(dissenting).
New was illegally arrested and detained and any statements he made while under his illegal incarceration should be excluded as “fruits of the poisonous tree.” Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
New cooperated with law enforcement. He was subpoenaed to testify at the White Horse trial. Before leaving his home state of Minnesota, New asked South Dakota law en-*720foreement if there were any outstanding warrants against him in South Dakota. He was told, “No.” New came to South Dakota to testify only because of this assurance. Before he could return home to Minnesota, he was served with two warrants from Pennington County and taken into custody. While in custody, he gave incriminating statements to another prison inmate.
SDCL 23A-14r-22 provides:
If a witness comes into this state in obedience to a summons directing him to attend and testify in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of civil or criminal process in connection with matters which arose before his entrance into this state under the summons.
(Emphasis added). SDCL 23A-14-14 defines the terms used in SDCL 23A-14-22. “Summons” is a “summons, subpoena, order or other notice requiring the appearance of a witness.” SDCL 23A-14-14 (emphasis added). New was immune from the service of criminal process because he was in South Dakota in obedience to a subpoena directing him to appear and testify in the White Horse trial. SDCL 23A-14-22.
The majority states that since the Uniform Attendance of Out-of-State Witnesses Act (SDCL 23A-14-14 through SDCL 23A-14-24, inclusive) was not complied with, the charges against New should not be dismissed because the Act does not apply. However, South Dakota law grants to witnesses who appear voluntarily the same immunity from process as is granted under SDCL 23A-14r-22. Citizens Bank of Parker v. Williams, 50 S.D. 137, 208 N.W. 829, 830 (1926). At common law, a witness who entered the state voluntarily for the purpose of testifying was given the same immunity from process as a defendant. The purpose of the Act is to procure the presence of involuntary out-of-state witnesses. Id. “Certainly a witness who refuses to come into the state until he is forced to come should not be granted greater privileges or immunities than, one who comes voluntarily.” Id. Other courts have also held witnesses who voluntarily enter the state are immune from process while in the state for the purpose of testifying. State v. Taran, 253 Minn. 158, 91 N.W.2d 444 (1958); Davis v. Hackney, 196 Va. 651, 85 S.E.2d 245 (1955). As noted by the court in Davis:
The [law] was in furtherance of the common law rule and did not supplant it. Its purpose was to compel the attendance of nonresident witnesses in criminal proceedings, granting them immunity from the service of process while in attendance upon the court_ The reason behind the common law and the reason behind the Uniform Act is to secure the attendance of witnesses in courts to give testimony free from intimidation or embarrassment by being served with process in matters which arose before the witness entered the state.
85 S.E.2d at 247-48. To illegally serve New and incarcerate him is contrary to the intent and purpose of the immunity from process statutes. SDCL 23A-14r-22; Citizens Bank, 208 N.W. at 830.
It has not been shown that the Act abrogated common law immunity.* See Davis, 85 S.E.2d at 248. Therefore, New was illegally served and incarcerated.
New sought to suppress his statements made to a fellow prisoner during his illegal incarceration. We have formulated the question in Wong Sun as follows:
Thus the question becomes whether or not, granting the establishment of a primary illegality, the evidence to which objection has been made was obtained by exploitation of that illegality or by means sufficiently distinguishable to be purged of the primary taint.
State v. Pierson, 248 N.W.2d 48, 52 (S.D.1977). Statements obtained pursuant to an invalid arrest are “fruits of the poisonous tree” and should not be allowed as evidence against the defendant. See Id.; Wong Sun, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Here, South Dakota law enforcement told New that no warrants were currently out*721standing. He was subpoenaed to testify while law enforcement prepared his arrest warrant to be used upon his arrival in the state. This resulted in New’s incarceration where he made incriminating statements to a fellow prisoner. New’s statements were “obtained by exploitation of that illegality” which makes them inadmissible. Pierson, 248 N.W.2d at 52. Therefore, it was error to deny New’s motion to suppress.
If the legislature intended to abrogate the common law immunity, it could have addressed the relevant statutes as it did in 23A-14-18 when discussing punishment for failure to appear, "A witness, who has been summoned pursuant to §§ 23A-14-15 to 23A-14 — 17, inclusive ..."