State v. Dubois, 23976.

Decision Date27 February 2008
Docket NumberNo. 23976.,23976.
Citation2008 SD 15,746 N.W.2d 197
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Chad Thomas DUBOIS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

James A. Eirinberg, Sioux Falls, South Dakota, Attorney for defendant and appellant.


[¶ 1.] A jury found Chad Dubois guilty of five counts of possession of child pornography. Dubois appeals and we affirm.


[¶ 2.] Dubois met Derek St. John, an adult, on an internet dating site. St. John contacted Dubois via his 1-800 telephone number and the two began to date. During this relationship, St. John had access to Dubois' computers. While on Dubois' desktop computer, St. John observed a couple of pornographic pictures depicting children approximately "six to eight years old."

[¶ 3.] Apparently disturbed by the pictures, St. John reported the pictures to his probation officer, Kathy Christenson.1 Christenson put St. John in contact with Shannon Riter, a special agent for the South Dakota Division of Criminal Investigation (DCI), who investigated the allegations and obtained a warrant to search Dubois' apartment. Upon executing the search warrant, the authorities obtained possession of two computers, a laptop and a desktop.

[¶ 4.] The State Forensic Laboratory (Lab) analyzed the computers' hard drives for pornographic images of children. A forensic computer analyst for the Lab discovered sixteen images that he believed were of persons below the age of eighteen on both computers' hard drives. One of the individuals depicted in a few of the pictures was later identified as A.J., a male minor who met Dubois in an internet chat room.

[¶ 5.] A.J., who was twelve or thirteen at the time the pictures were taken, testified that Dubois contacted him in the chat room, and they communicated about various topics including sex. A.J. also testified that when he told Dubois his age, Dubois was "pretty cool about it." After Dubois provided A.J. with his 1-800 telephone number, the two had contact by telephone. Many of the communications between Dubois and A.J. were sexually charged, covering both anal and oral sex.

[¶ 6.] During one of these conversations, Dubois elicited pictures from A.J. stating: "I will show you mine, if you show me yours." Dubois later sent pictures of himself naked to A.J. and succeeded in convincing A.J. to reciprocate by sending naked pictures of himself to Dubois. A.J. testified that Dubois requested pictures that displayed A.J.'s penis.

[¶ 7.] At trial, the State presented the jury with numerous pictures depicting alleged child pornography as well as other evidence which tended to prove Dubois had solicited the images. After viewing the evidence, the jury found Dubois guilty of five counts of possession of child pornography under SDCL 22-24A-3.2 The court sentenced Dubois to thirty years in the South Dakota State Penitentiary.

[¶ 8.] Dubois appeals raising the following issues:

1. Whether the trial court erred when it denied Dubois' motion to suppress evidence gained from the search of his home.

2. Whether the trial court erred when it permitted the State to present a chat room discussion engaged in by Dubois.

3. Whether there was sufficient evidence to convict Dubois of possessing child pornography.

4. Whether the sentence constitutes cruel and unusual punishment.

1. Denial of Dubois' Motion to Suppress

[¶ 9.] Dubois contends there was no probable cause for the issuance of the search warrant; therefore, the executed search violated the Fourth Amendment of the United States Constitution and Article VI, section 11 of the South Dakota Constitution. We disagree.

[¶ 10.] When considering the sufficiency of evidence supporting a search warrant we are required to "look `at the totality of the circumstances to decide if there was at least a "substantial basis" for the issuing judge's finding of probable cause.'" State v. Helland, 2005 SD 121, ¶ 12, 707 N.W.2d 262, 268 (citations omitted).

[O]ur inquiry is limited to determining whether the information provided to the issuing court in the warrant application was sufficient for the judge to make a "`common sense' determination that there was a `fair probability' that the evidence would be found on the person or at the place to be searched." On review, we are limited to an examination of the facts as contained within the four corners of the affidavit. Furthermore, we review the issuing court's probable cause determination independently of any conclusion reached by the judge in the suppression hearing.

Id. (citations omitted).

[¶ 11.] Probable cause cannot be determined by some "formulaic solution." Id. ¶ 15. Probable cause "lies somewhere between mere suspicion and the trial standard of beyond a reasonable doubt." Id. (citations omitted). We are required to assess the "probabilities in a particular context" and balance "the government's need to enforce the law with the citizen's right to privacy." Id. (citations omitted).

We have previously articulated the standard for determining the existence of probable cause sufficient to support the issuance of a search warrant:

There need not be a prima facie showing of legal evidence of a suspected act. The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity. In addition to the reasonable ground to believe that some violation of the law exists, probable cause for a search warrant necessarily implies that there is a violation in respect to some property located on some premises, or on some person, which can be identified expressly or by reasonable inference from the information given in the affidavit so as to be capable of being particularly described in the warrant.

Id. ¶ 16 (quoting State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978)) (other citations omitted). Furthermore, we are "not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing court's legal basis for granting the warrant is examined with `great deference.'" Id. ¶ 17 (quoting State v. Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983))). "[W]e will draw every reasonable inference possible in support of the issuing court's determination of probable cause to support the warrant." Id. (citing State v. Habbena, 372 N.W.2d 450, 456 (S.D.1985) (citing State v. Wellner, 318 N.W.2d 324, 327 (S.D.1982))).

[¶ 12.] Dubois contends the warrant was invalid as a result of a flawed affidavit, on the basis of the following assertions: 1) it failed to inform the magistrate the informant had a criminal past (including crimes of dishonesty), and was currently on probation; and 2) the officer did not corroborate the information provided by the informant.

[¶ 13.] The affidavit did omit the informant's criminal record; however, this omission does not vitiate probable cause. See State v. Corum, 663 N.W.2d 151, 160 (N.D.2003) (holding that the omission of the criminal record and the leniency provided to the informant was not sufficient to negate probable cause for the warrant). "An affidavit that is purported to contain recklessly and intentionally misleading information or material omissions is reviewed under the two-part analysis in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." Helland, 2005 SD 121, 1132, 707 N.W.2d at 273. "First, [Dubois] must show by a preponderance of the evidence that a ... statement knowingly and intentionally, or with reckless disregard for the truth was [omitted] ... by the affiant in the warrant affidavit." Id. Second, Dubois must establish the omitted fact would have defeated probable cause. Id. Applying the Franks test, Dubois' arguments fail.

[¶ 14.] The affidavit clearly stated that Agent Riter was "contacted by South Dakota probation officer Kathy Christenson" who informed Agent Riter that Christenson's "client, Derek St. John, provided criminal information regarding a male subject." The "common sense" inference drawn from these disclosures is that St. John was on probation and surely had a criminal record. Habbena, 372 N.W.2d at 456 (stating "[w]e will not read the warrant affidavit in a hypertechnical manner; rather, we read each affidavit whole and interpret each in a common sense and realistic manner") (citations omitted).

[¶ 15.] Moreover, although the specifics of St. John's criminal record may have cast some doubt on his credibility, the omitted record does not vitiate probable cause demonstrated in the affidavit. The affidavit noted that the identity of the informant was known and that the informant furnished detailed eye-witness accounts of criminality. See State v. Sweedland, 2006 SD 77, ¶ 21, 721 N.W.2d 409, 414 (stating "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first hand, entitles the informant's tip to greater weight than might otherwise be the case"); see also State v. Griggs, 306 Mont. 366, 34 P.3d 101, 104 (2001) (stating when an 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 enforcement corroboration"); see also State v. Thomas, 267 Neb. 339, 673 N.W.2d 897, 908-09 (2004) (stating informants who identify themselves are considered more reliable); State v. Lammers, 267 Neb. 679, 676 N.W.2d 716, 725 (2004) (stating "an untested citizen informant who has personally observed the commission of a crime is presumptively reliable").

[¶ 16.] Additionally, contrary to Dubois' assertion, St. John's statements were corroborated. St. John named two individuals who at one time lived with...

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