holding defendant's behavior in walking away from traffic stop for failing to signal left-hand turn was an intervening circumstance which purged any taint originating from the illegal stop
How later courts described this case
- holding defendant's behavior in walking away from traffic stop for failing to signal left-hand turn was an intervening circumstance which purged any taint originating from the illegal stop
Written by the judges who cited it.
The opinion
*1124 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.
T2 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 0.8.2011, § 2 provides: "[the 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 parte Reniff, 65 Okla.Crim. 400 , 88 P.2d 382, 383 (1939) (12 0.8. § 2 applies to both civil and criminal cases). Title 22 0.8.2011, § 9 provides: "[tlhe procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of eriminal 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 ("[the 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 0.8. § 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) ("[wle 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.8. § O)(emphasis added) Barelay v. U.S., 11 Okla. 503 , 69 P. 798, 800 (1902) ("[tlhe 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 crithinal 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 0.8.2011, § 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.
T3 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 0.8.2011, §§ 268 and 540. In 22 0.8.2011, § 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 0.8.2011, § 198. Additionally, in 22 0.8.2011, §§ 31-38, 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.
T4 The opinion distinguishes Helen v. North Carolina, - U.S. -, 135 S.Ct. 530 , 190 LEd.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 *1125 traffic stop was ruled flegal 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 Helen, 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 Helen, 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 ("[the 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, $ 80, of the OKkla-homa Constitution").
T5 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.