State v. Helland
| Citation | 2005 SD 121,707 N.W.2d 262 |
| Decision Date | 07 December 2005 |
| Docket Number | No. 23705.,23705. |
| Parties | STATE of South Dakota, Plaintiff and Appellant, v. Charles Edwin HELLAND, Defendant and Appellee. |
| Court | Supreme Court of South Dakota |
David R. Nelson, Minnehaha County State's Attorney, Hope Okerlund Matchan, Chief Deputy State's Attorney, Minnehaha County, Sioux Falls, South Dakota, Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
Michael J. Butler, Butler Law Office, P.C., Sioux Falls, South Dakota, Attorney for defendant and appellee.
[¶ 1.] Charles Edwin Helland (Helland) filed a motion in circuit court to suppress evidence obtained in a search of his computer and office at his employer's place of business. The circuit court judge suppressed the evidence, holding the affidavit was misleading because of the omission of material information. We reverse.
[¶ 2.] On June 11, 2004, Kevin Elsing, vice-president of Elbo Computing Resources and a computer technician by trade, was called to service Helland's computer at his employer's place of business. Elsing noticed Helland minimized the computer screen when Elsing entered the office. When Elsing began working on the computer, he was able to see that the screen Helland had minimized was a web page dealing with people's first experience with incest. Elsing loaded antivirus1 and antispyware2 software on Helland's computer and concluded the service call.
[¶ 3.] Elsing's next contact with Helland occurred on November 22, 2004, after receiving an email requesting service on Helland's computer. The email stated Helland's computer had lost access to the office network, was not printing properly and was not accessing Microsoft Word. Elsing arrived at Helland's office the morning of November 23, 2004, and began his work by updating the previously installed antivirus and antispyware software and removing spyware from the system. Elsing removed several spyware files from the system to determine if these files were the cause of the software errors. Elsing then began a scan of the system using a web-based scan engine called housecall.trendmicro.com. The scan was taking a long time to complete, and to speed up the process Elsing decided to delete the contents of the "temporary internet files" folders on Helland's computer. Elsing noticed that the deletion was taking a long time and the system did not seem to be deleting the temporary internet files as requested. Elsing then decided to look into the "temporary internet files" folders to see if files were being deleted.
[¶ 4.] Upon opening the "temporary internet files" folders, Elsing found dozens of suggestive and suspicious graphic file names such as "hot boys" and "teen boys." Elsing opened some of these temporary internet files and found images of young nude males. Elsing noted that one image depicted two boys approximately eight to ten years of age, naked, sitting on the shore of a lake or stream, side by side, hands behind them, with their legs spread. Shocked and in disbelief about what he was seeing, Elsing began opening other files that contained similarly disturbing images. Fearing he was deleting the temporary internet files, Elsing stopped the deletion process and created a new folder called "older" and copied the index.dat3 file and a few of the temporary internet files into this newly created folder. Elsing left without finishing the service call, but planned to return later that afternoon.
[¶ 5.] Alarmed by what he saw, Elsing returned to Elbo Computing to discuss the details with his business partner. Elsing felt his discoveries might have triggered the provisions of SDCL 22-22-24.18,4 the mandatory reporter statute that requires computer repair technicians to report suspected violations of child pornography laws. Ultimately, Elsing decided that the mandatory reporter provisions in SDCL 22-22-24.18 required him to contact the police given his discovery of images of child pornography in the temporary internet files on Helland's computer.
[¶ 6.] Later that afternoon, Elsing contacted Marvin D. Thorstenson, a detective with the Minnehaha County Sheriff's Office assigned to the Internet Crimes Against Children Task Force. Elsing told Detective Thorstenson about the images of child pornography contained in the temporary internet files and the incest web page incident. Elsing also told Detective Thorstenson that Helland had previously told Elsing that he was a Boy Scout Troop Leader and that he had an older fax machine at the Boy Scout Troop building that was great for printing off still images. Finally, Elsing told Detective Thorstenson that Helland had several floppy disks near the computer work station, a disk drive, and a compact disk burner attached to the computer that would allow files to be transferred from the computer to compact disks. Elsing then returned to Helland's office and finished the service call by reloading printer drivers.
[¶ 7.] Detective Thorstenson applied for a search warrant based on this information. In his affidavit, Detective Thorstenson provided a large amount of background information concerning how the internet is used to facilitate crimes against children. The affidavit included a section on collateral evidence that law enforcement officers expect to find during a search of the computer of an individual suspected of possession of child pornography, a section on how a computer serves as a repository of evidence in such cases, another section on the need to remove the computer from the scene in order to search it with sophisticated software programs, and finally a section on the need to seize programs and peripherals to assist in the evaluation of the data contained on the computer. In all, the background material comprised eleven paragraphs of the affidavit, almost three full pages of the five and one-half page document.
[¶ 8.] The remaining pages of the affidavit included a detailed account of the information provided to Detective Thorstenson by Elsing, organized into seventeen enumerated paragraphs. In paragraph nine (9), Detective Thorstenson identified the files being worked on by Elsing as "temporary internet files." The same descriptor was used in paragraphs ten (10), and twelve (12). However, in paragraphs eleven (11) and thirteen (13), Detective Thorstenson refers to "some files" and "these files" when discussing the images observed in the temporary internet files opened by Elsing.
[¶ 9.] Based on the affidavit, a search warrant was issued by a circuit court judge for evidence of the commission of the crime of possession and distribution of child pornography including contraband, the fruits of crime, or things otherwise criminally possessed, and things designed or intended for use in, or which were used as a means of, committing the offense of possession and distribution of child pornography. The scope of the search was limited to Helland's office at his employer's place of business for "[a]ll computer systems to include programs used to create the text or capture & modify images, all programs found near the computer system, data files, removable media such as data tape, magneto optical disks or similar storage, passwords and access codes written on pieces of paper near the computer." The search revealed "a tremendous amount of child pornography" in two different desk drawers in Helland's office. Based on the evidence seized, Helland was indicted on twenty counts of Possession of Child Pornography in violation of SDCL 22-22-24.2(3).5 None of the indictments were for the images originally found by Elsing in the temporary internet file folders.
[¶ 10.] Helland filed a motion to suppress the evidence and a hearing was held on the matter. The suppression court granted Helland's motion, holding that the affidavit in support of the search warrant failed in two respects. First, the suppression court found that the affidavit failed to explain the nature of temporary internet files. Second, the court held that the affidavit failed to set forth the fact that the files observed by Elsing were all temporary internet files. The suppression court held that the affidavit should have specified that temporary internet files may not be user created, but rather may result from actions taken by the computer without the user's knowledge. In addition, the suppression court held the affidavit should have stated that the evidence discovered by Elsing consisted exclusively of temporary internet files. The suppression court found Detective Thorstenson recklessly misled the issuing court by omitting the background material on temporary internet files and by failing to state that all files viewed by Elsing were temporary internet files. The suppression court held that once the affidavit was supplemented with the omitted material, there was insufficient probable cause for issuance of the search warrant. As a consequence, the suppression court ordered all evidence seized from Helland's office suppressed.
[¶ 11.] The State appeals from the order suppressing the evidence obtained from Helland's computer and desk drawer raising three issues:
1. Whether the suppression court erred when it held that the issuing court had insufficient probable cause to issue the search warrant.
2. Whether Detective Thorstenson recklessly made false or misleading statements in his affidavit, or recklessly withheld material information from the affidavit, so as to invalidate the search warrant.
3. Whether the good faith exception to the exclusionary rule applies when officers reasonably rely upon a search warrant that is later deemed invalid as a result of insufficient probable cause.
[¶ 12.] Our standard of review for a challenge to the sufficiency of the evidence supporting a search warrant requires us to look "at the...
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...every reasonable inference possible in support of the issuing court's determination of probable cause to support the warrant.'" State v. Helland, 2005 SD 121, ¶ 17, 707 N.W.2d 262, 269 (citation [¶ 58.] Normally, we only examine the four corners of an affidavit to review whether an affidavi......
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State v. Dubois, 23976.
...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 [O]ur inquiry is limited to determining whether the information provided to the issuing court i......
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