## Facts

- Early on November 21, 2012, Juan Rosales set fire to two vehicles owned by Amy Faehnrich and Toby Rolfe. The vehicles were parked about four feet from the owners’ garage.
- A fire marshal determined the vehicle fires began when a flammable liquid was ignited on the hoods and windshields, and the garage fire started because of the garage’s close proximity to the burning vehicles.
- Later that morning, officers located Rosales and his wife, impounded their van, and seized two cell phones.
- An investigator removed the phone batteries and recorded the phones’ serial numbers. The serial numbers were included in an affidavit supporting a later search warrant.
- Police obtained a warrant to search the phones, the van, and Rosales’s person. During the search of the van, officers found four lighters, a book of matches, a gas can, marijuana, and TFMPP (a Schedule I controlled substance in South Dakota).
- A jury convicted Rosales of reckless burning (for the garage), two counts of first-degree intentional damage to property (one for each vehicle), and drug possession offenses. A habitual offender information was also filed, and Rosales received an aggregate sentence of 30 years.
- On appeal, Rosales argued (1) he could not be convicted of first-degree intentional damage to property because his fire-setting conduct fell within arson or reckless burning and the statutes are mutually exclusive, and (2) evidence seized under the warrant should have been suppressed as fruit of an allegedly unlawful search of the cell phones to obtain serial numbers.

## Issues

1. Whether SDCL 22-34-1(2) (first-degree intentional damage to property “by any means not constituting arson”) permits convictions for intentionally damaging vehicles when the State’s theory is that the defendant damaged the vehicles by setting them on fire, conduct that may satisfy arson or reckless burning.
2. Whether evidence seized under a warrant must be suppressed when the warrant affidavit referenced cell-phone serial numbers obtained by allegedly unlawfully removing the phones’ batteries and recording the numbers, absent proof that the later search was obtained by use of that illegality.

## Decision

- The court reversed Rosales’s two convictions for first-degree intentional damage to property and remanded for a new trial on those counts.
- The court held that SDCL 22-34-1(2) does not apply if the defendant’s conduct constitutes arson; the statutory phrase “by any means not constituting arson” makes the arson statutes and the intentional damage statute mutually exclusive for the same conduct.
- Because arson requires intent to destroy (not merely intent to damage), and the jury was not required to decide whether Rosales intended to destroy the vehicles, the intentional damage convictions could not stand on this record.
- The court affirmed the denial of Rosales’s motion to quash the warrant and suppress evidence, concluding that even if the serial-number inspection were unlawful, Rosales did not show that the warrant evidence was obtained by use of, or as a result of, that act.
- The court otherwise affirmed Rosales’s remaining convictions and judgment.

## Legal Principles

- Under SDCL 22-34-1(2), first-degree intentional damage to property applies only when the damage is inflicted “by any means not constituting arson”; if the same conduct satisfies the elements of arson, the intentional damage statute is not available for that conduct.
- Where property is damaged by fire, the factfinder must determine whether the defendant acted with intent to destroy (arson) or only intent to damage (intentional damage to property); that intent question cannot be bypassed by charging intentional damage when arson may fit.
- Suppression under a “fruit of the poisonous tree” theory requires the defendant to prove a factual connection between the challenged police conduct and the evidence later seized—showing the evidence was obtained by use of the alleged illegality rather than from independent grounds.
- A warrant is not invalid, and its fruits are not suppressed, merely because an earlier act is claimed to be unlawful; the defendant must show the later search and seizure resulted from that act.

## Conclusion

State v. Rosales held that South Dakota’s first-degree intentional damage to property statute, which applies only to damage caused “by any means not constituting arson,” cannot support convictions for vehicle damage caused by fire unless the jury is required to resolve whether the defendant intended to destroy the property (bringing the conduct within arson). The court therefore reversed and remanded the two intentional damage convictions for a new trial, but affirmed the denial of suppression because Rosales did not prove that any alleged illegality in recording cell-phone serial numbers caused or produced the warrant-based seizure of evidence from the van.


State v. Rosales, 860 N.W.2d 251 (2015)