A Sioux Falls man convicted on child pornography charges has made an appeal for a new trial.
The case of Michael O’Neal was heard in front of the state Supreme Court Wednesday.
At trial, O’Neal was convicted on all 15 counts and sentenced to what amounts to four years in prison. O’Neal appealed, arguing police didn’t follow proper procedures to get a warrant for his phone. That phone was crucial in allowing investigators to tie O’Neal to child pornography files.
While considered as an “inevitable discovery” by prosecution, Minnehaha County deputy public defender Katie Dunn, representing O’Neal, pushed for a retrial.
“In order for the attenuation doctrine to apply, the first thing that needs to happen is an intervening circumstance," Dunn said. "So, when the court ruled attenuation was the justification for the search in this matter, there was no actual intervening circumstance. The court's decision would actually indicate that based on the three factors of attenuation, there in fact was not an intervening circumstance.”
The attenuation doctrine is a rule that allows challenged evidence to be used in court if the connection to said evidence and alleged unconstitutional conduct is distant enough. Dunn said the use of the phone’s data should be viewed as a continuing issue.
"The seizure of the phone is an ongoing violation," Dunn argues. "If they don’t have the phone, they can’t execute a search warrant on an item they don’t have. Law enforcement went with purpose to retrieve that phone. They went to conduct an investigation; they did not give Mr. O’Neal the chance to consent. He was told ‘we’re seizing this phone; we need the passcode.’”
That argument is rejected by the state, represented by Erin Handke. She said a tip from O’Neal’s partner, who claims to have seen criminal images on the phone firsthand, creates probable cause.
“Just off the fiancé’s information she provided alone was enough probable cause for law enforcement to go take that phone," Handke said. "Whether or not they applied for a search warrant that day or inevitable discovery – there was enough probable cause just based off her information. The fiancé told law enforcement ‘I found this on my fiancé’s phone. It’s a gold iPhone with a black and white case and a crack in the screen.’ That information was obviously corroborated once the phone was seized.”
A decision is expected to be returned in the coming weeks.