State v. Christensen, No. 22442

• Citation: 663 N.W.2d 691,2003 SD 64
• Decision Date: 28 May 2003
• Docket Number: No. 22442, No. 22443.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David CHRISTENSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

663 N.W.2d 691

2003 SD 64

STATE of South Dakota, Plaintiff and Appellee, v. David CHRISTENSEN, Defendant and Appellant.

Nos. 22442, 22443.

Supreme Court of South Dakota.

Argued March 26, 2003.

Decided May 28, 2003.

Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Phillip O. Peterson, Clay County Public Defender, Beresford, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] David Christensen (Christensen) was convicted of possession of marijuana and two counts of possession of child pornography. We affirm his conviction.

FACTS AND PROCEDURE

[¶ 2.] On June 29, 2001, a day after Christensen was detained at the Human Services Center (HSC) in Yankton, South Dakota for a psychological evaluation, his neighbor in Irene, South Dakota was granted a protection order against him.¹ Christensen was served notice of this order while at HSC. As part of that order, Christensen was to surrender all of his firearms to the Clay County Sheriff. The protection order also gave the Sheriff the power to take necessary steps to obtain the firearms if they were not surrendered. After waiting approximately 48 hours for compliance by Christensen, Clay County Sheriff Passick, Irene Police Chief Nelson and Deputy Sheriff Howe went to Christensen's residence in Irene to obtain the guns.

[¶ 3.] Upon entering the unlocked residence, the officers saw marijuana, marijuana paraphernalia and several weapons, including loaded high-powered assault weapons. The law enforcement officers took the guns and went to Vermillion to apply for a search warrant for various drugs and paraphernalia. The circuit court judge granted the warrant which gave the officers authority to search Christensen's residence for drugs, drug paraphernalia, illegal weapons, and items which showed an intent to distribute drugs.

[¶ 4.] While the law enforcement officers were executing the warrant at Christensen's residence, they came across a trunk in his bedroom, which they opened. Inside the trunk were various videotapes, some with sexually suggestive titles² and photographs that depicted nude female children. During the course of the search, over a pound of marijuana and homemade "surveillance" videos³ of young female children were also found. Additionally, magazines for small children such as "Nickelodeon" and "Jack and Jill" were discovered, although no children lived in the residence.

[¶ 5.] A separate search warrant was then granted by the circuit court that authorized the officers to view the videotapes and magazines. Most of the contents of these videos and magazines were admitted at trial, over Christensen's objections. Ultimately, Christensen was charged with 77 counts of possession of child pornography and one possession of marijuana. After a jury trial, he was convicted on two counts of possession of child pornography and for the possession of marijuana, from one to ten pounds. Christensen received a five-year prison sentence for the possession of marijuana, and one year each for the convictions of possession of child pornography, for violation of SDCL 22-22-23.1.⁴ The convictions of child pornography are to run concurrently to each other, but consecutively with the five-year possession of marijuana conviction.

[¶ 6.] Christensen raises the following issues for appeal:

1. Whether exigent circumstances were present to justify the officers' entry without a search warrant into Christensen's home in order to obtain the weapons.

2. Whether the trial court should have suppressed the videos and magazines found in the search of Christensen's residence.

3. Whether the "surveillance" videos were properly admitted at trial as "other acts evidence" to show Christensen's intent in possessing the alleged child pornography.

STANDARD OF REVIEW

[¶ 7.] Factual findings by the trial court are reviewed under the clear error standard of review. State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610 (citing State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 659) (citations omitted). However, "in reviewing decisions on motions to suppress for asserted constitutional violations our standard of review is de novo." Id. (quoting Morato, 2000 SD 149, ¶ 10,619 N.W.2d at 659) (additional citations omitted). This Court will not be restricted by the trial court's "legal rationale for upholding the entry." Lamont, 2001 SD 92, ¶ 21,631 N.W.2d at 610.

[¶ 8.] In admitting evidence as other acts evidence, the trial court will not be reversed absent an abuse of discretion. Novak v. McEldowney, 2002 SD 162, ¶ 7, 655 N.W.2d 909, 912 (citations omitted). Furthermore, the evidentiary ruling must be shown to be prejudicial error. Id.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether exigent circumstances were present to justify the officers' entry without a search warrant into Christensen's home in order to obtain the weapons.

[¶ 10.] Christensen argues that his Fourth Amendment rights were violated when the officers entered his residence without a search warrant to obtain the guns. Further, he asserts that the officers knew that he was being held at HSC and was aware that he had been trying to contact a friend to lock his house and give his guns to the officers. The State contends that the officers' actions were justified because of "exigent" circumstances, and that the protection order gave them the authority to take whatever steps deemed necessary to obtain the guns.

[¶ 11.] The Fourth Amendment of the Constitution guarantees citizens the protection from the unlawful searches and seizures by government actors. U.S. Const. amend. IV, SD Const., art. VI, § 11. An individual must have a reasonable expectation of privacy in the place searched or the article seized before the Fourth Amendment will apply. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Normally, police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone's property. See State v. DeLaRosa, 2003 SD 18, ¶ 7, 657 N.W.2d 683, 685

(citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)).⁵

[¶ 12.] It is the State's burden to show that a warrantless entry into a protected area was justified. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); State v. Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d 719, 723 (citations omitted). If exigent circumstances are present, then the police may be justified in entering a person's residence without a warrant. Lamont, 2001 SD 92, ¶ 22,631 N.W.2d at 610 (stating that "[t]he exigency exception exists because some situations dictate immediate police response rather than delay to obtain a warrant from a judge"). "Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant." State v. Wilson, 2000 SD 133, ¶ 19, 618 N.W.2d 513, 520 (citing State v. Buchholz, 1999 SD 110, ¶ 18, 598 N.W.2d 899, 903 (citing State v. Hanson, 1999 SD 9, ¶ 35, 588 N.W.2d 885, 892)).

[¶ 13.] In determining whether exigent circumstances exist, "it is important to point out ... that safety factors are a valid consideration." State v. Boll, 2002 SD 114, ¶ 48, 651 N.W.2d 710, 722-23 (Konenkamp, J, concurring specially) (citing Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978)). Moreover, in United States v. Antwine, 873 F.2d 1144 (8th Cir.Ct.App.1989), the Eighth Circuit Court of Appeals held that a warrantless search for a gun inside defendant's house was not unconstitutional. In that case, the officers went into defendant's house, after he had been arrested in his yard, to retrieve a gun that defendant had earlier displayed. 873 F.2d at 1146. The officers were concerned for the safety of the two children who were inside the house. That court found that "the clear implication of [New York v. Quarles] is that a warrantless seizure of a weapon may be considered `reasonable' within the meaning of the Fourth Amendment when justified by an officer's legitimate concern for someone's safety." Id. at 1147 (citing Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)).

[¶ 14.] In this case, under this particular set of facts, we find that the officers' entry into Christensen's home to retrieve the weapons when the protection order provided for such action, and because of the exigency of the situation, did not violate Christensen's Fourth Amendment rights.⁶ [¶ 15.] No one else was in his home to surrender the guns to law enforcement. Moreover, the house was unlocked and unwary children could have entered to take possession of loaded firearms. The fact that guns were in that house was clearly known to the local residents which presented the potential of their theft and improper subsequent use.

[¶ 16.] Christensen, who was mentally unstable to the point of being placed at HSC at the time that the officers entered his home, had made threats to neighbors and other people around the town of Irene. He also had admitted to law enforcement officers that he often was armed and wore a bullet proof vest. Because the officers knew that Christensen had several firearms in his residence, and that he was going to be released from HSC at any time, their belief that the weapons posed a serious threat to the safety of the public was reasonable. See Lamont, 2001 SD 92, ¶ 21,

631 N.W.2d at 610 (determining that in assessing whether the Fourth Amendment has been violated, the officers' actions must be analyzed to determine if their actions were objectively reasonable). Further, this threat was apparent by the express terms of the protection order. The order gave Christensen notice that he must hand over all of his weapons to law enforcement, or otherwise, law enforcement would take whatever steps necessary to make sure that the...