, in violation 

of South Dakota law and the United States Constitution. Defendant moved to 

dismiss. The circuit court denied his motion, but gave him a presumption at trial 

that his evidence of self defense, which the State declined to preserve, did exist and 

would have been beneficial to him. Defendant was found guilty of simple assault. 

On appeal, we reverse and remand. 

Background 

[¶2.] Defendant, Steven Carl Larson, was arrested in Moody County on July 

24, 2008, and charged with simple assault in violation of SDCL 22-18-1(1), simple 

assault in violation of SDCL 22-18-1(2), and disorderly conduct in violation of SDCL 

22-18-35(1). He was alleged to have assaulted Linette Rainwater in her home on 

July 24, 2008. Brion Kimball, the Chief of Police for Coleman, South Dakota, 

investigated the incident. Officer Kimball interviewed Rainwater at her home and 

took photographs of her injuries. Rainwater told Officer Kimball that defendant 

came to her home around 8:00 a.m. She and defendant began drinking. Later in 

the morning they went out to get more alcohol. On returning to Rainwater’s house, 

the two argued. Rainwater could not remember why the argument started. She 

later testified that defendant came at her while she was sitting on the couch. She 

tried to keep him off by kicking at him. Defendant grabbed her by the throat and 

threw her around the room. He struck her on her forehead and face with his fist. 
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Afterwards, defendant left Rainwater’s home. She received eight stitches above her 

right eye. She also had marks on her neck and a black eye. 

[¶3.] Officer Kimball went to defendant’s residence. He asked defendant 

about the argument with Rainwater. Defendant initially denied everything, but 

then acknowledged that something had occurred. He claimed that Rainwater 

attacked him as he was trying to leave, jumping on his back. He merely threw her 

off of him, he said. Defendant tried to show Officer Kimball his injuries, which 

included a bite mark, redness on his arm, and scratches. Officer Kimball arrested 

defendant. Defendant asked that his injuries be photographed. Officer Kimball did 

not photograph defendant’s injuries, later testifying that he was not able to. 

[¶4.] Officer Kimball prepared a narrative of the investigation, dated July 

24, 2008. A “Uniform Complaint/Summons” ticket was issued charging defendant 

with assault. No arrest warrant was sought or issued. Defendant was transported 

to the Moody County Sheriff’s Office. After being booked, defendant was taken to 

the Minnehaha County Jail in Sioux Falls. There, defendant again requested that 

his injuries be documented, specifically asking that photographs be taken. None 

were taken. Defendant was told to sign up for sick call. He signed up, but received 

no response to his request. He then made written requests that his injuries be 

documented. The first, dated July 31, 2008, stated, “Please! I’m on hold from Moody 

Co. I need picture taken of bite mark/bruise incurred during alleged assault. Need 

A.S.A.P. before evidence disappears! Thank you.” This request was answered on 

August 1, 2008, with, “Contact your attorney for any evidentiary question or 

request you may have.” 
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[¶5.] On August 3, 2008, Defendant, a military veteran, submitted another 

inmate request form, stating, “I have also been deprived of my heart, P.T.S.D. (post 

traumatic stress disorder) meds, as well as for my hiatal hernia. I have to sick call 

twice to no avail. Please! I have been incarcerated for 11 days now and I still have 

never been arraigned, therefore I do not have an attorney to contact. I am 100% 

permanently and totally disabled. I do not have any money for a surety bond. 

Contact Moody Co. please and ask them for a PR Bond on my behalf. I have no 

other recourse open to me. Also, I was never given my rights!” This request was 

answered on August 4, 2008, with, “You are a Moody County prisoner your bond is 

$1,000 cash/surety. The medical staff is aware and signed you up for sick call.” 

[¶6.] Defendant submitted a grievance form, stating, “Moody County needs 

to be made aware of my inmate request as of 8-4-08. I do not have an attorney 

because I have been given no arraignment. If you refuse to contact Moody Co. on 

my behalf, then Minnehaha Co. will also be named in the upcoming lawsuit on 

violating my constitutional civil rights!” No response was given to this request. 

[¶7.] Defendant remained in jail for 18 days. He was provided a form to 

request court-appointed counsel on August 13, 2008. He first appeared in court on 

August 18, 2008, and was appointed counsel. After being arraigned, defendant 

pleaded not guilty. He moved to dismiss the case, alleging that the State deprived 

him of due process, violated SDCL 23A-4-1, and prejudiced his defense when it 

failed to timely arraign him and document his injuries. At a hearing on November 

18, 2008, defense counsel asked the circuit court to dismiss the charges “on grounds 

that the State’s handling of [defendant] following his arrest violated his rights to 
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due process in several different ways.” The motion was denied. But the court ruled 

that defendant would receive a “presumption at trial that the evidence which the 

State failed to preserve, if available, would have been favorable to the defendant.” 

[¶8.] Defendant waived his right to a jury trial, and, in a bench trial, the 

circuit court found defendant guilty of simple assault under SDCL 22-18-1(2), and 

acquitted him of the remaining charges. Defendant was sentenced to 60 days in jail 

with all but 18 days suspended, for which he received credit for time served. 

Defendant appeals asserting several issues, which we consolidate: whether the 

circuit court should “have dismissed the action on federal and state constitutional 

due process grounds” and for violation of SDCL 23A-4-1, which requires that 

arrested persons be brought before a committing magistrate without unreasonable 

delay.1 We review de novo alleged constitutional violations. State v. Ball, 2004 SD 

9, ¶¶18-19, 675 NW2d 192, 198-99 (citations omitted). 

Analysis and Decision 

[¶9.] In 1991, the United States Supreme Court declared that individuals 

arrested without a warrant must have a judicial probable cause determination 

1. SDCL 23A-4-1 provides: 

A law enforcement officer shall, without unnecessary delay, take the 

arrested person before the nearest available committing magistrate. 

Any person, other than a law enforcement officer, making an arrest 

shall, without unnecessary delay, take the arrested person before the 

nearest available committing magistrate or deliver him to the nearest 

available law enforcement officer. If a person arrested without a 

warrant is brought before a committing magistrate, a complaint shall 

be filed forthwith. When a person, arrested with or without a warrant 

or given a summons, appears initially before a committing magistrate, 

the committing magistrate shall proceed in accordance with the 

applicable provisions of §§ 23A-4-2 to 23A-4-5, inclusive. 
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within 48 hours after the arrest unless a bona fide emergency or other 

extraordinary circumstance exists. County of Riverside v. McLaughlin, 500 US 44, 

56, 111 SCt 1661, 1670, 114 LEd2d 49 (1991); see also Gerstein v. Pugh, 420 US 

103, 95 SCt 854, 43 LEd2d 54 (1975). We have never specifically addressed the 48-

hour rule in the constitutional context. Our statutory requirement states that any 

person arrested, with or without a warrant, must be brought before a committing 

magistrate “without unnecessary delay[.]” SDCL 23A-4-1. The statute specifies no 

particular time frame. 

[¶10.] While an officer’s “on-the-scene assessment of probable cause provides 

legal justification for arresting a person suspected of crime,” such probable cause 

will not persist to justify continued detention. See Gerstein, 420 US at 113-14, 95 

SCt at 863, 43 LEd2d 54. Arrested persons are presumed innocent, and courts 

“should make every attempt to minimize the time a presumptively innocent 

individual spends in jail.” McLaughlin, 500 US at 58, 111 SCt at 1670, 114 LEd2d 

49. Moreover, “[t]he consequences of prolonged detention may be more serious than 

the interference occasioned by arrest. Pretrial confinement may imperil a suspect’s 

job, interrupt [a] source of income, and impair [ ] family relationships. Even 

pretrial release may be accompanied by burdensome conditions that effect a 

significant restraint of liberty.” Gerstein, 420 US at 114, 95 SCt at 863, 43 LEd2d 

54 (internal citations omitted).

[¶11.] Accordingly, though our statute only requires persons arrested to be 

brought before a committing magistrate without unnecessary delay, those arrested 

without a warrant are constitutionally entitled to a judicial determination of 
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probable cause within 48 hours of arrest. See McLaughlin, 500 US at 56-57, 111 

SCt at 1670, 114 LEd2d 49. No particular post-arrest procedure is required, so long 

as probable cause is determined promptly. Id. A probable cause determination is 

not adversarial, as it can be based entirely on hearsay and written testimony. 

Gerstein, 420 US at 120, 95 SCt at 866, 43 LEd2d 54. Therefore, an arrested person 

has no right to be physically present or have representation for a probable cause 

determination. All that is required is that a neutral magistrate determine whether 

there is probable cause to believe the offense was committed by the accused. Id. at 

111, 95 SCt at 861, 43 LEd2d 54. In most circumstances, the issuance of a warrant 

based on a statement from the arresting officer suffices to meet the probable cause 

requirement. 

[¶12.] When probable cause is not judicially determined within 48 hours, the 

State bears the burden of proving that the delay was not unreasonable.2 

McLaughlin, 500 US at 56-57, 111 SCt at 1670, 114 LEd2d 49. The State must 

establish that a bona fide emergency or other extraordinary circumstance existed 

prompting the delay. Id. (“The fact that in a particular case it may take longer than 

48 hours to consolidate pretrial proceedings does not qualify as an extraordinary 

circumstance. Nor, for that matter, do intervening weekends.”). “In evaluating 

whether the delay in a particular case is unreasonable, however, courts must allow 

2. If probable cause is determined within 48 hours, the defendant bears the 

burden of proving that the delay was unreasonable. Id. That is not to say 

that all probable cause determinations made within 48 hours will be declared 

reasonable. Id. (“Examples of unreasonable delay are delays for the purpose 

of gathering additional evidence to justify the arrest, a delay motivated by ill 

will against the arrested individual, or delay for delay’s sake.”).
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a substantial degree of flexibility. Courts cannot ignore the often unavoidable 

delays in transporting arrested persons from one facility to another, handling latenight bookings where no magistrate is readily available, obtaining the presence of 

an arresting officer who may be busy processing other suspects or securing the 

premises of an arrest, and other practical realities.” Id. 

[¶13.] Here, defendant was arrested on July 24, 2008. He was immediately 

incarcerated. No arrest warrant was ever issued. He remained in jail for 18 days. 

Although the option of posting bond was available, defendant was nonetheless 

incarcerated without any finding of probable cause. In fact, no probable cause 

determination was made until September 17, 2008. Unmistakably, the State 

violated the constitutionally required 48-hour rule. 

[¶14.] What remedy is appropriate for a McLaughlin violation?3 The 

Supreme Court has not resolved this issue. See Powell v. Nevada, 511 US 79, 84-85, 

114 SCt 1280, 1283-84, 128 LEd2d 1 (1994); see also United States v. Fullerton, 187 

F3d 587, 590-91 (6thCir 1999). As one court stated, 

A motion to dismiss criminal charges with prejudice is the most 

severe sanction that can be had when the government errs in a 

criminal case. Precluding trial of the accused based on some 

unauthorized or unconstitutional conduct on the part of 

wayward prosecutors, police, or other officers within the law 

enforcement or judicial system deprives the public of its ability 

to protect itself by punishing an offender. 

3. Although we previously held that “illegal detention is a nonconstitutional and 

nonjurisdictional defect” in State v. Poss, that case was decided before the 

Gerstein/McLaughlin decisions. 298 NW2d 80, 85 (SD 1980) (citations 

omitted). 
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Commonwealth v. Viverito, 661 NE2d 1304, 1306 (Mass 1996); see also Gerstein, 

420 US at 119, 95 SCt at 865, 43 LEd2d 54 (“illegal arrest or detention does not void 

a subsequent conviction”); Powell v. State, 930 P2d 1123, 1125-26 (Nev 1997) 

(unlawful detention does not always require exclusion). 

[¶15.] Although a review of the decisions dealing with violations of the 48-

hour rule reveals no case where charges were dismissed, still no case was as 

egregious as this one. Our research yields no modern case where a person arrested 

without a warrant was held in jail for anywhere near 18 days without a probable 

cause determination. On the contrary, most cases involve only hours of prolonged 

detention and in some instances a few additional days. See United States v. Davis, 

174 F3d 941 (8thCir 1999) (2-hour delay); Griffith v. State, 788 NE2d 835 (Ind 2003) 

(63 hours); Odum v. State, 846 A2d 445, 458-59 (Md 2004) (30.5 hours);Viverito, 661 

NE2d at 1305 (30 hours); Swinney v. State, 829 So2d 1225 (Miss 2002) (43 hours); 

Powell, 930 P2d at 1124 (4 days); State v. Koch, 499 NW2d 152, 157 (Wis 1993) (92 

hours). Many of the cases involve confessions or evidence gained by the State 

during the delay, rather than evidence lost as a result of an unlawful detention. See

Griffith, 788 NE2d at 841 (confession after violation); Odum, 846 A2d at 458-59 

(prejudicial statement made); Swinney, 829 So2d at 1232 (same); Powell, 930 P2d at 

1126 (same). In situations where defendants confess or make other incriminating 

statements during an unlawful detention, courts are faced with decisions whether 

to suppress the confession, statements, or evidence.4

 (continued . . .) 

4. Some cases are civil rights suits, and therefore, do not implicate what remedy 

is available to a defendant in a criminal case. See United States v. Fullerton, 
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__________________ 

(. . . continued) 

[¶16.] Here, we have no confession or evidence gained after the 48 hours 

elapsed. Rather, we have potentially exculpatory evidence lost as a result of the 

delay. What remedy, then, would be available when suppression is not an option? 

To balance the societal interest in punishing criminal behavior and a defendant’s 

right to due process, we conclude that dismissal would be warranted “in cases of 

egregious prosecutorial misconduct or on a showing of prejudice (or a substantial 

threat thereof), or ‘irremediable harm’ to the defendant’s opportunity to obtain a 

fair trial.” See Viverito, 661 NE2d at 1306 (citation omitted). 

[¶17.] Using the McLaughlin standards, it must be determined whether the 

State had a bona fide emergency or other extraordinary circumstance justifying the 

unreasonable delay in this case. Because the circuit court did not have the benefit 

of today’s decision, the State was not required to justify its delay. Indeed, the 

record contains no explanation for it. Accordingly, the case is remanded for the 

circuit court to consider whether the State had a bona fide emergency or 

extraordinary circumstance justifying the unreasonable delay. The State has the 

burden of establishing that a bona fide emergency or extraordinary circumstance 

187 F3d 587 (6thCir 1999) (option to file a Bivens v. Six Unknown Narcotics 

Agents, 403 US 388, 91 SCt 1999, 29 LEd2d 619 (1971)); Luck v. Rovenstine, 

168 F3d 323 (7thCir 1999) (defendant brought a 42 USC 1983 claim for his 8-

day unlawful detention); Willis v. City of Chicago, 999 F2d 284 (7thCir 1993) 

(45 hours found unreasonable; defendant awarded nominal damages and 

attorney’s fees). 
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existed. If no adequate justification can be shown, the court must determine if 

defendant’s opportunity to obtain a fair trial was prejudiced by the delay.5

[¶18.] Because we reverse and remand, we decline to address defendant’s 

remaining issues. 

[¶19.] Reversed and remanded. 

[¶20.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY and 

SEVERSON, Justices, concur. 

5. We acknowledge that the court already determined that defendant was not 

prejudiced by the State’s loss of evidence (the failure to document defendant’s 

injuries) because the court gave defendant a presumption at trial that the 

evidence existed and would benefit him. However, on review of a 

McLaughlin violation, the court must consider whether defendant was 

prejudiced as a result of the unreasonable delay, i.e, denied his opportunity to 

obtain a fair trial.