State v. O'Neal

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2024 S.D. 40IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MICHAEL ADAM O’NEAL, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE CAMELA THEELER
Judge
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KATHERYN DUNN
LORANDA KENYON of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
MARTY J. JACKLEY
Attorney General
ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
ARGUED
OCTOBER 4, 2023
OPINION FILED 07/10/24
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DEVANEY, Justice
[¶1.] Michael O’Neal was charged with fifteen counts of possession of child
pornography as a result of an investigation that included a warrantless seizure of
his cell phone followed by a later search of the phone pursuant to a warrant. O’Neal
moved to suppress the evidence obtained from his phone. The circuit court
determined the seizure of the phone was unconstitutional but ultimately denied the
motion to suppress the evidence obtained from the search of the phone. The circuit
court also denied O’Neal’s motion to dismiss the charges on grounds of
preindictment delay and his motion to preclude the introduction of images on his
phone corresponding to hash values that had not been identified by the State
pursuant to his request for a bill of particulars. Following a jury trial, O’Neal was
convicted on all fifteen counts. He appeals, challenging these and other rulings by
the court. We affirm.
Factual and Procedural Background
[¶2.] On December 7, 2018, Christiana Guggenberger contacted the Sioux
Falls Police Department and reported that she found an image of a topless 10- or
11-year-old girl on O’Neal’s phone. Guggenberger, O’Neal’s then-fiancé, found the
image while O’Neal was sleeping. She provided law enforcement with O’Neal’s
phone number, the passcode to the phone, and a detailed description of the phone.
She also told them that the phone would be in O’Neal’s possession at his place of
work. Anthony Buss, a now-former detective with the Sioux Falls Police
Department responsible for investigating internet crimes against children, was
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made aware of this information. He asked Officer Ryan Hansen to make contact
with O’Neal and retrieve this phone.
[¶3.] Officer Hansen went to O’Neal’s workplace, a Wendy’s restaurant, and
explained to O’Neal that the police department had received information regarding
concerning photos on his cell phone. Officer Hansen described the phone he was
looking for as a gold iPhone in a black and white case with a cracked screen and
told O’Neal that he would be seizing this phone. O’Neal informed Officer Hansen
that the phone was in the back employee area and stated that there was nothing on
the phone. Officer Hansen followed O’Neal to the back of the restaurant where
O’Neal retrieved the phone and handed it to Officer Hansen. Upon request, he also
gave Officer Hansen its passcode. Officer Hansen then placed the phone in airplane
mode, turned it off, and transported it to the Department’s evidence bureau. He did
not search the contents of the phone.
[¶4.] On December 11, 2018, Detective Buss obtained a warrant to search
the phone. He then unlocked the phone with the passcode and found images he
believed to be child pornography. Following this search, Guggenberger contacted
Detective Buss and informed him that she had several items at her residence that
she wanted to provide to the police. Detective Buss went to her apartment on
January 2, 2019, and retrieved hard drives, SD cards, and a pillowcase containing
printed pictures from her garage. Detective Buss then requested and obtained a
warrant to search the contents of these items.
[¶5.] On one of the hard drives retrieved from Guggenberger’s apartment,
Detective Buss found additional images depicting what he believed to be child
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pornography. The hard drive included separate folders named “CG” for Christiana
Guggenberger and “M stuffs” for Michael O’Neal. According to Guggenberger, she
gave the hard drive to O’Neal in the summer of 2016 and had not used it since. The
“CG” folder mainly consisted of vacation and cat photos. “M stuffs” had another
folder inside it named “re,” which contained another “re” folder. Within the second
“re” folder Detective Buss found alleged child pornography.
[¶6.] O’Neal was indicted on February 13, 2020, on fifteen counts of
possessing, manufacturing, or distributing child pornography in violation of SDCL
22-24A-3. Aside from the alleged dates of when the conduct occurred, each count
contained identical language. 1 O’Neal filed a motion for a bill of particulars asking
the State to provide “a more particularized statement of what images and the
location of said images” are alleged for each count. In response, the State provided
O’Neal a list of hash values identifying the images associated with each count of the
indictment. 2
1. The language in each count alleged that “the Defendant . . . did commit the
public offense of Possessing, Manufacturing, or Distributing Child
Pornography (SDCL 22-24A-3(3)) in that the Defendant did knowingly
possess, distribute, or otherwise disseminate any visual depiction of a minor
engaging in a prohibited sexual act, or in the simulation of such an act[.]”
Counts 1-7 were alleged to have occurred on or about December 7, 2018, and
pertained to images found on O’Neal’s cell phone, and counts 8-15 were
alleged to have occurred on or about January 2, 2019, and pertained to
images found on the hard drive.
2. As explained by O’Neal’s forensic computer expert, Daniel Meinke, a hash
value is an identifying number computed by using various algorithms which
is “the digital equivalent of human DNA[.]” Each image or data file has a
hash value that is unique. This allows one who is examining a very large
amount of data to locate the specific files at issue.
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[¶7.] O’Neal filed several pretrial motions. In two separate motions, he
moved to suppress any evidence obtained as a result of the December 7 seizure of
his phone and the later search of his phone executed pursuant to the December 11
search warrant. He argued that the seizure violated his Fourth Amendment rights
and that the warrant was issued without probable cause. 3
[¶8.] The circuit court held a suppression hearing on these issues and after
considering the evidence and arguments presented by the parties, the court took the
matter under advisement. 4 The court later issued a memorandum decision denying
the motions to suppress. In its written opinion, the court rejected the State’s
argument that O’Neal had voluntarily consented to the seizure of his phone, or in
the alternative, that exigent circumstances justified a warrantless seizure. The
court determined the December 7 seizure of the phone was unconstitutional but
concluded that the affidavit submitted in support of the search warrant provided
sufficient probable cause to sustain the warrant. The court then determined the
evidence obtained via the December 11 search warrant was sufficiently attenuated
from the unlawful seizure of O’Neal’s phone and, therefore, declined O’Neal’s
request to suppress the evidence obtained during the search.
3. Although O’Neal’s motion to suppress also included a reference to a Fifth
Amendment violation, from our review of the record, he did not thereafter
argue to the circuit court that any of his statements to law enforcement were
procured in violation of his Fifth Amendment rights.
4. It is apparent that the parties submitted written briefs prior to the hearing,
but they are not included in the record.
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[¶9.] O’Neal also moved to dismiss the charges against him, arguing his due
process rights were violated by a thirteen-month delay between the time the first
search warrant was issued and his indictment. The court denied this motion,
concluding that O’Neal did not show actual and substantial prejudice from the
delay. Finally, O’Neal moved to preclude the admission of any images that had not
been identified by the hash values the State had provided in response to his request
for a bill of particulars. The circuit court denied O’Neal’s motion and admitted
additional images offered by the State as permissible other acts evidence under
SDCL 19-19-404(b) (Rule 404(b)).
[¶10.] During trial, the State called Guggenberger, Officer Hansen, and
Detective Buss as witnesses in its case-in-chief. At the conclusion of the State’s
evidence, O’Neal moved for a judgment of acquittal, contending that the State had
not presented a prima facie case to support the charges. He argued that the State
did not present evidence to prove he was the person who viewed or created the
images. He also argued that some of the photos did not meet the definition of what
constitutes child pornography. The circuit court denied the motion. O’Neal then
called his forensic computer expert, Daniel Meinke, as his sole witness. Meinke
described his review of the data extracted from O’Neal’s phone and the hard drive
and explained the meaning of the creation, modification, and access dates
associated with each file. According to Meinke, these dates may not be significant
for various reasons pertaining to how the devices’ operating systems store data. He
also testified that the alleged images on the phone were downloaded at the same
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time and that he could not determine whether the alleged files on the hard drive
had been opened or by whom.
[¶11.] After considering all the evidence admitted, the jury found O’Neal
guilty on all fifteen counts. The circuit court sentenced O’Neal on each count to ten
years in the penitentiary with six years suspended and ordered the sentences to run
concurrently.
[¶12.] O’Neal raises several issues on appeal which we restate as follows:
1. Whether the circuit court erred by denying O’Neal’s
motions to suppress.
2. Whether the circuit court erred when it denied O’Neal’s
motion to dismiss.
3. Whether the circuit court abused its discretion when it
admitted images corresponding to hash values that had
not been previously identified by the State.
4. Whether the evidence was sufficient to sustain the jury’s
verdict.
5. Whether the indictment was duplicitous and violated
O’Neal’s right to jury unanimity.
Analysis
1. Whether the circuit court erred by denying O’Neal’s
motions to suppress.
[¶13.] O’Neal contends the circuit court erred in denying his motion to
suppress evidence obtained as a result of the warrantless seizure of his cell phone
on December 7. He asserts that the court erred in applying the attenuation
doctrine as an exception to the exclusionary rule after concluding that law
enforcement had unlawfully seized his phone. He also maintains that the
December 11 search warrant issued after the phone was seized was not supported
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by probable cause. We first examine the question whether this warrant was
supported by probable cause because the question whether an exception to the
exclusionary rule applies in this case hinges on the validity of the December 11
search warrant.
Probable Cause
[¶14.] O’Neal argues the affidavit submitted in support of the December 11
search warrant lacked sufficient probable cause because Guggenberger was not
previously known to be an informant with a history of providing reliable
information; law enforcement failed to corroborate any of the alleged criminal
activity; and the information provided was “not indicative of illegal child
pornography.”
[¶15.] “We review the issuing court’s probable cause determination
independently of any conclusion reached by the judge in the suppression hearing.”
State v. Ostby, 2020 S.D. 61, ¶ 13, 951 N.W.2d 294, 298 (citation omitted). However,
“[o]ur review of the probable cause determination of the issuing magistrate judge is
deferential. ‘Reviewing courts are not empowered to conduct an after-the-fact de
novo probable cause determination; on the contrary, the issuing judge’s legal basis
for granting the warrant is examined with “great deference.”’” Id. “On review, we
are limited to an examination of the facts as contained within the four corners of the
affidavit.” Id.[¶16.] “In determining whether probable cause exists to support the issuance
of a search warrant, ‘[t]here must be “a showing of probability of criminal activity.”’”
Id. ¶ 14, 951 N.W.2d at 299 (alteration in original). We have further noted that
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probable cause “is a fluid concept—turning on the assessment of probabilities in
particular contexts—not readily, or even usefully, reduced to a neat set of legal
rules.” Id. ¶ 15. We therefore consider “the totality of the circumstances to decide if
there was at least a ‘substantial basis’ for the issuing judge’s finding of probable
cause.” Id.
[¶17.] The affidavit submitted in support of the search warrant included the
following factual information: 5
1. On 12/7/2018 at approximately 15:59 hours, Christina 6
Guggenberger . . . made contact with Metro
Communications wishing to report what she believed to
be child pornography. The child pornography was on a
phone belonging to her fiancé Michael A. O’Neal . . . .
2. Officer E. Bertram made phone contact with Christina a
short time later and learned that prior to calling for
police, Christina had looked at Michael’s phone while he
was sleeping. Christina told Officer Bertram that she
was able to see an image of a female that she believed to
be approximately 10 or 11 years of age with her breasts
exposed. Christina believed the female to be 10 or 11
years of age due to the size of her breasts and young
looking face. When the image was viewed, the phone was
at [her residence] in Minnehaha County.
3. Christina explained to Officer Bertram that the photo was
located on an iPhone that was gold in color with a cracked
front screen and was in a black and white protective case.
Christina also gave a Verizon number of 605-218-1887
5. The affidavit submitted in support of the search warrant was not admitted
into evidence at the hearing on the motions to suppress. However, the circuit
court’s memorandum decision relates the contents of the affidavit verbatim
and contains a footnote identifying a search warrant file number 49SWA 19-3
as its source. Had the circuit court elected not to include this information we
may have been unable to review the issue.
6. During Guggenberger’s trial testimony, she identified the correct spelling of
her first name as “Christiana.”
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that was assigned to the phone and a passcode of 011496
to unlock the phone. The phone was currently in
possession of Michael at his place of work.
4. Officer R Hansen was later dispatched to Wendy’s located
at 400 S. Lyons Ave to meet with Michael. Upon arriving
at that location Officer R. Hansen did come into contact
with Michael and the iPhone that was described to Officer
E Bertram.
5. Officer R Hansen spoke with Michael who also gave the
passcode of 011496 to be used to unlock the phone.
6. Officer R Hansen placed the phone into airplane mode
and entered [it] into evidence storage at the Law
Enforcement Center located at 320 W 4th St Sioux Falls,
SD 57104 in Minnehaha County.
7. Your Affiant knows through training and experience that
digital media such as images and videos are easily stored,
back[ed] up to, and transported on devices such as cell
phones.
8. Your Affiant is requesting a warrant to search the
defendants’ iPhone that is gold in color and in a black and
white case.
[¶18.] This Court has focused on two inquiries when making a probable cause
determination involving an informant’s tip: (1) whether there was “an ‘explicit and
detailed description of alleged wrongdoing, along with a statement that the event
was observed firsthand,’” which “entitles [the informant’s] tip to greater weight”;
and (2) “the extent to which the tip is corroborated by the officer’s own
investigation[.]” Ostby, 2020 S.D. 61, ¶ 16, 951 N.W.2d at 299 (first alteration in
original) (quoting State v. Tenold, 2019 S.D. 66, ¶ 34, 937 N.W.2d 6, 16). However,
we have further observed that “[a]n informant ‘whose identity is known, who
personally observes the alleged criminal activity, and who openly risks liability by
accusing another person of criminal activity [ ] may not need further law
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enforcement corroboration.’” State v. Rosa, 2022 S.D. 76, ¶ 20, 983 N.W.2d 562, 568
(second alteration in original) (citation omitted). Here, not only was Guggenberger’s
statement a detailed account of what she observed firsthand, entitling the
information to greater weight, but her identity was known to law enforcement.
These circumstances negate the need for further corroboration.
[¶19.] Although O’Neal acknowledges that an informant’s tip may be enough
to establish probable cause, he emphasizes the fact that Guggenberger was not
known to have a history of providing reliable information and asserts that without
such history, independent corroboration is needed. He then compares this case to
State v. Sweedland, 2006 S.D. 77, ¶ 24, 721 N.W.2d 409, 415, in which the Court
determined that there was insufficient probable cause from an informant’s tip when
law enforcement only corroborated “innocuous facts[,]” such as a license plate
number and direction of travel, rather than facts directly related to the alleged
marijuana use by the occupants in a hotel room. However, the circumstances here
are readily distinguishable from those at issue in Sweedland. In Sweedland, the
informant did not personally observe the alleged wrongdoing, i.e., the possession of
unlawful drugs, and thus did not “give an explicit and detailed account of the
event.” 2006 S.D. 77, ¶ 23, 721 N.W.2d at 415. But here, Guggenberger personally
saw the indecent image on O’Neal’s phone and related her observation to law
enforcement in an explicit and detailed statement. Detective Buss was therefore
justified in relying on Guggenberger’s information to secure a search warrant.
[¶20.] As to O’Neal’s claim that Guggenberger’s description of the photo she
found on his phone was insufficient to establish probable cause, he relies on the
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language in SDCL 22-24A-3 and argues that “there was no allegation that the girl
was engaged in a prohibited sexual act or that she was simulating such an act in
the photo as required by” this statute. He then asserts that a picture of “a naked
child is not necessarily child pornography.” While this may be true, O’Neal
misapplies this Court’s standard for determining probable cause for a search
warrant. The party seeking the warrant does not have to satisfy each element of
the crime beyond a reasonable doubt to secure a warrant; only a probability of
criminal activity must be shown.
[¶21.] The statutory definition of a “prohibited sexual act” in SDCL 22-24A-
2(17) includes the “actual or simulated exhibition of the genitals, the pubic or rectal
area, or the bare feminine breasts, in a lewd or lascivious manner[.]” The affidavit
contains Guggenberger’s description of the image she found on O’Neal’s phone of a
female “approximately 10 or 11 years of age with her breasts exposed.” Given the
broad nature of the statutory definition of a prohibited sexual act, along with the
fact Guggenberger was disturbed enough about the photo to report it to law
enforcement, there was a reasonable probability that O’Neal’s phone contained child
pornography. We therefore conclude the December 11 search warrant was
sufficiently supported by probable cause.
Exceptions to the Exclusionary Rule
[¶22.] The circuit court determined that law enforcement unlawfully seized
O’Neal’s phone and the State did not appeal this determination. “Evidence obtained
because of an unlawful seizure ordinarily must be suppressed under the
exclusionary rule.” Tenold, 2019 S.D. 66, ¶ 23, 937 N.W.2d at 13 (citation omitted).
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“[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 of ‘fruit of the poisonous tree.’” Id. (alteration in
original) (quoting State v. Heney, 2013 S.D. 77, ¶ 9, 839 N.W.2d 558, 562).
“However, ‘the progenitor of the “fruit of the poisonous tree” doctrine’—Wong Sun—
‘recognized that original lawless conduct would not taint all evidence forever.’” Id.(quoting Satter v. Solem, 458 N.W.2d 762, 768 (S.D. 1990)). As noted in Utah v.
Strieff, there are “significant costs” in applying the exclusionary rule; therefore, it is
“applicable only . . . where its deterrence benefits outweigh its substantial social
costs.” 579 U.S. 232, 237, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016) (omission
in original) (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 2163,
165 L. Ed. 2d 56 (2006)).
[¶23.] Because “[s]uppression of evidence” is the “last resort,” rather than
“first impulse,” the United States Supreme Court has recognized exceptions to the
exclusionary rule, three of which “involve the causal relationship between the
unconstitutional act and the discovery of evidence.” Id. at 237–38, 136 S. Ct. at
2061. Those three exceptions include: the independent source doctrine, the
inevitable discovery doctrine, and the attenuation doctrine. Id. at 238. This Court
has likewise recognized these three related exceptions to the fruit of the poisonous
tree doctrine. See e.g., Heney, 2013 S.D. 77, ¶ 15, 839 N.W.2d at 563 (independent
source doctrine); State v. Smith, 2014 S.D. 50, ¶ 25, 851 N.W.2d 719, 726 (inevitable
discovery doctrine); State v. Mousseaux, 2020 S.D. 35, ¶ 14, 945 N.W.2d 548, 552
(attenuation doctrine).
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[¶24.] The circuit court acknowledged all three exceptions to the exclusionary
rule and noted the State’s argument that the inevitable discovery doctrine applies
under the circumstances. However, the court determined the evidence was
insufficient to apply either the inevitable discovery doctrine or the related
independent source doctrine and, sua sponte, concluded instead that under
Mousseaux and Strieff, the attenuation doctrine applied under the circumstances
here. The court then weighed the three factors adopted in Mousseaux, finding that
(1) the time elapse of four days between the unlawful seizure and lawful search
warrant “weighs slightly against suppression”; (2) the lack of an intervening
circumstance like the preexisting arrest warrants in Mousseaux and Strieff “weighs
in favor of suppression”; and (3) the officer’s purpose and conduct weighs against
suppression because it was not clear that the officer knew his conduct was likely
unconstitutional and “[t]he phone was not seized simply on the hope that something
might turn up.” 7 Ultimately, the court determined that in light of the totality of the
factors, “the interest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence” later obtained by
7. The three factors adopted in State v. Mousseaux: (1) “look to the temporal
proximity between the unconstitutional conduct and the discovery of evidence
to determine how closely the discovery of evidence followed the
unconstitutional search”; (2) “consider the presence of intervening
circumstances”; and particularly significant, (3) “examine the purpose and
flagrancy of the official misconduct.” 2020 S.D. 35, ¶ 17, 945 N.W.2d 548, 553
(quoting Utah v. Strieff, 579 U.S. 232, 239, 136 S. Ct. 2056, 2062, 195 L. Ed.
2d 400 (2016)).
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O’Neal’s phone via a valid search warrant. 8 See Mousseaux, 2020 S.D. 35, ¶ 27, 945
N.W.2d at 553 (citation and alteration omitted).
[¶25.] The circuit court’s determination that there was no intervening
circumstance was incorrect. Neither Mousseaux nor Strieff stands for the
proposition that for a warrant to be an intervening circumstance it must have been
issued prior to the unlawful conduct. Other courts have determined that warrants
issued after unlawful conduct may act as intervening circumstances. See United
States v. Green, 2019 WL 2085434 *3 (W.D. Minn. May 13, 2019) (concluding that a
search warrant supported by sufficient lawfully obtained evidence issued after an
illegal search was an intervening circumstance); United States v. Hastings, 2011
WL 2412829 *9 (D. Minn. May 23, 2011) (determining that subsequent “search
8. On appeal, O’Neal’s argument against attenuation rests on the third factor.
In particular, he asserts the circuit court erred in determining that his
“phone was not seized simply on the hope that something might turn up.”
While we decline to apply the attenuation doctrine under the circumstances,
we conclude that the circuit court did not clearly err in its findings related to
the third factor. See State v. Boll, 2002 S.D. 114, ¶ 14, 651 N.W.2d 710, 715
(reviewing the court’s “findings of fact under the clearly erroneous standard”).
The court noted the lack of evidence that O’Neal was aware that his fiancé
had contacted law enforcement; however, because the seizure here pertained
to evidence that can be easily destroyed the circumstances support the
conclusion that the officer’s conduct was less flagrant. See Mousseaux, 2020
S.D. 35, ¶ 26, 945 N.W.2d at 555 (stating that “[f]or the violation to be
flagrant, more severe police misconduct is required than the mere absence of
proper cause for the seizure” (quoting Strieff, 579 U.S. at 241, 136 S. Ct. at
2063)). Further, although the seizure of the phone was undoubtedly for
investigatory purposes, the record supports the court’s finding that the phone
was not seized merely in the hope “that something might turn up.”
Guggenberger had already given law enforcement a credible tip that detailed
precisely what the image was and where it was located. Therefore, under the
circumstances, Officer Hansen’s conduct was “at most negligent,” rather than
flagrant. Strieff, 579 U.S. at 241, 136 S. Ct. at 2063; Mousseaux, 2020 S.D.
35, ¶ 26, 945 N.W.2d at 555.
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warrants constitute intervening circumstances” when the affidavits submitted in
support “did not include evidence obtained as a result of [d]efendant’s illegal
detention”).
[¶26.] There is, however, a pertinent distinction between the circumstances
at issue in this case and those at issue in Mousseux and Strieff that illustrates why
the scenario here is more appropriately analyzed by applying the other exceptions
to the exclusionary rule rather than the attenuation doctrine. Both Mousseux and
Strieff involved the existence of an unrelated arrest warrant that existed prior to
the unlawful stop, which authorized law enforcement to conduct a search incident
to arrest and lawfully seize evidence. Here, in contrast, the unlawful conduct was
the warrantless seizure of the phone containing the evidence at issue, and the later
search could not have been conducted without law enforcement having lawful
possession of the phone. Thus, the initial question is whether O’Neal’s phone would
have inevitably been seized in a lawful manner, followed by the question whether
the ultimate search of the phone was lawful. To answer that question, the more
straightforward course is to apply the independent source and related inevitable
discovery doctrines to the evidence in the record. See State v. Boll, 2002 S.D. 114,
¶ 14, 651 N.W.2d 710, 715 (providing that although we review the circuit court’s
findings of fact for clear error, “[o]nce the facts have been determined, [ ]the
application of a legal standard to those facts is a question of law reviewed de novo”).
[¶27.] This Court has explained that the inevitable discovery doctrine
“applies where evidence may have been seized illegally but where an alternative
legal means of discovery . . . would inevitably have led to the same result.” Smith,
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2014 S.D. 50, ¶ 25, 851 N.W.2d at 726 (omission in original). The 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). As 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. Ed. 2d 472 (1988)).
However, courts grappling with the various scenarios in which either or both of
these doctrines may apply have concluded that “the distinction between the
independent-source and inevitable-discovery doctrines is not sharp[.]” Baez, 983
F.3d at 1037 (applying both doctrines to the facts of the case and noting that “where
exactly one draws the line between the two doctrines is unimportant”). 9
9. In asserting that only the independent source doctrine need be applied here,
the specially concurring opinion focuses on a particular quote in Murray v.
United States wherein the court hypothetically compared the prospect of a
“reseizure” of evidence already seized to the “rediscovery” of evidence already
discovered. 487 U.S. 533, 542, 108 S. Ct. 2529, 2535, 101 L. Ed. 2d 472(1988). This was part of a larger discussion regarding the general policies
weighing against the application of the exclusionary rule, namely, that “while
the government should not profit from its illegal activity, neither should it be
placed in a worse position than it would otherwise have occupied.” Id.However, Murray was not a case involving an initial unlawful seizure and a
later “reseizure” of evidence, but rather one in which evidence was discovered
during an unlawful entry of a warehouse but not seized until law
enforcement obtained a warrant to lawfully search the property. Id. at 535,
(continued . . .)
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[¶28.] In regard to the application of these two doctrines here, the decision in
United States v. Lazzaro is instructive because it involves circumstances similar to
those at issue in this appeal. 637 F. Supp. 3d 640 (D. Minn. 2022). In Lazzaro, law
enforcement went to the defendant’s apartment to arrest him pursuant to a
warrant. Id. at 643. When the defendant opened the door, he was holding his
phone and then put it in his pocket. Id. After taking him into custody, the
arresting agents realized that his phone was no longer on his person. Id. In
response to a request from the case agent, another agent unlawfully entered the
defendant’s apartment and retrieved the phone, which he believed would contain
“fruits of the crime.” Id. After seizing the phone, he did not open it or otherwise
attempt to obtain information from it. Four days later, a warrant was issued to
search the phone. Id.
[¶29.] The defendant moved to suppress any evidence that may be obtained
from the phone, arguing that the warrantless search of his apartment and seizure of
the phone violated his Fourth Amendment rights. Id. at 644. He further claimed
that the warrant issued to search his phone did not validate the unlawful search of
his apartment. Id. The government argued that the independent source doctrine
precludes suppression because law enforcement obtained a valid warrant prior to
searching the phone. Id. at 644–45.
[¶30.] The court, however, determined that the phone in the apartment was
akin to a bag in an apartment containing evidence and noted that “a warrant
________________________
(. . . continued)
108 S. Ct. at 2532. Thus, the only issue before the Court was whether the
independent source doctrine could be applied to the facts of the case.
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authorizing the search of a container does not give officers authority to search for
the container in any location they choose.” Id. at 645. Therefore, the court
examined “whether the agents would have obtained a valid warrant to search
Lazzaro’s apartment and seize the phone.” Id. In determining that “any evidence
obtained from the phone is admissible under the independent-source doctrine (or,
alternatively, the inevitable-discovery doctrine),” the court made several
observations. Id. at 646. The court noted that there was “probable cause to believe
that the phone contained evidence of and was used to commit crimes”; “the warrant
to search the phone was supported by probable cause even setting aside any
information that . . . may have been obtained through the illegal search”; law
enforcement “did not obtain any information from the illegal search”; and law
enforcement “only obtained physical custody of the phone, which they already knew
was in the apartment.” Id. at 645–46.
[¶31.] When considering the circumstances here, there are two hypothetical
scenarios that would have inevitably led to a lawful seizure of the phone. See Boll,
2002 S.D. 114, ¶ 21, 651 N.W.2d at 716 (noting that the inevitable discovery is
hypothetical in nature and does not apply if the alternative legitimate source is
actually used to seize the evidence). 10 As to the first, there was nothing unlawful
10. Although the specially concurring opinion relies on Boll to conclude that the
inevitable discovery doctrine does not apply to the case at hand, Boll does not
refer to an alternative source of “investigation,” but rather an “alternative
legal means” for the seizure of the evidence that “has been realized[.]” 2002
S.D. 114, ¶ 21, 651 N.W.2d at 716–17. In Boll, because the alternative legal
means had been realized, i.e., a search warrant that had been executed to
seize the evidence at issue, the inevitable discovery doctrine did not apply.
Here, in contrast, O’Neal’s phone was seized unlawfully, and the “alternative
(continued . . .)
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about Officer Hansen going to O’Neal’s workplace and engaging in a conversation
about the phone he was looking for and the reasons why. If, during this visit,
O’Neal had refused to turn over his phone, there would likely have been grounds, at
that point, to seize the phone without a warrant based on exigent circumstances. 11
Once O’Neal was put on notice that he was being investigated for the possession of
child pornography, he would certainly have the incentive to either conceal or
destroy the phone or its incriminating contents, something that Meinke agreed was
easy to do.
[¶32.] In the alternative, if law enforcement had not perceived the existence
of exigent circumstances and instead opted to seek a warrant to seize and search
the phone before making any contact with O’Neal, the record supports a conclusion
________________________
(. . . continued)
legal means” discussed above by which it could have been seized were
hypothetical as neither had been realized at the time of the seizure. Thus,
this case is unlike the scenario in Boll or in other cases wherein evidence is
seen or discovered via an unlawful entry but not seized until a lawful search
warrant was later acquired.
11. There is a considerable body of case law in which seizures of cell phones or
electronic devices in the absence of a warrant have been condoned. See, e.g.,
Riley v. California, 573 U.S. 373, 391, 134 S. Ct. 2473, 2487, 189 L. Ed. 2d
430 (2014) (noting that officers “may be able to rely on exigent circumstances
to search the phone immediately” if there are “specific concerns about the
potential loss of evidence in a particular case”); United States v. Mays, 993
F.3d 607, 616 (8th Cir. 2021) (finding that “exigent circumstances exist when,
if the property is not seized immediately, there is a risk that the evidence
contained therein would be lost”); United States v. Sherman, 2023 WL
2860632 *5 (D. Minn. April 10, 2023) (determining “[t]he Eighth Circuit has
repeatedly found the risk that evidence of child-pornography offenses would
be removed or destroyed from electronic devices presented exigent
circumstances justifying the immediate seizure of those devices”) (citing
Mays, 993 F.3d at 616); United States v. Clutter, 674 F.3d 980, 983, 985 (8th
Cir. 2012); United States v. Stephen, 984 F.3d 625, 631 (8th Cir. 2021), reh’g
denied (Feb. 5, 2021), cert. denied, 142 S. Ct. 270, 211 L. Ed. 2d 125 (2021)).
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that it is “more likely than not” that the phone would have inevitably been seized
lawfully given the contents of the affidavit presented here. See Guthrie v. Weber,
2009 S.D. 42, ¶ 24, 767 N.W.2d 539, 547 (citation omitted). In a slightly different
context, the court in Baez explained the relevant inquiry as follows: “To determine
whether evidence within the scope of a valid warrant would have been acquired had
a prior unlawful search not occurred, we ask whether (1) law enforcement ‘would
have sought a warrant even if the [unlawful] search had not occurred,’ and (2) ‘the
warrant was supported by probable cause even without information gained from the
[unlawful] search.’” 983 F.3d at 1037 (alterations in original) (citation omitted).
[¶33.] As to the first inquiry, given the information already received from
Guggenberger, absent any perceived exigent circumstances, we can reasonably infer
that law enforcement would have sought a warrant for both the seizure and search
of the phone. See Guthrie, 2009 S.D. 42, ¶ 26, 767 N.W.2d at 548 (upholding the
application of the inevitable discovery doctrine after determining it was logical to
conclude that law enforcement would have obtained a search warrant to seize
evidence given that they had an independent source that would have supported the
warrant). So too here, the affidavit submitted in support of the December 11
warrant would have provided sufficient probable cause to seize O’Neal’s phone. In
addition to Guggenberger’s description of the phone and the concerning photo it
contained, she advised law enforcement, as noted in the affidavit, that “[t]he phone
was currently in possession of [O’Neal] at his place of work.” Further, it is apparent
from the record that law enforcement knew that O’Neal worked at Wendy’s.
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[¶34.] As to the second inquiry, Officer Hansen did not ask O’Neal to show
him anything on the phone and he did not search the phone himself. Officer
Hansen only secured the phone that O’Neal produced and transported it to the
evidence bureau. Further, the information in the affidavit providing probable cause
to believe the phone contained child pornography came from Guggenberger and was
provided to law enforcement prior to them having any contact with O’Neal. And as
noted in the affidavit, she provided a detailed description of the phone, including its
number, colors of the phone and phone case, and a description of a crack on the
screen. She also provided the passcode to the phone. Thus, this same information
included in the affidavit submitted in support of a warrant to search the phone
would have likewise provided probable cause to seize the phone. It is therefore
apparent that even without the interaction between Officer Hansen and O’Neal,
this phone would have inevitably been seized and searched pursuant to a lawful
search warrant. For these reasons, we affirm the denial of O’Neal’s motions to
suppress.
2. Whether the circuit court erred when it denied
O’Neal’s motion to dismiss.
[¶35.] O’Neal claims his constitutional rights to due process and a fair trial
guaranteed under the Fifth and Fourteenth Amendments were violated by the
thirteen-month delay between the issuance of the search warrant for his cell phone
and his indictment. We review “[a]n alleged violation of a defendant’s
constitutional right to due process” under a de novo standard. State v. Krouse, 2022
S.D. 54, ¶ 47, 980 N.W.2d 237, 251.
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[¶36.] The “Due Process Clause has a limited role to play in protecting
against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct.
2044, 2048, 52 L. Ed. 2d 752 (1977). The “statutes of limitations . . . provide ‘the
primary guarantee, against bringing overly stale criminal charges.’” Id. However,
“the ‘statute of limitations does not fully define (defendants’) rights with respect to
the events occurring prior to indictment[.]’” Id. (parens in original).
[¶37.] Dismissal of an indictment is warranted when there is a showing “that
the preindictment delay . . . caused substantial prejudice to [a defendants’] rights to
a fair trial and that the delay was an intentional device to gain tactical advantage
over the accused.” United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30
L. Ed. 2d 468 (1971); see also State v. Stock, 361 N.W.2d 280, 282 (S.D. 1985)
(adopting the test from Marion). “A defendant bears the burden of proving actual
and substantial prejudice attributable to pre-indictment delay.” United States v.
Brockman, 183 F.3d 891, 895 (8th Cir. 1999). “[T]he burden of establishing
justification for [preindictment] delay rests squarely upon the state.” Stock, 361
N.W.2d at 284. As this Court has pointed out, “Marion clearly stands for the
proposition that ‘proof of prejudice is generally a necessary but not sufficient
element of a due process claim, and that the due process inquiry must consider the
reasons for the delay as well as the prejudice to the accused.’” Id. at 283.
[¶38.] O’Neal argues on appeal, as he did below, that he “lost the ability to
review crucial evidence leading up to trial.” In particular, he claims he was
prejudiced by the fact that any recording of Guggenberger’s phone call with Officer
Bertram in which she reported the photo she found on his phone and the recording
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of Officer Hansen’s interaction with O’Neal had “fallen off the server” as a result of
the delay. O’Neal thus claims that he “was denied the opportunity to review
potentially exculpatory evidence related to the seizure of his cellphone.” He further
claims that he could not properly prepare a cross-examination of Guggenberger or
evaluate the legal issues.
[¶39.] However, the possibility that exculpatory evidence might have been
lost is not sufficient to establish actual and substantial prejudice. First, it is not
clear from the record below that recordings of the officers’ interactions with
Guggenberger and O’Neal previously existed. 12 If the recordings did exist, whether
they would have contained exculpatory evidence is purely speculative. Second,
O’Neal seems to miss the obvious point that despite the lack of a recording, Officer
Hansen’s testimony was viewed by the circuit court as evidence supporting O’Neal’s
claim that the seizure of his phone was unlawful. O’Neal also relied on the
testimony from Officer Hansen at trial that he was cooperative and had nothing to
hide when arguing to the jury that he did not knowingly possess child pornography.
Thus, the absence of a recording did not deprive O’Neal of his ability to present his
defense. Third, O’Neal does not claim that any witnesses were lost as a result of
12. Officer Hansen was not wearing a body camera during his interaction with
O’Neal, but he was wearing a microphone. He testified that the microphone
could have recorded the conversation, but there was no evidence that the
conversation had for certain been recorded. Additionally, O’Neal admitted to
the circuit court that he did not have any evidence indicating that the call
between Guggenberger and Officer Bertram had actually been recorded, and
the State advised the court it was not aware of such a recording. However,
the State did acknowledge that if there had been any recording of this call, it
would no longer be on the server.
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the delay, and he was able to cross-examine both Officer Hansen and
Guggenberger.
[¶40.] Given O’Neal’s failure to show actual and substantial prejudice
resulting from the delay, it is unnecessary to consider the State’s reasons for the
delay. See United States v. Bartlett, 794 F.2d 1285, 1293 (8th Cir. 1986) (holding
that since the defendant failed to prove substantial and actual prejudice “it [is]
unnecessary for [the court] to determine whether the government delay was ‘an
intentional device to gain tactical advantage over the accused’”). Even if we did
consider this factor, O’Neal has not pointed to any evidence in the record that
suggests the State delayed the indictment to gain some tactical advantage. When
asked by the circuit court at oral argument to identify the reasons for the
preindictment delay, the State referred to testimony from Meinke regarding the
volume of the images extracted from O’Neal’s phone and hard drive that needed to
be examined. 13 Notably, in O’Neal’s argument to the court on his motion to exclude
additional images, he also referred to the large volume of evidence and the time
required to properly examine it. Based on the record before the circuit court, there
was no error in denying O’Neal’s motion to dismiss.
3. Whether the circuit court abused its discretion when
it admitted images corresponding to hash values
that had not been previously identified by the State.
[¶41.] O’Neal contends the circuit court improperly allowed the State to
admit images corresponding to hash values that had not been previously identified
13. Meinke testified that O’Neal’s phone contained around 386,000 images,
56,278 of which were pictures on the phone’s camera roll. Additionally,
Meinke testified there were approximately 870,000 pictures on the hard drive
that contained the alleged child pornography.
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in the State’s response to his request for a bill of particulars. On the day prior to
trial, the State provided defense counsel with additional hash values for the images
it intended to offer at trial. Upon receiving this information, O’Neal filed a motion
to preclude the admission of the images associated with these hash values. He
claimed that the admission of these images would violate his right to due process
and to a fair trial because he had been building his defense solely on the previously
provided hash values. He argued that his expert would not have sufficient time to
locate and examine these images to assist in the cross-examination of witness
testimony related to this evidence or to prepare a rebuttal.
[¶42.] In response, the State explained that the hash values identified for
counts 1, 3, 4, 5, 6, and 7 in response to O’Neal’s request for a bill of particulars
were associated with thumbnail images. To demonstrate that O’Neal had clicked on
each thumbnail and viewed a larger image of the photo depicted therein, the State
sought to admit, as additional exhibits, these larger images found on the phone’s
camera roll. The State argued that this was res gestae evidence because it related
directly to whether the specific images identified for each count were knowingly
possessed by O’Neal, an element the State needed to prove to convict him on these
charges. The State further noted that this evidence was particularly relevant if
O’Neal was going to claim, as a defense, that he did not knowingly possess these
images. As to O’Neal’s due process concerns, the State explained that these larger
images were included in the data provided to the defense expert long before trial.
The State asserted that the decision by the defense to focus only on the hash values
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identified in response to O’Neal’s request for a bill of particulars should not
preclude the admission of other relevant information contained on his phone.
[¶43.] In denying O’Neal’s motion, the circuit court advised that it was
treating the evidence as other acts under Rule 404(b). The court determined that
because the images were offered to show “O’Neal had clicked on the thumbnail that
then popped up this image,” they were relevant to show he had knowledge of the
images, the intent to look at them, and that they did not accidentally end up on his
phone.
[¶44.] “We review a circuit court’s decision to admit other act evidence for an
abuse of discretion.” State v. Evans, 2021 S.D. 12, ¶ 25, 956 N.W.2d 68, 79. “An
abuse of discretion ‘is a fundamental error of judgement, a choice outside the range
of permissible choices, a decision, which, on full consideration, is arbitrary and
unreasonable.’” State v. Birdshead, 2015 S.D. 77, ¶ 51, 871 N.W.2d 62, 79.
[¶45.] Given the nature of the evidence at issue, the circuit court could have
foregone a Rule 404(b) analysis and admitted these images as either direct evidence
of the charged crimes, or at the very least, res gestae. They were simply larger
versions of the same thumbnail images identified in response to O’Neal’s bill of
particulars offered to prove that O’Neal had accessed and maintained control over
them. “‘Res gestae,’ also known as intrinsic evidence, is evidence of wrongful
conduct other than the charged criminal conduct offered for the purpose of
providing the context in which the charged crime occurred.” State v. Otobhiale,
2022 S.D. 35, ¶ 16, 976 N.W.2d 759, 767 (quoting 29A Am. Jur. 2d Evidence § 858
(2022)). To the extent the larger images of these photos could be construed as
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something other than direct evidence, they are certainly intrinsically relevant to the
charged conduct. This Court has stated that “res gestae, as applied to a crime,
includes the complete criminal transaction from its beginning or starting point in
the act of [the] accused until the end is reached.” State v. Jones, 2002 S.D. 153,
¶ 15, 654 N.W.2d 817, 820 (emphasis added) (citation omitted). Simply put, res
gestae evidence “completes the story.” United States v. Reed, 978 F.3d 538, 543 (8th
Cir. 2020). The larger images offered by the State complete the story.
[¶46.] With respect to O’Neal’s due process argument regarding the timing of
the State’s disclosure, it is also apparent that the circuit court properly considered
whether O’Neal would be unfairly prejudiced if these larger images were admitted.
The court noted that O’Neal’s expert, Meinke, was provided all the data that had
been extracted from the phone long before the trial started. Also, in response to
questions from the court, Meinke testified that on the morning before the start of
trial, he was able to verify these newly identified hash values and export the data
related to these images in forty-five minutes. Given these circumstances, the circuit
court did not abuse its discretion by admitting this evidence.
4. Whether the evidence was sufficient to sustain the
jury’s verdict.
[¶47.] At the close of the State’s evidence O’Neal moved for a judgment of
acquittal. The circuit court denied O’Neal’s motion and O’Neal now argues the
court erred by doing so. “[A] motion for judgment of acquittal attacks the
sufficiency of the evidence, which is a question of law whether the motion is
considered before or after the jury’s verdict.” Krouse, 2022 S.D. 54, ¶ 34, 980
N.W.2d at 247 (alteration in original) (quoting State v. Wolf, 2020 S.D. 15, ¶ 12, 941
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N.W.2d 216, 220). “In measuring the sufficiency of the evidence, we ask whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68 (quoting
State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83). “If the evidence, including
circumstantial evidence and reasonable inferences drawn therefrom sustains a
reasonable theory of guilt, a guilty verdict will not be set aside.” State v. Smith,
2023 S.D. 32, ¶ 45, 993 N.W.2d 576, 591 (citation omitted). “[W]e will not resolve
conflicts in the evidence, assess the credibility of witnesses, or evaluate the weight
of the evidence.” Id. (alteration in original) (citation omitted).
[¶48.] O’Neal argues “there was insufficient evidence that [he] would have
been the one to have viewed or created these images on either the cellphone or hard
drive devices.” He notes that the evidence showed that Guggenberger also had
access to both the hard drive and his cell phone and provided the correct passcode
for the phone to law enforcement.
[¶49.] “To prove the crime possessing, distributing, or otherwise
disseminating child pornography under SDCL 22-24A-3(3), the State needed to
establish that [the defendant] ‘[k]knowingly possesse[d], distribute[d], or otherwise
disseminate[d] any visual depiction of a minor engaging in a prohibited sexual act,
or in the simulation of such an act.’” State v. Linson, 2017 S.D. 31, ¶ 6, 896 N.W.2d
656, 659 (first alteration added, rest in original) (citation omitted). “Although
possession is not statutorily defined, this Court (in a possession of marijuana case)
has stated that it ‘signifies dominion or right of control over [contraband] with
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knowledge of its presence and character.’” Id. (parens and alteration in original)
(citation omitted). Importantly, “possession can either be actual or constructive and
need not be exclusive[,]” and it “may be proven by circumstantial evidence.” Id.(emphasis added) (citation omitted).
[¶50.] A review of the record reveals that a rational trier of fact could have
found the element of knowing possession beyond a reasonable doubt. Detective
Buss testified as to when these images on the phone were downloaded and at what
location the download took place. For instance, one of the images was downloaded
at a location matching the Bishop Dudley House at a time when O’Neal was a
resident at the shelter and Guggenberger testified that she had never been at this
facility. As to the images on the hard drive, Guggenberger testified that she gave
the hard drive to O’Neal in 2016, and while Detective Buss was not able to identify
where and when the images on the hard drive were downloaded, he testified that
the types of images found in the folder containing the alleged child pornography
were consistent with the types of images found on O’Neal’s cell phone. In contrast,
the images found in the “CG” folder used by Guggenberger were primarily of
vacations and cats.
[¶51.] Although Guggenberger had access to these devices, this Court has
said possession does not have to be exclusive, and the jury instruction defining the
term “knowingly” contained this rule. Finally, the jury heard testimony from
Guggenberger that she did not download the images onto O’Neal’s phone or access
O’Neal’s folders on the hard drive. It was up to the jury to weigh the evidence and
make credibility determinations. Based on this record, there was sufficient
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evidence for a rational trier of fact to find the essential elements of the crime
charged.
5. Whether the indictment was duplicitous and
violated O’Neal’s right to jury unanimity.
[¶52.] O’Neal contends that his due process right to jury unanimity was
violated by duplicity in the indictment. He argues that “each individual juror could
have relied on a different combination of individual allegations to find [him] guilty
of fifteen counts of possession, manufacture, or distribution of child pornography.”
In particular, he suggests that because of the larger images of the thumbnails
admitted as additional exhibits, the jury instructions “did not specif[y] the distinct
alleged act to have violated the law.” He then relies on this Court’s directives in
State v. Muhm to assert that the circuit court should have provided the jury with a
unanimity instruction. 2009 S.D. 100, ¶ 33, 775 N.W.2d 508, 519 (holding that
“[w]here the prosecution declines to make an election on a duplicitous count and the
evidence indicates the jurors might disagree as to the particular act defendant
committed, a standard unanimity instruction should be given”).
[¶53.] We first note that O’Neal did not raise this issue to the circuit court.
“[W]hen ‘an issue has not been preserved by objection at trial,’ this Court may
conduct a limited review to consider ‘whether the circuit court committed plain
error.’” State v. Manning, 2023 S.D. 7, ¶ 40, 985 N.W.2d 743, 756 (alteration in
original) (citation omitted). “To establish plain error, an appellant must show (1)
error, (2) that is plain, (3) affecting substantial rights; and only then may this Court
exercise its discretion to notice the error if, (4) it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citation omitted).
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[¶54.] Here, O’Neal cannot establish the first prong because there was no
error. “Duplicity is the joining in a single count of two or more distinct and
separate offenses.” State v. Babcock, 2020 S.D. 71, ¶ 39, 952 N.W.2d 750, 762
(citation omitted). “In other words, a duplicitous indictment or information includes
a single count that captures multiple offenses[.]” Id. (alteration in original)
(citation omitted).
[¶55.] In this case, the indictment was not duplicitous, and it was made very
clear to the jury that there was only one photo associated with each count; the
larger image was simply what popped up after clicking on the thumbnail image of
the photo. In fact, the jury received an instruction that specified the particular
exhibit related to each count. 14 Further, the jurors were properly instructed to
separately consider each count and the evidence that accompanied it, and they were
also informed that their verdict as to each count must be unanimous. O’Neal’s right
to jury unanimity was not violated.
[¶56.] Affirmed.
[¶57.] JENSEN, Chief Justice, and KERN, Justice, concur.
[¶58.] SALTER, Justice, concurs in part and concurs specially.
[¶59.] MYREN, Justice, concurs in part and concurs in result in part.
14. For example, the jury was told that exhibit 1 related to count 1, exhibit 2
related to count 2, and so on. The larger images of the thumbnails were
admitted at trial as the same number corresponding to the thumbnail
exhibit, but with an “A,” for example, 1A, 3A, etc.
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SALTER, Justice (concurring in part and concurring specially).
[¶60.] I write separately on the suppression issue. I join the portion of the
Court’s opinion that resolves the question under the independent source doctrine.
Although 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 one that actually occurred. 16
[¶61.] The December 11 warrant allowed officers to, in the words of the
United States Supreme Court, “reseize” O’Neal’s telephone through lawful means.
See Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2535, 101 L. Ed. 2d
472 (1988). In Murray, the Supreme Court rejected the idea that unlawfully seized
property must first be returned before it can be lawfully reseized:
It seems to us . . . that reseizure of tangible evidence already
seized is no more impossible than rediscovery of intangible
evidence already discovered. The independent source doctrine
does not rest upon such metaphysical analysis, but upon the
policy that, while the government should not profit from its
15. The circuit court determined the inevitable discovery rule did not apply for
similar reasons.
16. I also agree with the view expressed by Justice Myren that the non-
thumbnail images used at trial do not constitute res gestae. These images
are, as he notes, direct evidence of the charges contained in the indictment.
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illegal activity, neither should it be placed in a worse position
than it would otherwise have occupied.
Id.[¶62.] Regardless of the precise basis, O’Neal fails to account for the essential
component of causation upon which “fruit of the poisonous tree” is based. Officer
Hansen’s illegal seizure of the phone, alone, yielded no evidence, and there is
nothing to suppress. But to successfully invoke the remedy of exclusion for the
contraband images discovered in the later search, O’Neal must establish that the
illegality was actually exploited.
[¶63.] “When the issue is whether challenged evidence is the fruit of a Fourth
Amendment violation, the defendant bears the initial burden of establishing [a]
factual nexus between the constitutional violation and the challenged evidence.”
State v. Rosales, 2015 S.D. 6, ¶ 13, 860 N.W.2d 251, 256 (quoting United States v.
Marasco, 487 F.3d 543, 547 (8th Cir. 2007)). The Supreme Court has held that
“evidence will not be excluded as ‘fruit’ unless the illegality is at least the ‘but for’
cause of the discovery of the evidence.” Segura v. United States, 468 U.S. 796, 815,
104 S. Ct. 3380, 3391, 82 L. Ed. 2d 599 (1984), abrogated on other grounds by
California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).
[¶64.] And even where a defendant establishes “a factual nexus and but-for
causality, evidence is [not] fruit of the poisonous tree simply because it would not
have come to light but for the illegal actions of the police.” Rosales, 2015 S.D. 6,
¶ 14, 860 N.W.2d at 257 (cleaned up) (quoting Segura, 468 U.S. at 815, 104 S. Ct. at
3391). “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
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3391 (quoting United States v. Crews, 445 U.S. 461, 471, 100 S. Ct. 1244, 1250, 63
L. Ed. 2d 537 (1980)).
[¶65.] Here, O’Neal has not identified how police officers exploited Officer
Hansen’s illegal seizure of his phone, and there is no readily apparent reason for
finding resulting taint. Despite the fact that Officer Hansen’s seizure of the phone
was not authorized by the Fourth Amendment, he did not search it in any way.
Instead, Officer Hansen placed the phone in airplane mode, shut it off, and secured
it as evidence. The phone was searched only after the issuance of the December 11
search warrant which was supported by probable cause based upon what
Guggenberger had reported. It is true, of course, that the police already possessed
the phone, but O’Neal has not explained how the result of the search would have
been different if the police had seized the phone after the issuance of the warrant.
[¶66.] The remedy of exclusion is a judicial creation that serves a specific
purpose. It provides a serious consequence in criminal prosecutions to deter officers
from acting unlawfully. The Supreme Court has described the “social costs” of
exclusion as “substantial[,]” United States v. Leon, 468 U.S. 897, 907, 104 S. Ct.
3405, 82 L. Ed. 2d 677 (1984), and justified only where it serves the deterrent
objective upon which it is premised—not reflexively upon a showing of a Fourth
Amendment violation. See Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159,
2163, 165 L. Ed. 2d 56 (2006) (“Suppression of evidence . . . has always been our last
resort, not our first impulse.”).
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MYREN, Justice (concurring in part and concurring in result in part).
[¶67.] On issue one, regarding the circuit court’s denial of the motion to
suppress, I concur in the result. I would affirm the circuit court’s denial of the
motion to suppress on the grounds utilized by the circuit court–the attenuation
doctrine.
[¶68.] On issue two, regarding the circuit court’s denial of the motion to
dismiss the indictment, I concur in the result. This record does not establish that
the government’s delay in prosecuting the case was “an intentional device to gain
tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 324,
92 S. Ct. 455, 465, 30 L. Ed. 2d 468. As the majority opinion notes in paragraph 40,
the State explained the delay in prosecution was the result of the volume of images
that the State needed to examine. No discussion of prejudice caused by the delay is
necessary to resolve this issue.
[¶69.] On issue three, O’Neal argued that the circuit court should preclude
the admission of specific photographs because the State had not previously
identified those images to the defense. The record establishes that the additional
images were, in fact, larger versions of thumbnail images that the State had
provided to the defense in response to its request for a bill of particulars. The State
asserted that when O’Neal clicked on the thumbnails on his computer, he opened
the larger images, which were the child pornography the indictment charged him
with knowingly possessing. These images were not other act evidence or res gestae.
They were direct proof of the crimes charged by the State. The circuit court did not
abuse its discretion in admitting this evidence.
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[¶70.] I concur on issues four and five.
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