STATE v. NELSON

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STATE v. NELSON

2015 OK CR 10

Case Number: S-2014-924

Decided: 09/18/2015

STATE OF OKLAHOMA, Appellant, v. NATHAN CHARLES NELSON, Appellee.

Cite as: 2015 OK CR 10 , __ __

OPINION

HUDSON, JUDGE:

¶1 Appellant, the State of Oklahoma, charged Appellee Nathan Charles Nelson

in Tulsa County District Court, Case No. CM-2014-1815, with Obstructing an

Officer (Count 1), in violation of

21 O.S.2011, § 540; Resisting an Officer

(Count 2), in violation of 21 O.S.2011, § 268; Failure to Carry

Insurance/Security Verification Form (Count 3), in violation of 47 O.S.Supp.2013, § 7-606; and Failure to Signal

(Count 4), in violation of 47 O.S.2011, § 11-604. Appellee filed a

Motion to Quash Illegal Arrest and Detention on September 23, 2014. A

hearing on Appellee's motion was held on October 1, 2014, and October 22, 2014.

At the conclusion of the hearing, Special Judge Bill Hiddle granted Appellee's

motion and suppressed all evidence resulting from the traffic stop. Appellant,

the State of Oklahoma, now appeals, raising the following issues:

I. THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS NO REASONABLE

SUSPICION TO STOP THE VEHICLE.

II. THE TRIAL COURT ERRED WHEN IT EXTENDED THE LIMITED COMMON LAW RIGHT TO

RESIST AN ILLEGAL ARREST TO ALLOW MOTORISTS TO WALK AWAY FROM A TRAFFIC STOP

WHEN THE ORIGINAL BASIS FOR THE STOP WAS LATER RULED TO BE INVALID.

III. SINCE THE LIMITED RIGHT TO RESIST AN ILLEGAL ARREST IS NOT A

CONSTITUTIONAL RIGHT, THE TRIAL COURT ERRED BY APPLYING THE EXCLUSIONARY REMEDY

TO THE RESISTING ARREST CHARGE.

IV. APPELLEE'S DECISIONS TO OBSTRUCT THE TRAFFIC STOP AND THEN RESIST ARREST

FOR OBSTRUCTION ARE SEPARATE CRIMINAL ACTS THAT DO NOT CONSTITUTE FRUIT OF THE

POISONOUS TREE OF THE STOP AND THEREFORE THE EXCLUSIONARY RULE DOES NOT APPLY TO

THE CHARGES OF OBSTRUCTION AND RESISTING ARREST.

V. THE COURT ERRED WHEN IT PLACED THE ONUS ON THE STATE TO REMEDY THE

CONSEQUENCES OF APPELLEE'S FAILURE TO FILE A MOTION THAT COMPLIED WITH OKLAHOMA

LAW AFTER THE TRIAL COURT DETERMINED THAT APPELLEE'S MOTION VIOLATED 12 O.S.

RULE 4.

¶2 We exercise jurisdiction pursuant to

22 O.S.2011, § 1053(5). After thorough

consideration of the entire record before us on appeal, including the original

record, transcripts, and briefs of the parties, we REVERSE the district

court's order in part for reasons discussed below.

BACKGROUND

¶3 The October 1, 2014 hearing on Appellee's motion to quash was very brief

as Special Judge Hiddle essentially terminated the hearing shortly after Officer

Turnbough took the stand. The State presented one witness, Officer Tyler

Turnbough. Officer Turnbough conducted the traffic stop at issue herein on March

19, 2014, in Tulsa, Oklahoma. The testimony relating to the traffic stop was as

follows:

Q. [By Prosecutor Keller] Why did you pull this car over?

A. [Turnbough] We observed the driver fail to signal his intentions as he was

turning left into a parking lot.

Q. Okay. And at that point what happened next?

A. We conducted a traffic stop of the vehicle. The vehicle parked. The two

occupants exited the vehicle and we made contact with the driver and the

passenger.

Q. Do you see the driver in the courtroom today?

A. Yes.

Q. Would you please tell the Court where he's seated and what he's

wearing?

A. He's in the gallery wearing a cream-colored polo.

MR. KELLER: May the record reflect the witness has identified the defendant?

THE COURT: The record will so reflect.

Q. (BY MR. KELLER) What happened next?

THE COURT: Do you care what happened next?

MR. HENSON [Defense Counsel]: I really don't care what happened after that,

Your Honor.

THE COURT: I assume after that you arrested, or may I -

MR. HENSON: Yep. By all means, Your Honor, please.

THE COURT: That you found that the driver didn't have insurance and in one

way or another you cited him for obstruction and resisting. Is that right?

THE WITNESS: Correct.

THE COURT: And took him to jail?

THE WITNESS: Correct.

THE COURT: All right. Anything else?

MR. KELLER: Umm, based on that . . .

THE COURT: You got all--you got the rest of the day if you to [sic] want [to]

take it, Mr. Keller. I'm not rushing you. I just--I have an inclining of where

Mr. Henson is going, so . . .

¶4 Thereafter, the prosecutor essentially made only two final inquiries of

Officer Turnbough before passing him as a witness. The prosecutor questioned

Officer Turnbough regarding "whether or not defendant could turn into this

parking lot with reasonable safety", to which the officer replied, "[y]es." The

prosecutor also inquired "[w]as there any traffic on that road", to which the

Officer Turnbough replied, "[o]nly his vehicle and us."

¶5 The remaining events which form the basis for Appellee's arrest and

misdemeanor charges can be gleaned from Officer Turnbough's probable cause

affidavit. Following the stop, Appellee along with another occupant exited the

vehicle. Appellee, upon request, was unable to provide proof of valid insurance.

While another officer was in the process of citing Appellee for these traffic

infractions, Appellee attempted to walk away from the traffic stop. Officer

Turnbough ordered Appellee to stop, but Appellee continued to walk away from the

scene. Officer Turnbough then positioned himself in Appellee's direct path and

ordered Appellee to return to his car. Appellee replied, "I can go wherever I

want, and you can't stop me." As a result, Officer Turnbough physically

restrained Appellee, having to push Appellee back toward the site of the stop.

During this struggle, Appellee turned around to face Officer Turnbough.

Turnbough directed Appellee to turn back around and put his hands behind his

back. While Appellee initially complied, he immediately pulled away as Officer

Turnbough was attempting to handcuff him. Another officer then stepped in to

help facilitate the arrest. Appellee's attempt to avoid being restrained

included pulling his hands away and attempting to lie on his hands.

¶6 During the brief hearing on October 1, 2014, Special Judge Hiddle made

reference to a case he clearly found to be dispositive in the matter. While

defense counsel apparently was aware of "the case", the State was not. The State

thus requested an opportunity to review and possibly respond to this case before

the trial court ruled on Appellee's motion. The trial court granted the State's

request and the hearing was concluded. It is clear from the October 22, 2014

hearing transcript that Johnson v. State ,

2013 OK CR 12 , 308 P.3d 1053 was "the case" the trial court was

referencing.

¶7 The State filed its Response to Defendant's Motion to Quash Illegal

Arrest and Detention on October 21, 2014. Notable within its response the

State asserted that Officer Turnbough effectuated the initial traffic stop

pursuant to a Tulsa municipal ordinance. In support of this contention, the

State attached to its response a copy of Officer Turnbough's police report which

provided the following:

We observed the driver of the listed Chevrolet Malibu make a left hand turn

without signaling. This is in violation of city ordinance T37-625-A: "For a left

turn, the driver's left hand and arm shall be held horizontally outside the

vehicle to indicate turning intention, or a blinker light on the front and rear

of the vehicle shall indicate the direction of turning."

¶8 Appellee filed his Reply to the State's Response to the Defendant's

Motion to Quash Illegal Arrest and Detention on October 22, 2014--the same

day as the final hearing on this matter. Therein, citing to

12 O.S.2011, § 2803(8)(a), Appellee

challenged the State's reference to and inclusion of Turnbough's police report

in its response brief. Appellee further asserted the trial court was precluded

from taking judicial notice of the municipal ordinance referred to in the

State's response and Turnbough's police report. Referencing Goomda v. City of

Okla. City , 1973 OK CR

81, ¶ 3 , 506 P.2d

991, 992 , Appellee averred the trial court was precluded from considering

the proffered ordinance.

¶9 At the October 22nd hearing, Special Judge Hiddle

sustained Appellee's motion to quash and suppressed all the evidence resulting

from the illegal stop. In so ruling, Judge Hiddle stated for the record "I am

stuck with the record that was presented at the hearing." While no further

evidence was presented at this hearing, brief argument was had regarding (1) the

alleged municipal ordinance, and (2) Appellee's unspecific motion to quash. With

regard to these two issues, Special Judge Hiddle made the following

comments:

I'm stuck with the evidence that was presented at the hearing, regardless. I

did grant more time for the State to present law, and so on, because the defense

filed a general motion.

Judge Hiddle further stated:

I will state for the record, I can't try these cases for either one of you.

It is true that--what you commented upon, Mr. Keller. I passed this case so that

you would have every opportunity--and it is not a trick, I just can't be telling

either party how to do their case. I passed it knowing--and we discussed this

last time, that it was a surprise, the Defendant's argument. Therefore, because

his motion was insufficient, I gave you [the State] plenty of time in order to

ask for whatever relief you wanted. . . . I am stuck with the record I have. . .

. The Court was perfectly willing to allow the State to reopen its case.

Thereafter, the State requested permission to reopen the case to which the

court stated, "Not now; it's too late. And I just waited, and waited, and waited

a moment ago for more arguments or more requests. I can't give hints. . . . And

so I'm stuck with the record; and because I am stuck with the record, the

defense prevailed." Id.

¶10 Additional information relating to these proceedings will be presented as

it becomes relevant to our discussion of the issues below.

DISCUSSION

¶11 Our review of the magistrate's decision is based on an abuse of

discretion standard. State v. Delso ,

2013 OK CR 5, ¶ 5 , 298 P.3d 1192, 1194 ("In appeals brought to this Court

pursuant to 22 O.S.2011, §

1053, this Court reviews the trial court's decision to determine if the trial

court abused its discretion."). An abuse of discretion has been defined as "a

clearly erroneous conclusion and judgment, one that is clearly against the logic

and effect of the facts presented." Neloms v. State , 2012 OK CR 7, ¶ 35 , 274 P.3d 161, 170 (quoting Stouffer v. State ,

2006 OK CR 46, ¶ 60 , 147 P.3d 245, 263 ). When reviewing a trial court's

ruling, we defer to the trial court's factual findings about the stop, unless

those findings are clearly erroneous. State v. Alba , 2015 OK CR 2, ¶ 4 , 341 P.3d 91, 92 . However, we review de novo the

magistrate's legal conclusions drawn from those facts. Id.

¶12 In the first proposition of error, Appellant contends Special Judge

Hiddle abused his discretion when he ruled Officer Turnbough's initial stop of

Appellee was illegal. "In terms of the initial justification for a traffic stop,

the Supreme Court has recognized that '[a]s a general matter, the decision to

stop an automobile is reasonable where the police have probable cause to believe

that a traffic violation has occurred.'" McGaughey v. State ,

2001 OK CR 33 , ¶ 25 & n.21,

37 P.3d 130 , 136 & n.21 (quoting

Whren v. United States , 517 U.S. 806, 810 , 116 S. Ct. 1769 , 135 L. Ed. 2d 89

(1996)). Additionally, the officer's subjective motivation for actually stopping

a particular vehicle is irrelevant to the legality of the stop so long as the

officer had probable cause to believe a traffic violation had occurred.

Id. , 2001 OK CR

33, ¶ 25 , 37 P.3d at 137 .

¶13 The facts provided by the record in this case regarding the initial

traffic stop are very limited. First, Officer Turnbough stopped Appellee's

vehicle after observing Appellee fail to signal his intention to turn left into

a parking lot. Second, when asked whether Appellee could "make the left turn

with safety," Officer Turnbough replied "[y]es." Finally, in response to whether

there was any traffic on the road, Officer Turnbough stated "[o]nly [Appellee's]

vehicle and us." Based on these limited facts and relying on Johnson v.

State ,

2013 OK CR

12 , 308 P.3d

1053 , Special Judge Hiddle ruled the initial stop was illegal pursuant to

47 O.S.2011, §

11-604.

¶14 Section 11-604 provides in pertinent part:

A. No person shall turn a vehicle at an intersection, a public or private

road, or a driveway, unless the vehicle is in proper position upon the roadway

as required in Section 11-601 of this title, or move right or left upon a

roadway unless and until such movement can be made with reasonable safety. No

person shall so turn any vehicle without giving an appropriate signal as

provided in subsection B of this section, in the event any other traffic may

be affected by such movement.

B. A signal of intention to turn right or left as required by law shall be

given continuously during not less than the last one hundred (100) feet traveled

by the vehicle before turning.

(emphasis added).

¶15 As occurred in the instant case, the defendant in Johnson v.

State ,

2013 OK CR

12 , 308 P.3d

1053 , was stopped for turning left without using his turn signal. Addressing

the legality of the stop, the Court set forth to analyze the purpose of § 11-604

and ascertain the Legislature's choice of the phrase "may be affected."

Johnson , 2013 OK CR

12, ¶¶ 9-11 , 308 P.3d at 1055-56 . Finding that the purpose of

47 O.S.2011, §

11-604 is "for drivers to notify other motorists in the immediate area of their

intention to make a turn or lane change, in order to prevent traffic accidents,"

the Court found the phrase means "a driver must engage a turn signal 'when there

is a reasonable possibility that other traffic may be affected.'"

Johnson, 2013 OK CR

12, ¶ 11 , 308 P.3d at 1055 -56 (quoting United States v. Burciaga ,

687 F.3d 1229, 1233 (10th Cir. 2012) which quotes State v. Hubble , 146

N.M. 70 , 206 P.3d 579, 584 (2009)). Hence, proof of any actual effect on other

traffic is not necessary to prove a violation of § 11-604; a reasonable

possibility that other traffic may have been affected is sufficient. Johnson,

2013 OK CR

12, ¶ 12 , 308 P.3d at 1056 . The record evidence in Johnson

established other cars were on the road at the time Johnson failed to signal.

Thus, the Court found this evidence was sufficient to prove a § 11-604 violation

which provided probable cause to legally stop Johnson. Id.

¶16 Applying Johnson to the record evidence presented in the instant

case, Special Judge Hiddle found the initial stop was illegal.

1 However, referring this

Court to United States v. Burkley , 513 F.3d 1183 (10th Cir. 2008), the

State contends this ruling was in error and asserts the mere fact that Officer

Turnbough's police car was on the roadway and may have been affected by

Appellee's failure to signal was sufficient to prove a § 11-604 violation. As

was done by this Court in Johnson, supra ., the Burkley Court

examined § 11-604 and rejected the defendant's contention that the State was

required to prove that traffic was actually affected by the defendant's

unsignaled turn. In doing so, the Court further concluded that under the facts

presented a police car can be the actual vehicle (or traffic) that may have been

affected. Id. at 1187 n.1.

¶17 As previously set forth, the record surrounding the initial stop in the

present case is less than ideal. As demonstrated by Burkley , the mere

fact that Officer Turnbough's police car and Appellee's vehicle were the only

two vehicles on the roadway at the time of the alleged traffic infraction does

not dictate a finding that the initial stop was illegal. However, the record

does not provide any indication of where Officer Turnbough's vehicle was in

relation to Appellee's vehicle to determine if Appellee's failure to signal may

have affected other traffic for purposes of § 11-604. Moreover, Officer

Turnbough testified Appellee could make the left turn safely into the parking

lot.

¶18 Subsequent to the trial court's ruling in this matter, the United States

Supreme Court handed down Heien v. North Carolina, ___ U.S. ___, 135 S.

Ct. 530 , 190 L. Ed. 2d 475 (decided Dec. 15, 2014). In Heien , an officer

stopped a vehicle because one of its two brake lights was out, when in actuality

the law only required one working brake light. Addressing "whether such a

mistake of law can nonetheless give rise to the reasonable suspicion necessary

to uphold the seizure under the Fourth Amendment", the Supreme Court ruled that

it can. Heien , 35 S. Ct. at 534. At first blush, the Heien case

appears applicable to the issue at hand; however, further analysis demonstrates

otherwise. In contrast to Heien , this is not a case involving a mistake

of law or fact by the officer involved, but a case involving mistakes by the

prosecutor. Nothing in the record indicates Officer Turnbough stopped Appellee

based upon a mistake or misunderstanding of the law or the facts. Rather, the

State simply failed to present sufficient facts at the motion hearing to

demonstrate the stop was reasonable pursuant to

47 O.S.2011, § 11-604. Nor did the State seek

to properly introduce into the record the relevant municipal ordinance, which

would have enabled the State to argue in the alternative that the stop was

reasonable based on this ordinance. While the trial court's unconventional

handling of the matter clearly set the stage for the confusion that ensued at

the hearing on Appellee's Motion to Quash Illegal Arrest and Detention ,

the State was given a sufficient opportunity to reexamine and shore up its case

as needed and failed to do so.

¶19 Thus, based upon the limited facts presented in this matter, we cannot

conclude the trial court abused its discretion when it ruled the initial stop

was illegal. Appellant's first proposition of error fails.

¶20 A finding that the initial stop in this matter was improper, however, is

not dispositive of whether Judge Hiddle properly suppressed "all evidence

resulting from the illegal stop." Evidence that is acquired because of prior

illegal activity is generally excluded as the fruit of that illegality. Wong

Sun v. United States,

371 U.S. 471, 484-85 , 83 S.Ct. 407, 415-16 , 9 L.Ed.2d

441 (1963). Yet, in keeping with Brown v. Illinois , 422 U.S.

590,

603 , 95 S. Ct. 2254, 2261 , 45 L. Ed. 2d 416 (1975), this Court has rejected "a

'but for' test which would require automatic exclusion of evidence that would

not have come to light but for the illegal actions of police." Jacobs v.

State, 2006 OK CR

4,

¶ 6 , 128 P.3d

1085, 1087 . We will thus address the State's remaining allegations of error

but do so in the logical order in which the issues present themselves based upon

the chain of events which transpired following the initial stop.

¶21 We turn next to the State's fourth proposition of error relating to

Appellee's obstructive behavior following the stop which ultimately led to his

arrest for obstruction and resisting arrest. The State in essence contends in

this proposition of error that the magistrate abused his discretion when he

suppressed the evidence relating to Appellee's obstruction and resisting arrest

charges as fruit of the illegal stop. At the October 22, 2014 hearing, the State

requested a specific ruling on its contention that "we can only suppress the

actual fruits of the detention, which is the failure to signal and the no

insurance, and not the separate criminal activities of the Defendant, which is

the obstruction and the resisting." Judge Hiddle ruled:

But you can resist an illegal detention or arrest, and I've ruled the

detention and arrest to be illegal, so that's--the law answers that question.

That's not even--I don't even have to strain my brain for that

one.

¶22 While "[t]he poisonous tree doctrine allows a defendant to exclude

evidence 'come at by exploitation' of violations of his Fourth Amendment

rights", United States v. Jarvi , 537 F.3d 1256, 1259 (10th Cir. 2008),

the State avers Appellee's decision to obstruct the traffic stop was a separate

criminal act that purged any possible illegal taint associated with the initial

traffic stop. See Flores v. State,

1999 OK CR 52, ¶ 11 , 994 P.2d 782, 784 ("[T]he original taint of impropriety

may be removed by intervening circumstances.")

To successfully suppress evidence as the fruit of an unlawful detention, a

defendant must first establish that the detention did violate his Fourth

Amendment rights. The defendant then bears the burden of demonstrating "a

factual nexus between the illegality and the challenged evidence." Only if the

defendant has made these two showings must the government prove that the

evidence sought to be suppressed is not "fruit of the poisonous tree," either by

demonstrating the evidence would have been inevitably discovered, was discovered

through independent means, or was so attenuated from the illegality as to

dissipate the taint of the unlawful conduct.

United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000)

(citation omitted).

¶23 A traffic stop is clearly a seizure under the Fourth Amendment.

Seabolt v. State ,

2006 OK CR 50, ¶ 6 , 152 P.3d 235, 237 . Thus, the next query is whether a

factual nexus exists between the illegal stop and Appellee's obstructive

behavior. "To establish the factual nexus, at a minimum, 'a defendant must

adduce evidence at the suppression hearing showing the evidence sought to be

suppressed would not have come to light but for the government's

unconstitutional conduct.'" United States v. Chavira, 467 F.3d 1286, 1291

(10th Cir. 2006) (quoting Nava-Ramirez , 210 F.3d at 1131 ). The threshold

question is whether the challenged evidence was a product of an "exploitation of

the original illegality." Flores , 1999 OK CR 52, ¶ 11 , 994 P.2d at 784-85 . In the present

case, the question thus being whether Appellee's behavior in walking away from

the stop was a direct product of the illegal stop or whether Appellee's conduct

was an intervening circumstance or act, which dissipated or purged any taint

originating from the illegal stop. To make this determination, "a reviewing

court must consider (a) the proximity in time between the illegal seizure and

the discovery of the evidence; (b) any intervening circumstances; and (c) the

purpose and flagrancy of official misconduct." Jacobs, 2006 OK CR 4, ¶ 6 , 128 P.3d at 1087 .

¶24 In the present case, the lapse of time between the initial stop and

Appellee's obstructive conduct was minimal. However, despite the brief lapse of

time, Officer Turnbough did not "discover" the challenged evidence, rather

Appellee's behavior actually created the now challenged evidence. This

distinction leads us to the second factor--the presence of an intervening

circumstance. We cannot find that Appellee's alleged obstructive behavior to be

the product of Officer Turnbough's illegal stop. Despite the questionable stop,

the record does not indicate that the officers involved had any intention other

than to simply write Appellee a ticket for failing to signal and carry proof of

insurance and then send Appellee on his way. Appellee's decision to behave as he

did was an independent and voluntary act which broke the link to any taint

caused by the illegal stop. See United States v. Boone, 62 F.3d 323, 326

(10th Cir. 1995) (the defendant's decision to discard evidence was an

independent and voluntary act sufficient to cut the link to the unlawful car

search).

¶25 As to the third and final factor, the purpose and flagrancy of the

official misconduct, this factor "may be shown by evidence that police actions

were purposefully investigatory in nature; that an arrest was obviously illegal;

and that an arresting officer was aware the arrest was illegal." Jacobs ,

2006 OK CR 4, ¶ 6 , 128 P.3d at 1087 .

The initial traffic stop in the instant case was not per se illegal. Nor does

the record show that Officer Turnbough was aware the stop was illegal. 2 The traffic stop,

although it was ultimately found to be illegal, simply does not qualify as a

flagrant Fourth Amendment violation that tilts the scales against attenuation.

Boone, 62 F.3d at 325 . Appellee's conduct was an intervening

circumstance, or act, which purged any taint originating from the initial stop.

Thus, we find the State's fourth proposition of error has merit. While the

evidence relating to Appellee's failure to carry insurance was properly

suppressed, Special Judge Hiddle erred when he suppressed all evidence relating

to Appellee's obstruction and resisting arrest charges.

¶26 This determination essentially answers the State's third proposition of

error. The State contends therein that the trial court erred when it applied the

exclusionary remedy to Appellee's resisting arrest charge. As just discussed,

Appellee's obstructive behavior was an independent act, which broke the link to

any taint originating from the unlawful stop. Hence, evidence of Appellee's

obstructive behavior was not a fruit of the questionable stop. Moreover, this

behavior formed the legal basis for Appellee's arrest for obstruction. See

Trent v. State ,

1989 OK CR 36, ¶ 4 , 777 P.2d 401, 402 ("Physical force is but one way of

obstructing an officer. . . . [W]ords alone may suffice to support a conviction

for Obstructing an Officer."). The exclusionary remedy is therefore not

applicable to Appellee's resisting arrest charge. Evidence of Appellee's

resisting arrest charge was suppressed in error.

¶27 Despite the foregoing determinations, the Court is cognizant that

Appellee's alleged obstructive behavior not only formed the legal basis for

Appellee's obstruction charge, but arguably could be viewed as an act of

resistance to the seizure that occurred when Appellee was stopped. Thus, we turn

next to the State's second proposition of error in which the State asserts the

magistrate erred when he extended the limited common law right to resist an

illegal arrest to permit Appellee to walk away from the traffic stop. The

analysis of this issue requires this Court to focus on (1) the Fourth Amendment

seizure which occurred when Appellee was stopped, and (2) whether Appellee had a

right under Oklahoma law to resist such seizure.

¶28 As a general rule, one may reasonably resist an unlawful arrest.

Sandersfield v. State ,

1977 OK CR 242, ¶ 11 , 568 P.2d 313, 315 . The right to resist an illegal

arrest is a common law right providing that "[i]f the officer had no right to

arrest, the other party might resist the illegal attempt to arrest him, using no

more force than was absolutely necessary to repel the assault constituting the

attempt to arrest." 3 Bad Elk v. United States , 177 U.S.

529,

535 , 20 S. Ct. 729, 731 , 44 L. Ed. 874 (1900). The right to resist an unlawful

arrest is thus limited and varies with the circumstances. Sandersfield ,

1977 OK CR 242, ¶ 11 , 568 P.2d at 315 .

See also Hayes v. State, 1977 OK CR 220, ¶ 3 , 566 P.2d 1174, 1175 ("In Oklahoma, under some

circumstances, a person may reasonably resist an unlawful arrest."). While a

person in Oklahoma may reasonably resist an unlawful arrest, the circumstances

in the instant case involve an unlawful traffic stop--not an arrest. Whether

this common law right extends to an unlawful traffic stop is a unique issue

which this Court has not previously addressed.

¶29 As noted in Graves v. Thomas, 450 F.3d 1215, 1223 (10th Cir.

2006), "a routine traffic stop is not equivalent to an arrest." An

"[a]rrest is the taking of a person into custody, so that he may be held to

answer for a public offense."

22 O.S.2011, § 186. "An arrest is made by an

actual restraint of the person of the defendant, or by his submission to the

custody of the officer." 22 O.S.2011, § 196. "A [traffic] stop, while

an intrusion on liberty, is slight compared to the deprivation of freedom that

results from an arrest." Barnhard v. State, 86 Md.App. 518, 528 , 587 A.2d

561, 566 (1991), aff'd, 325 Md. 602 , 602 A.2d 701 (1992). As

compared to an arrest, a traffic stop entails a lesser intrusion on one's

personal liberty than an arrest and is a relatively brief encounter with police

officers. Thus, while "[a] traffic stop is a seizure within the meaning of the

Fourth Amendment, . . . a routine traffic stop is more analogous to an

investigative detention than a custodial arrest." Graves , 450 F.3d at

1223 -24 (quoting United States v. Bradford, 423 F.3d 1149, 1156 (10th

Cir. 2005)). See also Castellano v. State, 1978 OK CR 107, ¶ 8 , 585 P.2d 361, 365 ("If an officer is momentarily

detaining a person in order to make an inquiry so as to determine his identity

and obtain more information, and is in no way attempting to restrain him of his

liberty or take him into custody, then the stop does not constitute an arrest,

but, rather, is an investigatory detention.").

¶30 The majority of states which have considered the issue of whether the

right to resist extends or applies to investigatory stops or detentions have

either statutorily or judicially rejected such an extension. Graves , 450

F.3d at 1225 n.7 (referencing Faulkner v. State, 277 Ga.App. 702 ,

627 S.E.2d 423, 425 (Ga. Ct. App. 2006) ("We do not leave the determination of

whether there is a legal basis for a traffic stop to the driver. To hold

otherwise could encourage persons to resist the police and create potentially

violent and dangerous confrontations.") (internal quotations and citations

omitted); State v. Windus, 207 Ariz. 328 , 86 P.3d 384 , 387 n. 3 (Ariz.

Ct. App. 2004); State v. Sims, 851 So.2d 1039, 1047 (La. 2003); State

v. Howell, 782 N.E.2d 1066, 1067-68 (Ind. Ct. App. 2003); Com v.

Hill, 264 Va. 541 , 570 S.E.2d 805, 808 (Va. 2002); State v. Coleman,

10 Neb.App. 337 , 630 N.W.2d 686, 697 (Neb. Ct. App. 2001); Abrams v.

Walker, 165 F. SupP.2d 762, 767 (N.D.Ill. 2001); State v. Wiegmann,

350 Md. 585 , 714 A.2d 841 (Md. 1998); State v. Dawdy, 533 N.W.2d 551,

555-56 (Iowa 1995) (adopting the Eighth Circuit's holding in United States v.

Dawdy, 46 F.3d 1427 (8th Cir.1995))). Moreover, in California v. Hodari

D. ,

499 U.S. 621, 627 , 111 S. Ct. 1547, 1551 , 113 L. Ed. 2d 690 (1991),

the Supreme Court cautioned:

We do not think it desirable, even as a policy matter, to stretch the Fourth

Amendment beyond its words and beyond the meaning of arrest, as respondent

urges. . . . Compliance with police orders to stop should therefore be

encouraged. Only a few of those orders, we must presume, will be without

adequate basis, and since the addressee has no ready means of identifying the

deficient ones it almost invariably is the responsible course to comply.

¶31 We likewise decline to extend the right to resist to an illegal traffic

stop. Compared to an arrest, a routine traffic stop is a short-lived encounter

with law enforcement that entails far less of an intrusion on a driver's

personal liberty. Additionally, the typical motorist simply is not equipped to

make a determination of whether there is a legal basis for a traffic stop.

Whether the officer did, in hindsight, have probable cause to make the traffic

stop should be resolved in a courtroom, not in the streets. To permit otherwise

would effectively encourage drivers to engage in potentially explosive self-help

methods. This, in turn, would increase the risk of escalating what should be a

relatively benign interaction between law enforcement and a driver into a

potentially dangerous or violent interaction. See Rodgers v. State , 280

Md. 406, 419-20 , 373 A.2d 944, 951-52 (1977) (We cannot "ignore the fact that

combat on the streets between police officers and a citizen resisting arrest can

and often does involve passersby or other citizens, some of whom may be inclined

to enter the fray, to their detriment--others of whom may suffer injury merely

by being in the way."). As we have seen played out in the news time and time

again, resisting an arrest often results in injuries to police officers,

suspects, and passersby that are much graver than the arrest itself.

Barnhard, 86 Md.App. at 527 , 587 A.2d at 566 . As observed by the Supreme

Court of California, in People v. Curtis , 70 Cal.2d 347 , 74 Cal.Rptr.

713, 716 , 450 P.2d 33, 36 (1969):

[S]elf-help as a practical remedy is anachronistic, whatever may have been

its original justification or efficacy in an era when the common law doctrine

permitting resistance evolved. . . . Indeed, self-help not infrequently causes

far graver consequences for both the officer and the suspect than does the

unlawful arrest itself. Accordingly, the state, in deleting the right to resist,

has not actually altered or diminished the remedies available against the

illegality of an arrest without probable cause; it has merely required a person

to submit peacefully to the inevitable and to pursue his available remedies

through the orderly judicial process.

¶32 Resistance to a traffic stop is undoubtedly the "least effective and

least desirable of all possible remedies [to an illegal traffic stop]."

Rodgers, 280 Md. at 421 , 373 A.2d at 952 . To recognize or extend the

right to resist such momentary seizures, short of an arrest, would serve only to

expand the danger of violence. Barnhard , 86 Md.App. at 528 , 587 A.2d at

566 . Thus, we decline to recognize a right to resist an unlawful traffic stop in

Oklahoma. Balancing the State's interest in discouraging violence against the

brief seizure typical to a traffic stop, this ruling does not result in a

deprivation of liberty. See Rodgers, 280 Md. at 421 , 373 A.2d at 952

(Court's rejection of physical resistance "when balanced against the State's

interest in discouraging violence, cannot be realistically considered a

deprivation of liberty.").

¶33 In so ruling, we find the State's second proposition of error has merit.

Assuming arguendo that Appellee perceived the initial stop to be

unlawful, Appellee did not have the right to resist the stop. Whether a stop is

lawful is an issue to be resolved peacefully in a courtroom, not by a driver

while pulled over on the side of the road, or as occurred in this matter in a

parking lot. Although Officer Turnbough lacked probable cause to stop Appellee

under the facts contained within this record, Appellee did not have a right

under Oklahoma law to resist that stop.

¶34 The State complains in its final assignment of error that the trial court

erred when it placed the onus on the State to decipher Appellee's overly vague

motion to quash. At the October 1, 2014 hearing on Appellee's motion, the trial

court determined Appellee's motion violated the specificity requirements of Rule

4 of the Rules for the District Courts of Oklahoma, 12 O.S.2011, Ch 2, App.

(2014). As a result, Special Judge Hiddle continued the hearing to October 22,

2014, to provide the State time to seek relief or request permission to reopen

its case.

4 This continuance provided the State with sufficient

time to determine how best to address Appellee's brief, including seeking to

reopen the case to present additional evidence and properly introduce the

relevant municipal ordinance the State contended in its reply brief was actually

the legal basis of the challenged stop. Despite the somewhat unconventional

manner in which the trial court handled this entire matter, the State has failed

to demonstrate the trial court's overall treatment of Appellee's insufficient

motion was an abuse of discretion. See Neloms , 2012 OK CR 7, ¶ 35 , 274 P.3d at 170 ("An abuse of

discretion is any unreasonable or arbitrary action taken without proper

consideration of the facts and law pertaining to the matter at issue."). Thus,

the State's final proposition of error fails.

DECISION

¶35 The October 22, 2014 ruling of the trial court sustaining Appellee's

motion to quash and suppressing the evidence in this case is REVERSED and

this case is REMANDED to the trial court for further proceedings not

inconsistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma

Court of Criminal Appeals , Title 22, Ch.18, App. (2015), the MANDATE

is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE

HONORABLE BILL HIDDLE, SPECIAL JUDGE

APPEARANCES AT

HEARING

APPEARANCES ON APPEAL

KEVIN KELLER

ASSISTANT DISTRICT ATTORNEY

500 S. DENVER

AVE., STE. 900

TULSA, OK 74103

ATTORNEY FOR

STATE

KEVIN KELLER

ASSISTANT DISTRICT ATTORNEY

500 S. DENVER

AVE., STE. 900

TULSA, OK 74103

ATTORNEY FOR

APPELLANT

ROB V. HENSON

HENSON LAW FIRM, PLLC

406 S.

BOULDER

TULSA, OK 74103

ATTORNEY FOR DEFENDANT

ROB V. HENSON

HENSON LAW FIRM, PLLC

406 S. BOULDER

TULSA, OK 74103

ATTORNEY

FOR APPELLEE

OPINION BY: HUDSON, J.

SMITH, P.J.: CONCUR IN RESULTS

LUMPKIN, V.P.J.:

CONCUR IN RESULTS

JOHNSON, J.: CONCUR

LEWIS, J.: CONCUR

FOOTNOTES

1 Special Judge Hiddle's

analysis was based on Officer Turnbough effectuating the stop pursuant to

47 O.S.2011, §

11-604. The State argued in its Response to Defendant's Motion to Quash

Illegal Arrest and Detention that Officer Turnbough actually stopped

Appellee pursuant to a Tulsa municipal ordinance which apparently requires

motorists to always signal the direction they intend to turn. However, the State

failed to properly introduce the relevant ordinance into the record. See

Hishaw v. City of Oklahoma City, 1991 OK CR 122, ¶ 3 , 822 P.2d 1139, 1139-40 (outlining appropriate methods by

which to properly bring an ordinance to the attention of a court). The trial

court was also precluded from taking judicial notice of this ordinance. See

Hayes v. State , 1977 OK CR 220, ¶ 5 , 566 P.2d 1174, 1175 (a district court may not take

judicial notice of a municipal ordinance). Therefore, Judge Hiddle was precluded

from considering the ordinance when determining whether Officer Turnbough had

probable cause to believe a traffic violation had occurred.

2 Special Judge Hiddle acknowledged that not many

officers are aware of the Johnson case, stating "Officers don't know. . .

. And most lawyers don't know this case. But I will talk about it in a minute."

While Judge Hiddle's comment implies a mistake of law, as discussed in footnote

2 above, that is not what occurred in this matter. See Heien , 35 S. Ct.

530 . Officer Turnbough appears to have understood the law. In all likelihood the

stop was lawful, but sadly the record is simply not sufficient to support such a

finding. To this end we reiterate that although Officer Turnbough may have

actually stopped Appellee pursuant to a Tulsa municipal ordinance, just as the

district court was precluded from taking judicial notice of such ordinance, so

too is this Court. See Hayes , 1977 OK CR 220, ¶ 3 , 566 P.2d at 1175 (neither this Court

nor a District Court may take judicial notice of a municipal ordinance);

Hishaw , 1991 OK CR

122, ¶ 4 , 822 P.2d at 1140 ("the ordinance under challenge was not included in the

record on appeal and therefore is not properly before this Court for review.").

3 The origins of the right to resist an unlawful arrest

can be traced to the Magna Carta in 1215. Hemmens & Levin, " Not a Law at

All": A Call for a Return to the Common Law Right to Resist Unlawful Arrest ,

29 Sw. U. L. R. 1, 9 (1999). The right was judicially established in 1666 in the

Hopkin Huggett's Case, 84 Eng. Rep. 1082 (K.B. 1666). The court reasoned that an

illegal arrest "created adequate provocation for the victim, thus justifying the

victim's resistance." Id. (citing Hopkin Huggett's Case, 84 Eng. Rep.

1082 (K.B. 1666)).

4 In issuing his ruling, Special Judge Hiddle stated at

the October 22, 2014 hearing, "I passed it knowing - and we discussed this last

time, that it was a surprise, the Defendant's argument. Therefore, because his

motion was insufficient, I gave you [the State] plenty of time in order to ask

for whatever relief you wanted. . . . The Court was perfectly willing to allow

the State to reopen its case. . . . I just waited, and waited, and waited a

moment ago for more arguments or more requests. I can't give hints."

LUMPKIN, VICE PRESIDING JUDGE: CONCUR IN RESULTS:

¶1 I concur in reversing the order of the District Court sustaining the

motion to quash and suppress the evidence. I also agree with remanding the case

to the District Court for further proceedings. I write separately though to

address several points.

¶2 I disagree with the opinion's reliance on the common law. Oklahoma is not

a common law state. Our laws have been codified by the Legislature in the form

of state statutes and these statutes supplant the common law except where the

Legislature has failed to speak. Title 12 O.S.2011, § 2 provides: "[t]he common law, as modified

by constitutional and statutory law, judicial decisions and the condition and

wants of the people, shall remain in force in aid of the general statutes of

Oklahoma; but the rule of the common law, that statutes in derogation thereof,

shall be strictly construed, shall not be applicable to any general statute of

Oklahoma; but all such statutes shall be liberally construed to promote their

object." See also Ex part Reniff , 65 Okla. Crim. 400 , 88 P.2d 382, 383 (1939) (12 O.S. § 2 applies to both civil and criminal cases).

Title 22 O.S.2011, §

9

provides: "[t]he procedure, practice and pleadings in the courts of record of

this state, in criminal actions or in matters of criminal nature, not

specifically provided for in this code, shall be in accordance with the

procedure, practice and pleadings of the common law." See also Elliott v.

Mills , 1959 OK CR

22, ¶ 27 , 335 P.2d

1104, 1111 ("[t]he Constitution of Oklahoma is silent upon any adoption or

abrogation of the common law. However the legislature announced by statute the

force and effect of the common law in Oklahoma" citing 12 O.S. § 2); State v. Sandfer ,

93 Okla. Crim.

228 , 226 P.2d

438, 442 (1951) (there are no common law crimes in Oklahoma); Bingham v.

State, 82 Okla. Crim. 305 , 169 P.2d 311, 315 (1946) ("[w]e only look to the common

law in Oklahoma where procedure in matters of criminal nature are not

provided for in the code", citing 22 O.S. § 9)(emphasis added); Barclay v.

U.S ., 11 Okla. Crim.

503 , 69 P.

798, 800 (1902) ("[t]he federal courts hold that there are no common-law

crimes under the laws of the United States; that all crimes, the punishment and

the procedure are statutory, the whole criminal jurisdiction of the courts of

the United States being derived from acts of congress".) The principle that

statutes prevail over the common law is also seen throughout our law. See

Gilbert v. State , 1982 OK CR 100, ¶ 21 , 648 P.2d 1226, 1231 (statutes defining contempt

supplanted common law definition of contempt); Campbell v. State ,

1972 OK CR 195, ¶ 4 , 500 P.2d 303 (common law writ of coram nobis supplanted

by statutory Post-Conviction Procedure Act); 60 O.S.2011, § 175.50 (regarding the

application of statutes over common law in property issues). The issues in the

present case may be resolved by reliance on our state statutes, and not the

common law or cases from other jurisdictions, with statutes different from

Oklahoma.

¶3 This opinion cites to a line of cases which state that a person has the

right to resist an unlawful arrest. This principle has not been codified in our

statutes. The validity of this principle has been limited, if not supplanted, by

our state statutes. The Legislature has enacted statutes prohibiting resisting

an arrest and obstructing an officer. See 21 O.S.2011, §§ 268 and 540. In

22 O.S.2011, § 196, the Legislature has

defined what is a legal, warrantless arrest. In § 196(1) an officer may legally

arrest, without a warrant, for a public offense, committed or attempted, in the

officer's presence. The Legislature has also provided that if a person, after

being notified that he is to be arrested, flees or forcibly resists, the officer

may use all necessary means to effect the arrest. 22 O.S.2011, § 193. Additionally, in 22

O.S.2011, §§ 31-33, the Legislature has set forth who may resist the commission

of a public offense. The Legislature has not provided any exceptions to these

rules which would incorporate a right to resist arrest. These statutes have

essentially changed the common law of arrest and any right there may have been

to resist arrest. The Legislature has implicitly if not explicitly, supplanted

the common law of arrest with these state statutes.

¶4 The opinion distinguishes Heien v. North Carolina , ___ U.S. ___,

135 S.Ct. 530 , 190 L.Ed.2d 475 (2014), from the present case. However, I would

urge the trial court on remand to review Heien as it appears, though it

is by no means clear, that the initial traffic stop was ruled illegal based

solely upon the court's reading of Johnson v. State , 2013 OK CR 12 , 308 P.3d 1053 and the officer's alleged misunderstanding

of the law. In Heien, the Supreme Court held that a search or seizure may

be permissible even though the justification for the action includes a

reasonable factual mistake or mistake of law by the officer. Therefore, if the

officer's actual understanding of the law was correct or if the officer had a

legitimate belief that the statute or ordinance had been violated, then under

Heien, the stop and arrest would be legal. Regardless, I find no evidence

of officer misconduct and without officer misconduct there can be no application

of the Exclusionary Rule as the rule is only in place to address police

misconduct. Hill v. State, 1988 OK CR 251, ¶ 10 , 764 P.2d 210, 213 ("[t]he purpose of the exclusionary

rule is to deter police misconduct and to provide an effective remedy for

unreasonable searches and seizures in violation of the fourth amendment of the

United States Constitution and Article II, § 30, of the Oklahoma Constitution").

¶5 In the present case, the judge took a proactive role in this hearing,

apparently based on matters not a part of this record. While the prosecutor

should have taken the opportunity to reopen the case, offer the municipal

ordinance for admission into evidence and make a full record, the actions of the

judge had already chilled the proceedings and contributed to the limited and

confusing record in his case. While it is understandable under the record before

us that the prosecutor did not take advantage of the opportunity to reopen his

case, it is nonetheless the lawyer's responsibility to make the record and

provide it to this Court on appeal.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Criminal Appeals Cases

Cite Name Level

1988 OK CR 251 , 764 P.2d 210 , HILL v. STATE Discussed

1989 OK CR 36 , 777 P.2d 401 , TRENT v. STATE Discussed

1991 OK CR 122 , 822 P.2d 1139 , HISHAW v. CITY OF OKLAHOMA CITY Discussed at Length

1977 OK CR 220 , 566 P.2d 1174 , HAYES v. STATE Discussed at Length

1977 OK CR 242 , 568 P.2d 313 , SANDERSFIELD v. STATE Discussed at Length

1978 OK CR 107 , 585 P.2d 361 , CASTELLANO v. STATE Discussed

2001 OK CR 33 , 37 P.3d 130 , 72 OBJ 3431, MCGAUGHEY v. STATE Discussed at Length

2006 OK CR 4 , 128 P.3d 1085 , JACOBS v. STATE Discussed at Length

2006 OK CR 46 , 147 P.3d 245 , STOUFFER v. STATE Discussed

2006 OK CR 50 , 152 P.3d 235 , SEABOLT v. STATE Discussed

2012 OK CR 7 , 274 P.3d 161 , NELOMS v. STATE Discussed at Length

2013 OK CR 5 , 298 P.3d 1192 , STATE v. DELSO Discussed

2013 OK CR 12 , 308 P.3d 1053 , JOHNSON v. STATE Discussed at Length

2015 OK CR 2 , 341 P.3d 91 , STATE v. ALBA Discussed

1999 OK CR 52 , 994 P.2d 782 , Flores v. State Discussed at Length

1959 OK CR 22 , 335 P.2d 1104 , ELLIOTT v. MILLS Discussed

1939 OK CR 16 , 88 P.2d 382 , 65 Okl.Cr. 400 , Ex parte Reniff Cited

1946 OK CR 54 , 169 P.2d 311 , 82 Okl.Cr. 305 , Bingham v State Cited

1951 OK CR 4 , 226 P.2d 438 , 93 Okl.Cr. 228 , STATE v. SANDFER Discussed

1982 OK CR 100 , 648 P.2d 1226 , GILBERT v. STATE Discussed

1972 OK CR 195 , 500 P.2d 303 , CAMPBELL v. STATE Discussed

1973 OK CR 81 , 506 P.2d 991 , GOOMDA v. CITY OF OKLAHOMA CITY Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1902 OK 19 , 69 P. 798 , 11 Okla. 503 , BARCLAY v. UNITED STATES Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 2 , Common Law to Remain in Force in Aid of General Statutes Discussed at Length

12 O.S. 2803 , Hearsay Exceptions - Availability of Declarant Immaterial Cited

Title 21. Crimes and Punishments

Cite Name Level

21 O.S. 268 , Resistance to Executive Officer's Performance of Duty Discussed

21 O.S. 540 , Obstruction of Public Officer - Recording the Activity of an Officer in a Public Area Cited

Title 22. Criminal Procedure

Cite Name Level

22 O.S. 9 , Common Law Discussed

22 O.S. 186 , Definition of Arrest Cited

22 O.S. 193 , Officer's Authority When Defendant Resists Arrest Cited

22 O.S. 196 , Arrest Without Warrant by Officer Discussed

22 O.S. 1053 , State or Municipality May Appeal in What Cases Discussed

Title 47. Motor Vehicles

Cite Name Level

47 O.S. 7 -606, Failure to Maintain Insurance or Security - Failure to Provide Proof of Insurance or Security - Penalties Cited

47 O.S. 11 -604, Turning Movements and Required Signals Discussed at Length

Title 60. Property

Cite Name Level

60 O.S. 175 .50, Repeal - Operation and Effect Cited