Considered On Briefs January 12, 2015.
As Corrected May 12, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE JANINE KERN.
MARTY J. JACKLEY, Attorney General; PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
PAULA PEDERSON, Rapid City, South Dakota, Attorney for defendant and appellant.
ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON and WILBUR, Justices, and KONENKAMP, Retired Justice, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, and being the trial judge in this case, did not participate.
[¶1] Juan Rosales appeals his convictions on one count of reckless burning, two counts of intentional damage to property, one count of possession of a controlled substance, and one count of possession of marijuana. Rosales contends that the circuit court erred in failing to dismiss the intentional damage charges and in failing to find a search invalid. We reverse and remand for a new trial on the intentional damage charges. We affirm on the illegal search issue.
Facts and Procedural History
[¶2] In the early morning hours of November 21, 2012, Juan Rosales set fire to two vehicles owned by Amy Faehnrich and Toby Rolfe. The fire spread to their garage, which was located approximately four feet from the vehicles. The fire marshal's investigation indicated that the vehicle fires were started by the ignition of a flammable liquid on their hoods and windshields. The garage fire started because of its close proximity to the vehicles. Law enforcement officers were summoned. They interviewed several witnesses and, based on their investigation, began searching for Rosales.
[¶3] Officers apprehended Rosales and his wife, Jennifer Reed, later in the morning. The officers impounded the couple's vehicle and seized two cell phones. Neither Rosales nor the State has indicated whether the phones were taken directly from Rosales and Reed at the time of their arrest or from the van before it was towed. But an investigator with the Pennington County Sheriff's Office removed the batteries from the phones to record the phones' serial numbers. The investigator used the serial numbers to describe the phones in an affidavit for a warrant to search the contents of the phones, the van, and Rosales's person. A subsequent search of the van yielded four lighters, a book of matches, a gas can, marijuana, and trifluoromethylphenylpiperazine (TFMPP)--a form of " ecstasy" --a Schedule I controlled substance in South Dakota.
[¶4] Rosales was indicted on five counts: (1) reckless burning in violation of SDCL 22-33-9.3 (the garage), (2) intentional damage to property in the first degree in violation of SDCL 22-34-1(2) ...