Shepard v. State

BRETT, Presiding Judge,

specially concurring:

The problem with the majority opinion’s disposal of appellant’s fifth assignment of error is that the record indicates that at the time the officers went to arrest appellant at his home, they had only a valid arrest warrant and not a search warrant.

When the officers arrived at appellant’s home, one went to the front door and the other went around to the back. The officer at the back door knocked, and appellant stepped outside and quickly shut the door behind him. The officer testified he saw, through the open door, a cow’s head in the sink and he thought there were two people in the house. He entered the house without permission or a warrant to search for them. The officers did not serve the arrest warrant until after they were both inside the house. Appellant testified that the officers searched all four rooms, as well as the garage, the attic, and the basement. They looked inside the kitchen cabinets, the deep freeze, under the bed and between the mattress. Officer Russell confirmed this in his testimony when he testified they even looked into a tool box, “places big enough for a man to be in.”

Appellant raises two claims why the evidence found inside his home should have been suppressed: 1) because the arrest warrant was illegally executed, and 2) because the State failed to justify the war-rantless search of his home. I find the arrest warrant and the service of it was valid. I do not find, however, the search and seizure was lawful; the evidence was not admissible under the plain view doctrine as claimed in the majority opinion.

Although the arrest warrant was not handed over to appellant until the officers were inside the house, appellant was legally arrested on the back step of his home, with the door shut behind him. This Court has previously approved of the definition of arrest found in 6A C.J.S. Arrest § 2, which is: “[T]he taking, seizing, or detaining the person of another either by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest, ...” Castellano v. State, 585 P.2d 361, 364 (Okl.Cr.1978). We have also ruled that, “[w]hen a person voluntarily cooperates with the police and is free to leave, there is no arrest. If there is no manual seizure or any resist- *603 anee, the intentions of the parties are very important. There must be an intent to arrest by the officer and an understanding by the arrestee that submission is necessary.” Devooght v. State, 722 P.2d 705, 708 (Okl.Cr.1986).

Appellant was subjected to the actual control and will of investigator Russell when he informed appellant that they were going to go into the house. Russell’s testimony that he went to appellant's home for the purpose of arresting him and in fact was the one who arrested appellant is sufficient proof that appellant was not free to leave. Holbird v. State, 650 P.2d 66, 70 (Okl.Cr.1982). Because appellant was arrested outside of his home, the investigator and the deputy were not free to conduct a search of the home unless a search warrant had been issued, an exigent circumstance existed or appellant had consented to the warrantless search.

As the majority opinion recognizes, there are three elements to the plain view exception to the warrant requirement:

a. it must be immediately apparent that the items are evidence of a crime,

b. the officer must have a prior justification for his presence and a lawful right to be there and,

c. the discovery of the evidence must be inadvertent.

Tucker v. State, 620 P.2d 1314 (Okl.Cr.1980). The majority opinion misstates the second requirement as requiring prior justification for being in the place where the items were seen. The opinion then concludes that the evidence inside the house was admissible under the plain view doctrine because the observation of one piece of evidence was viewed from the outside of the house, a place where the officer legally had a right to be. The United States Supreme Court explained that “[t]he plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Illinois v. Andreas, 463 U.S. 765 , 103 S.Ct. 3319 , 77 L.Ed.2d 1003 (1983).

In Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) the United States Supreme Court addressed in depth, the basis and the scope of the plain view doctrine. The Court recognized the well-settled rule that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. Id. at 739 , 103 S.Ct. at 1541. However, a different situation is presented when the property is “situated on private premises to which access is not otherwise available for the seizing officer.” G.M. Leasing Corp. v. United States, 429 U.S. 338 , 97 S.Ct. 619 , 50 L.Ed.2d 530 (1977). The Court concludes in Brown that the plain view exception therefore is not “an independent exception to the Warrant Clause, but simply ... an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.” Brown, 460 U.S. at 739 to 740, 103 S.Ct. at 1541 to 1542.

Applying these principles to the instant case we find the arrest of the appellant was made outside of his home; at that time, he became subject to the actual control of the officers and he subjectively knew he was not free to leave. Devooght, 722 P.2d at 708 . From that moment on, the officers needed some prior justification to enter the appellant’s home and to seize the evidence viewed from outside including the cow’s head. The officers must have had either a search warrant or an exigent circumstance which would allow them to enter the house and search without a warrant. Payton v. New York, 445 U.S. 573, 589 , 100 S.Ct. 1371, 1381 , 63 L.Ed.2d 639 (1980); see also Teeman v. State, 664 P.2d 1071 (Okl.Cr.1983).

One of the exceptions to the warrant rule is that a search may be conducted where exigent circumstances or a state of emergency exists. Fisher v. State, 668 P.2d 1152, 1156 (Okl.Cr.1983). “The relevant test in that situation is not whether it is reasonable to obtain a warrant, but whether the search was reasonable.” Id. at 1156 . Two situations which may amount to an exigent circumstance are where the officers must conduct a protective sweep to prevent immediate danger and where there *604 is an immediate possibility that evidence will be destroyed. “[T]he suspicion of danger must be clear and reasonable in light of all surrounding circumstances. Officers of the law are not given free reign to conduct sweep searches on the pretense that a dangerous situation might be imminent.” United States v. Tabor, 722 F.2d 596 (10th Cir.1983). “A protective sweep is not a thorough search. It is merely a quick and cursory viewing to check for other persons who might present a security risk.” United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). The testimony in this case reveals that the search included looking between mattresses, in the deep freeze and even in a tool box; it is apparent the scope of a protective sweep was greatly exceeded by the officers in this case if it was ever legitimate at the inception. No one was found in the search.

The contraband removal or destruction exception is grounded in necessity. The nature of the specific situation must be such that it is not feasible for law officers to take the time required to secure a search warrant. Blackburn v. State, 575 P.2d 638 (Okl.Cr.1978). The State has the burden of showing that the circumstances of the situation fell within one of the specific exceptions of the warrant requirement. Id., at 642 . In Blackburn , the Court held that no exigent circumstances existed which would permit the warrantless search, where the property was not in the “process of destruction nor likely to be destroyed.” Id., at 643 .

An analysis of the facts and the law has led me to conclude that no exigent circumstances existed at the time of the search of appellant’s home. Items discovered in this search included a cow’s head, four quarters of beef, and a stockyard delivery receipt. As a consequence of this unlawful search and seizure, all evidence obtained from inside the appellant’s house and garage was inadmissible at trial, and it was error for the trial court to have admitted the same.

Having found that this evidence should have been suppressed, our last inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). Our examination of the facts reveals that the State presented sufficient evidence in support of the jury’s verdict and the admission of this evidence was merely cumulative and did not prejudice the jury on the issue of guilt or in setting punishment.

PARKS, Judge,

specially concurring:

Again, I must express my disagreement with this Court’s position regarding a defendant’s admission of prior convictions. As I stated in my separate opinion in Hanson v. State, 716 P.2d 688, 690 (Okla.Crim.App.1986), the decision of whether to find the appellant guilty of former convictions is within the province of the jury. However, I am compelled to concur in the result reached as a matter of stare decisis. Id. at 690 .

Appellant also urges that he was entitled to credit for the time he served prior to trial. Clearly, the better practice is to credit appellant’s sentence with the time served prior to trial, although the trial judge is not required to do so. See Hammons v. State, 719 P.2d 463, 465 (Okla.Crim.App.1986).