State v. Thunder

#25164-a-GAS

2010 SD 3

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BARRY GLENN THUNDER, Defendant and Appellant.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *
HONORABLE JOSEPH NEILES
Judge

* * * *

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

RYAN KOLBECK
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED NOVEMBER 17, 2009

OPINION FILED 01/06/10
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SEVERSON, Justice

[¶1.] Barry Glenn Thunder (Thunder) appeals his conviction of rape and

possession and manufacture of child pornography. The sole issue is whether Officer

Flogstad violated Thunder’s right against unreasonable searches when he viewed,

without consent, a warrant, or exigent circumstances, videos stored on a cell phone

Thunder used. The circuit court denied Thunder’s motion to suppress. We affirm.

BACKGROUND

[¶2.] Thunder began living at 3520 North Eighth Avenue in Sioux Falls,

South Dakota, in September 2007. Dean Wilson owned the home, but leased it to

Harry Thunder (Harry), Thunder’s father, and Darlene Peneaux (Darlene). Harry

made the rent payments, and Darlene would contribute when necessary. Thunder

did not contribute to the rent payments. The bedroom Thunder occupied was located

in the northeast corner of the basement of the house. He had a bed, a television, and

other personal items in this bedroom. A lock was on the door of the bedroom;

however, no key to the lock existed. Thunder opened the lock using a wire hanger.

[¶3.] There were several other residents of the home. Sonny Thunder

(Sonny), Harry and Darlene’s son, also had a bedroom in the basement of the home.

Darlene has a daughter from a previous relationship, Jessica Longcrow (Jessica). In

February or March 2008, Jessica, Gervis Fool Bull (Gervis), and their two daughters

moved into the home temporarily. The family resided in a third bedroom on the

south side of the basement. Jessica, Gervis, and their two daughters moved out of

the home on May 10, 2008.

[¶4.] Harry and Darlene had repeated problems with Thunder during the

time he lived in their home. As a result, Harry and Darlene asked Thunder to leave
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their home on several occasions. On May 24, 2008, Darlene asked Thunder to pack

his things and move out. Thunder argued with Darlene, and she called the police.

The police arrived at the home, went down to the basement, knocked on the door of

the bedroom Thunder occupied, and escorted Thunder from the home. Following the

advice of the police, Darlene locked the entrances and windows of the home. Dean

Wilson, the owner of the residence, appeared with police officers the following

morning. Several neighbors had informed Wilson that Thunder broke a basement

window and entered the home during the night. After finding Thunder in the

bedroom he had occupied, police arrested Thunder and again removed him from the

home. Wilson insisted that Darlene and Harry remove Thunder’s property from the

home and ensure that he not be allowed on the premises.

[¶5.] On May 26, 2008, Harry and Darlene used a wire hanger to open the

door on the bedroom Thunder had occupied. They intended to clean the room and

remove Thunder’s property. Harry or Darlene did not seek or receive Thunder’s

permission to enter the bedroom. Harry found a Qwest cell phone while cleaning the

bedroom. Harry recognized the cell phone as one of three identical phones Darlene

purchased in 2005 to be used by her, Jessica, and Sonny. The three had used these

cell phones until the contract was terminated in 2006.* At some point, Thunder

began using the cell phone as an alarm clock. The cell phone also had the ability to

* Both Sonny and Jessica claimed ownership of the cell phone found in the
bedroom Thunder occupied. They both testified they had not given the cell
phone to Thunder and had not given him permission to use the cell phone for
any purpose. However, Jessica was aware Thunder was using the cell phone,
as she had seen it in the bedroom he occupied when she entered to retrieve
things he had taken from her bedroom.

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take and store pictures without being activated. After finding the cell phone, Harry

activated it in Sonny’s name, transferred Sonny’s cell phone number to it, and gave it

to Sonny.

[¶6.] After Sonny received the cell phone, he began familiarizing himself with

it. He soon discovered sixteen thumbnail images and opened two of the images to full

screen view. Sonny observed one of Jessica’s daughters in the pictures. In one

picture, the girl appeared without pants or underclothing, thereby exposing her

vaginal area. Another picture depicted a penis touching the vaginal area of the little

girl. Sonny believed the pictures had been taken in the bedroom Thunder used.

Sonny immediately notified Harry, Darlene, and Jessica.

[¶7.] Jessica arrived home with her two daughters approximately one hour

later. Sonny showed Jessica the pictures on the cell phone. After becoming

physically ill, Jessica took her daughters to the Sanford Hospital emergency room to

be examined. Upon realizing the police would need to see the pictures, Jessica called

Sonny and asked him to bring the cell phone to the hospital. Jessica learned that

during an argument among Harry, Darlene, and Sonny, Sonny deleted at least one

picture from the cell phone. The other pictures were deleted by either Sonny or

Harry. Nevertheless, Jessica directed Sonny and Darlene to bring the cell phone to

the hospital. When Sonny arrived at the hospital, he gave the cell phone to Darlene

who gave it to Jessica. While attempting to recover the pictures, Jessica began

looking at the camcorder feature on the cell phone. She observed thumbnail images

on the camcorder screen similar to the illicit pictures she saw earlier. She did not

push “play” to view the videos.

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[¶8.] Meanwhile, a nurse notified Officers Ryan Flogstad and Nick Cook, who

were at Sanford Hospital investigating a separate matter, that a possible molestation

case had presented to the hospital and asked them to investigate. The officers met

with Jessica in a small interview room adjacent to the room where her daughters

were being examined. As Jessica handed the cell phone to Officer Flogstad, she told

him there were deleted pictures and videos of her daughters being molested on it.

She described the deleted pictures and the thumbnail images signifying the videos.

She told Officer Flogstad she believed Thunder placed the videos on the cell phone.

She did not indicate to Officer Flogstad that she had watched the videos or who

owned the cell phone. Officer Cook glimpsed the thumbnail images on the screen of

the cell phone as Jessica handed it to Officer Flogstad. Officer Cook could see that

the thumbnail images depicted child pornography. After receiving the cell phone

from Jessica, Officer Flogstad watched each of the four videos.

[¶9.] Police initiated an investigation of Thunder. After viewing the cell

phone videos, Officer Flogstad secured the bedroom Thunder had occupied at Harry

and Darlene’s home until a search warrant could be obtained. Officer Cook took

possession of the cell phone and turned it over to Detectives McManus and Kooistra.

Detective McManus viewed the videos and prepared an affidavit for a search

warrant. A search warrant was granted. A search of the bedroom produced bed

sheets, videotapes, and other evidence.

[¶10.] Thunder was indicted on June 5, 2008, for two counts of Rape in the

First Degree (Victim Less Than Thirteen Years) and four counts of Possession,

Manufacture, or Distribution of Child Pornography. Thunder pleaded not guilty to

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all charges on June 10, 2008. Thunder later filed a motion to suppress the videos

stored on the cell phone, alleging Officers Flogstad and Cook violated his right

against unreasonable searches and seizures when they viewed the videos without

consent, a warrant, or exigent circumstances. On September 15, 2008, the circuit

court denied that motion. On October 28, 2008, one count of Rape in the First Degree

(Victim Less Than Thirteen Years) was dismissed. The case proceeded to trial. On

November 3, 2008, a jury returned a verdict of guilty on all counts, and the circuit

court entered a judgment of conviction. Thunder appeals his conviction, alleging the

circuit court erred in denying his motion to suppress.

STANDARD OF REVIEW

[¶11.] Our standard of review of motions to suppress is well settled. “A motion

to suppress based on an alleged violation of a constitutionally protected right is a

question of law reviewed de novo.” State v. Labine, 2007 SD 48, ¶12, 733 NW2d 265,

268 (quoting State v. Sweedland, 2006 SD 77, ¶12, 721 NW2d 409, 412 (citing State

v. Chavez, 2003 SD 93, ¶13, 668 NW2d 89, 95)). The circuit court’s factual findings

are reviewed under the clearly erroneous standard of review. Id. “Once the facts

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

question of law reviewed de novo.” Id. ¶12, 733 NW2d at 269. This Court will not be

restricted by the circuit court’s legal rationale. State v. Christensen, 2003 SD 64, ¶7,

663 NW2d 691, 694 (citing State v. Lamont, 2001 SD 92, ¶21, 631 NW2d 603, 610).

DECISION

[¶12.] Thunder challenges Officer Flogstad’s warrantless viewing of the videos

stored on the cell phone he used under the Fourth Amendment to the United States

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Constitution and Article VI, Section 11, of the South Dakota Constitution. He

contends these provisions were implicated at the point Officer Flogstad pressed

“play” to view the videos stored on the cell phone. The Fourth Amendment to the

United States Constitution provides:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

U.S. Const. amend. IV. Similarly, Article VI, Section 11, of the South Dakota

Constitution provides:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures
shall not be violated, and no warrant shall issue but upon
probable cause supported by affidavit, particularly describing
the place to be searched and the person or thing to be seized.

S.D. Const. art. VI, § 11. Thunder has not asserted, and we have not found, a basis

to distinguish the protections afforded by the South Dakota Constitution from those

provided by the federal Constitution under the circumstances of this case. Our

analysis thus applies equally to both constitutional provisions. See State v. Deneui,

2009 SD 99, ¶12, 775 NW2d 221, 229.

[¶13.] Both provisions guarantee citizens protection from unreasonable

searches and seizures by government actors. Christensen, 2003 SD 64, ¶11, 663

NW2d at 694 (citing U.S. Const. amend. IV; S.D. Const. art. VI, § 11). Police

ordinarily must obtain a warrant based on probable cause and issued by a neutral

magistrate before searching or seizing an individual’s property. State v. DeLaRosa,

2003 SD 18, ¶7, 657 NW2d 683, 685 (citing Terry v. Ohio, 392 US 1, 20, 88 SCt 1868,

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1879, 20 LEd2d 889, 905 (1968)). If a warrantless search or seizure is conducted, it is

the State’s burden to show the entry into the protected area was justified.

Christensen, 2003 SD 64, ¶12, 663 NW2d at 695 (citing Vale v. Louisiana, 399 US 30,

34, 90 SCt 1969, 1972, 26 LEd2d 409 (1970); State v. Meyer, 1998 SD 122, ¶20, 587

NW2d 719, 723).

[¶14.] The Fourth Amendment guarantees no protection from private,

nongovernmental searches. United States v. Jacobsen, 466 US 109, 113-14, 104 SCt

1652, 1656, 80 LEd2d 85 (1984); State v. Madsen, 2009 SD 5, ¶11, 760 NW2d 370,

374. However, private individuals may be considered agents of the State when they

act on behalf of or cooperate with law enforcement officers. State v. Cundy, 86 SD

766, 771, 201 NW2d 236, 239 (1972). The Fourth Amendment does not apply to

private searches even if the search was unauthorized or wrongful. Jacobsen, 466 US

at 113-14, 104 SCt at 1656; Madsen, 2009 SD 5, ¶11, 760 NW2d at 374 (citing Cundy,

86 SD at 771, 201 NW2d at 239).

[¶15.] Officer Flogstad’s viewing of the videos on the cell phone Thunder used

is the first government action in this case. The Fourth Amendment is wholly

inapplicable to the search of the bedroom and the cell phone by Thunder’s family

members. Harry, Sonny, and Jessica were not acting as agents of the government or

with the participation or knowledge of any government official. See Jacobsen, 466

US at 113-14, 104 SCt at 1656; Cundy, 86 SD at 771, 201 NW2d at 239. Thunder

argues Officer Flogstad conducted an unreasonable search of the videos stored on the

cell phone he used in violation of his Fourth Amendment rights at the point Officer

Flogstad pressed “play” to view the videos stored on the cell phone. While viewing

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the videos stored on the cell phone was an action by a government official, it is not

clear it implicated the protections of the Fourth Amendment.

[¶16.] “An individual must have a reasonable expectation of privacy in the

place searched or the article seized before the Fourth Amendment will apply.”

Christensen, 2003 SD 64, ¶11, 663 NW2d at 694 (citing Katz v. United States, 389

US 347, 88 SCt 507, 19 LEd2d 576 (1967)). A two-part test determines whether an

individual has a reasonable expectation of privacy in the area searched. Cordell v.

Weber, 2003 SD 143, ¶12, 673 NW2d 49, 53 (citing State v. Lowther, 434 NW2d 747,

754 (SD 1989)). First, we consider whether the defendant exhibited an actual

subjective expectation of privacy in the area searched. Id. Second, we consider

whether society is prepared to recognize that expectation of privacy as reasonable.

Id. Whether a person has a legitimate expectation of privacy in the place to be

searched is determined on a “case-by-case basis, considering the facts of each

particular situation.” State v. Hess, 2004 SD 60, ¶17, 680 NW2d 314, 322 (citation

omitted).

[¶17.] The United States Supreme Court has made clear that whether an

individual is legitimately on the premises is “too broad a gauge for measurement of

Fourth Amendment rights.” Rakas v. Illinois, 439 US 128, 142, 99 SCt 421, 429, 58

LEd2d 387 (1978). Where an individual is legitimately on the premises, “the

protection of the [Fourth] Amendment depends not upon a property right in the

invaded place but upon whether the person who claims the protection of the [Fourth]

Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143,

99 SCt at 430 (citing Katz, 389 US at 353, 88 SCt at 512) (additional citations

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omitted). See Minnesota v. Carter, 525 US 83, 119 SCt 469, 142 LEd2d 373 (1998);

Minnesota v. Olson, 495 US 91, 110 SCt 1684, 109 LEd2d 85 (1990). Yet, the Court

has been “quite careful to note that ‘wrongful’ presence at the scene of a search would

not enable a defendant to object to the legality of the search” under the Fourth

Amendment. Rakas, 439 US at 141 n9, 99 SCt at 429 n9.

A burglar plying his trade in a summer cabin during the off
season may have a thoroughly justified subjective expectation of
privacy, but it is not one which the law recognizes as
“legitimate.” His presence . . . is “wrongful”; his expectation is
not “one that society is prepared to recognize as ‘reasonable.’”

Id. at 143 n12, 99 SCt at 430 n12 (citing Jones v. United States, 362 US 257, 267, 80

SCt 725, 734, 4 LEd2d 697 (1960); Katz, 389 US at 361, 88 SCt at 516 (Harlan, J.,

concurring)).

[¶18.] Thunder argues he had a reasonable expectation of privacy in the cell

phone because he kept it amongst his personal belongings in a locked bedroom.

Thunder cannot claim a reasonable expectation of privacy in the cell phone on this

basis. There is no indication Thunder sought or received permission from Darlene,

Sonny, or Jessica to use the cell phone. Further, Thunder left the cell phone in the

bedroom after Harry and Darlene ordered him to leave the home, and law

enforcement forcibly removed him from the bedroom on two occasions. On the second

occasion, Thunder had gained entry to the bedroom by breaking and crawling

through a basement window. Indeed, at the time Officer Flogstad viewed the videos

on the cell phone, Harry had activated the cell phone in Sonny’s name, transferred

Sonny’s cell phone number to it, and given it to Sonny.

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[¶19.] Thunder’s claim that he had a reasonable expectation of privacy in the

cell phone is defeated because his possession of the cell phone was wrongful.

Thunder, like the “burglar plying his trade in a summer cabin during the off season,”

may have had a subjective expectation of privacy in the cell phone, but it is not “one

which society is prepared to recognize as reasonable.” See id. Therefore, Officer

Flogstad’s viewing of the videos stored on the cell phone claimed by the family

members did not implicate the protections of the Fourth Amendment. The circuit

court did not err in denying Thunder’s motion to suppress.

[¶20.] Because we conclude Thunder did not have a reasonable expectation of

privacy in the cell phone, we need not address whether any reasonable expectation of

privacy Thunder might have claimed was frustrated by the private searches by his

family members.

[¶21.] Affirmed.

[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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