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State v. Thunder

January 6, 2010

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.

The opinion of the court was delivered by: Severson, Justice

ARGUED NOVEMBER 17, 2009

[¶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 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.*fn1 At some point, Thunder began using the cell phone as an alarm clock. The cell phone also had the ability to 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.

[¶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.

[ΒΆ10.] 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 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 ...


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