Brown v. City of Oklahoma City

RAPP, Judge,

specially concurring.

I join in the majority opinion. Even cleansed in the normal process of arriving at a stipulation, the stipulation itself still reveals a scenario which demands return to the trial court. This type of conduct within the curtilage, when the officers’ presence is without right, invitation or consent, is impermissible.

Police officers are professionals. They are volunteers. They are individuals who have offered their services to assist other citizens of the community by upholding the law. They are more than mere enforcers of the peace. They are the bulwark of security which allows citizens to feel safe in their lives and homes. They are public servants. They are to be looked up to and admired. They are in many cases examples to be followed. The deliberate abuse and misuse of the office and assumption of *1353 unauthorized power cannot be condoned. To allow or condone such a deviation or exercise of unauthorized power is to allow a breach in the Fourth Amendment shield protecting each of us against potential oppressive actions of government. It is to avoid such cracks and breaches in this shield that the courts are and have been ever vigilant.

The Supreme Court recognized the potential harm of such power in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 390 , 91 S.Ct. 1999, 2001 , 29 L.Ed.2d 619 (1971), when it stated:

[T]he fact that power, once granted does not disappear like a magic gift when it is wrongfully used. An agent acting — albeit unconstitutionally — in the name of the United States of America possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.

Further as the U.S. Supreme Court said in Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980), in prohibiting police from making a warrantless nonconsensual entry into a suspect’s home in order to make a routine felony arrest:

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

The court further stated 445 U.S. at 601 , 100 S.Ct. at 1387 :

[NJeither history nor this Nation’s experience requires us to disregard the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.54

Footnote 54 states:

There can be no doubt that Pitt’s address in the House of Commons in March 1763 echoed and re-echoed throughout the Colonies:

“ ‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!’ ” Miller v. United States, 357 U.S. [301,] at 307, 78 S.Ct. [1190,] at 1195 [, 2 L.Ed.2d 1332 .]

Clearly and admittedly the police in this case had no legal authority to enter and search plaintiff’s home and to seize her automobile. They did not have a search warrant or any other order of the court. The action occurred within the curtilage. 14 Any act therein is an act within the home. Any action within the home not authorized by law is per se unreasonable. The police conducted a warrantless impermissible search not only of the garage but also of a Toyota vehicle not remotely involved. This was unreasonable, Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). There were no exigent circumstances that justified crossing the threshold, Payton . The police were determined to exercise power and did. These officers were not on a lawful mission. They did, after arrival, exercise unauthorized, unlawful, raw, naked power.

Brown had the right to resist this unlawful intrusion into her home. She and her children had done nothing wrong. As stated by the U.S. Supreme Court in Frank v. State of Maryland, 359 U.S. 360, 364 , 79 S.Ct. 804, 807 , 3 L.Ed.2d 877 (1959) (reversed on other grounds):

[T]wo protections emerge from the broad constitutional proscription of official invasion. The first of these is the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law. The second, and intimately related protection, is self-protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual....

The dissent would hold this right of resistance to be an outdated rule of law — an *1354 anachronism — and justifies its rationale by the use of cases involving illegal search warrants. I do not quarrel with the dissent’s rationale involving issued search warrants. One disobeys them at their peril. It is the function of the courts to determine their legality, if and when questioned. It would appear, in the final analysis, that the dissent would have us abandon a crucial right under the Constitution. I am not prepared to do this.

We are here concerned with the entry into the home without a search warrant. The fact in this case is that there was no search warrant, exigent circumstances, consent or invitation which justifies the officers’ acts set forth in the stipulation.

For the above reasons I specially concur in the majority opinion.

. See Luman v. State, 629 P.2d 1275, 1276 (Okla.Crim.1981) where the court there stated: The curtilage area, historically considered as an extension of a man’s house, has Fourth Amendment protection against unreasonable search and seizure. Curtilage includes all outbuildings used in connection with a residence, such as garages, sheds, barns, yards and lots connected with and in close vicinity of the residence_ (Emphasis added.)