(concurring in part and dissenting in part).
The majority reverses the habeas court on the grounds that the State’s identification evidence was admissible even if Chief Eagle’s counsel had moved to suppress, per United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). It therefore concludes that admission of the evi*865dence created no prejudice to Chief Eagle’s defense. In dicta, it argues that the evidence might be saved by application of the “good faith” exception to the exclusionary rule propounded in Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed. 2d 737 (1984). This is unsound. The majority is correct, however, in finding the Clerk’s letter to be an unconstitutional intrusion on Chief Eagle’s constitutional rights.
Given the unconstitutional nature of the Clerk’s letter, which was the sole premise for Chief Eagle’s arrest, the State’s subsequently acquired evidence is inadmissible. This Court has held an unsigned search warrant to be illegal, drawing an analogy to a judgment void on its face because an inspection of the judgment roll would suffice to expose its invalidity. State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495 (1970). The situation here is analogous. The penal provision of Chief Eagle’s sentence was dismissed. The Clerk’s letter ordering Chief Eagle’s confinement for nonpayment of his thirty-five (35) dollar fine, without inquiry into his indigent status, and his subsequent arrest in the vicinity of the “burglary” are matters of constitutional import, as the line of federal cases cited by the majority indicates. We have here no “ministerial error” disposable as merely a technical statutory omission. See, e.g., State v. Jackson, 371 N.W.2d 341 (S.D.1985).
The peculiar facts of this case take it out of the orbit of the Crews decision. 445 U.S. 463, 100 S.Ct. 1244. Crews reiterated the Wong Sun rationale that “ ‘[t]he exclusionary prohibition extends as well to the indirect as the direct products of such [Fourth Amendment] invasions.’ ” 445 U.S. at 470,100 S.Ct. at 1249, 63 L.Ed.2d at 545 (quoting Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453 (1963)). In considering the admissibility of a victim’s in-court and stationhouse identifications of the defendant, the United States Supreme Court focused on the fact that, prior to his, arrest, the police, in Crews, had information about the defendant’s identity, and had reason to suspect him of the crimes the evidence related to. Crews, 445 U.S. at 475, 100 S.Ct. at 1252, 63 L.Ed.2d at 548. The victim had already provided the police with a full description. Id. The court concluded: “In short, the Fourth Amendment violation in this case yielded nothing of evidentiary value that the police did not already have in their grasp. Rather, respondent’s unlawful arrest served merely to link together two extant ingredients in his identification.” Id. (footnote omitted). Interestingly, the stationhouse identification was held suppressible. Id. The Supreme Court emphasized the difference between Crews, where the police had prior independent grounds for linking the defendant to the crime, and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), where such police information was lacking. Crews, 445 U.S. at 475-77, 100 S.Ct. at 1252-53, 63 L.Ed.2d at 548-49.
Had it not been for Davis’ illegal detention, however, his prints would not have been obtained and he would never have become a suspect. Here, in contrast, the robbery investigation had already focused on respondent, and the police had independent reasonable grounds to suspect his culpability.
445 U.S. at 476, 100 S.Ct. at 1252, 63 L.Ed. 2d at 549.
Compare Crews to the facts of this case. The police had no glimmering of an idea Chief Eagle was responsible for the incident in question. He was taken in for incarceration, solely on the basis of the completely unconstitutional Clerk’s letter. He would not have been in the station to be spotted by Mrs. Stone without the illegal arrest. Neither would the police have ever gained access to the “Beanie Wienies” or glove in Chief Eagle’s possession, which constituted much of the remaining evidence against him. In short, there would be no evidence left for the State to submit. At the time of Chief Eagle’s arrest, the police only knew that a “male Indian,” of no *866certain description, had been involved. [This raises the possibility the “Clerk’s letter” may have been used as a pretext to drag him in. That the letter was signed on March 1, 1984, and the police on the streets looking for a “male Indian” on April 25, 1984, almost two months later, happened to stumble across Chief Eagle, is stretching coincidence to the breaking point. However, I am not basing my special writing on this bracketed supposition.]
Crews is simply inapplicable. The reliability of the identifications is not the issue here. The “taint” on it is not removed by any “attenuation” factors:
As for the stationhouse identification, some decisions are to be found taking the position that this kind of evidence is not to be deemed the fruit of the prior illegal arrest. This result is explained upon reasons which will not withstand analysis, such as that somehow there would inevitably have been a confrontation between victim and defendant on some later occasion, that it was within the realm of possibility that defendant could have been identified without first being taken into custody, or that the arrest is not causally connected with the identification because the witness was merely applying his recollections from the time of the crime. But the correct view under ordinary circumstances is that because a sta-tionhouse lineup is the direct result of the illegal arrest, that identification is unlawful fruit of the poisonous tree. This is not inevitably the case, however, for what is required here is analysis essentially like that used in Brown v. Illinois [422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) ] in assaying the connection between an illegal arrest and a confession.
Brown enumerated three factors: “temporal proximity,” “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.”
W. LaFave & J. Israel, Criminal Procedure, § 9.4(d), at 438 (1985). The facts of this case do not fit the factors in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
In Brown, a confession given less than two hours after an illegal arrest was excluded because there was no temporal attenuation of the causal link between the two events. 422 U.S. at 604, 95 S.Ct. at 2262, 45 L.Ed.2d at 427. This applies to the “stationhouse” identification by Mrs. Stone, the “Beanie Wienies,” and the glove. There are no intervening circumstances to break the chain. The third factor, the nature of the official misconduct, also weighs in Chief Eagle’s favor. The seizure for imprisonment in payment of a fine without inquiry into his obvious material poverty was a flagrant abuse of his rights. Further, the record indicates that the use of Clerk’s letters is routine in this state. Neither magistrate nor police paused to consider that the letter, on its face, ordered imprisonment solely to pay off a fine although our statutes (SDCL 23A-27-22; SDCL 23A-27-23) allow no such procedure on these facts, and as the majority notes, the United States Supreme Court has strongly condemned similar practices. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The Clerk’s letter was so deficient, on its face, that it is the equivalent of a warrant lacking indicia of probable cause, which even under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh’g denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), a companion case to Sheppard, 468 U.S. 981, cannot be “reasonably” relied on by police. Leon, 468 U.S. at 925, 104 S.Ct. at 3421-22, 82 L.Ed.2d at 700.
The Crews rationale undercuts not only the majority’s current opinion, but also our previous decision regarding this unfortunate Indian, State v. Chief Eagle, 377 N.W.2d 141 (S.D.1985), where admission of Mrs. Stone’s identification of Chief Eagle was approved. To stress reliability of evidence, 377 N.W.2d at 143, or probability of guilt, id., in cases involving interwoven Fourth *867and Sixth Amendment claims is to miss the point:
The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.
Kimmelman v. Morrison, 477 U.S. 365, -, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305, 322 (1986). In this case, as none of the State’s evidence survives application of the Crews rationale, Chief Eagle has clearly met the requirement of both prongs of the Strickland test. Failure to move for suppression left him virtually defenseless. His counsel did not use the most decisive weapon in his arsenal. There is no question this omission was prejudicial. See Luna v. Solem, 411 N.W.2d 656, 664 (S.D.1987) (Henderson, J., dissenting) (quoting Kimmelman, 477 U.S. at-, 106 S.Ct. at 2583, 91 L.Ed.2d at 319).
The majority’s reliance on Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), is similarly misplaced. Justice White specifically noted, in Sheppard, that the case did not involve an instance where “ ‘it is plainly evident that a magistrate or judge had no business issuing a warrant.’ ” 468 U.S. at 990,104 S.Ct. at 3429, 82 L.Ed.2d at 745 n. 7 (citation omitted). Clearly, Sheppard is not on point. As argued above, the Clerk’s letter, on these facts, cannot justify police action taken in reliance on it, even under Leon. In addition, there is no good reason to allow the State to even raise the “good faith” exception to the exclusionary rule on appeal. We have repeatedly held that the “plain error rule,” as codified in SDCL 23A-44-15, is only to be applied with caution, and in exceptional circumstances. State v. Brammer, 304 N.W.2d 111 (S.D.1981). See also State v. Dornbusch, 384 N.W.2d 682 (S.D.1986); State v. West, 344 N.W.2d 502 (S.D.1984). The same is true of SDCL 19-9-6, the civil equivalent of SDCL 23A-44-15. State v. Ellefson, 287 N.W.2d 493 (S.D.1980). What exceptional circumstances exist to justify invocation of the rule here? The State’s interests in providing restitution to crime victims, rehabilitating the prisoner, protecting society by removing him from temptation, and deterring future lawbreaking were all held insufficient to outweigh the indigent’s right to freedom where his nonpayment of a fine is not determined to be willful. Bearden v. Georgia, 461 U.S. at 670-72, 103 S.Ct. at 2072, 76 L.Ed.2d at 231-33. This indicates the gravity of the infringement made on Chief Eagle’s rights. The State can offer nothing to match it. Allowing admission of evidence seized on the authority of the “Clerk’s letter” on the basis of “good faith” is an affront to justice, Chief Eagle, and other indigents who may have been, or will be, hauled into jail unconstitutionally. His initial arrest violated the Equal Protection Clause, Bearden, id., and the Fourth Amendment. His counsel’s failure to request suppression violated the Sixth Amendment. On top of all this, Chief Eagle is to go to jail for five years for the burgling of part of a banana, a can of beans, and some candy from an unlocked car. The “exceptional circumstances” of this case demand that this Court deny the State’s “plain error” argument regarding “good faith.”
In summary, the habeas corpus court was correct in vacating petitioner’s judgment of conviction. The Clerk’s letter was invalid for any purpose. As the warrant-less arrest of a person is “ ‘quintessentially a seizure,’ ” required by the Fourth Amendment to be reasonable, Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980) (citation omitted), and no probable cause for the arrest of Chief Eagle existed without the letter, we should affirm.
Per the 1980 United States Department of Commerce, Bureau of the Census, there were 690,768 people in South Dakota; 44,-948 were American Indians; this comprises 1% of the total population of South Dakota. *868Yet, it is noted by this Justice that per the Fall 1987 writing of Dean Hinders, Associate Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, as reflected in “The Informer,” South Dakota Corrections Association authorized periodical, the American Indian comprises 23% of the inmates of the State Penitentiary. Chief Eagle, a Native American, should not be returned to the South Dakota State Penitentiary under the law which I have written aforesaid.