Joint Appendix — Oklahoma v. Castleberry

(3) DEC 21 1984

No. 83-2126 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE STATE OF OKLAHOMA

Petitioner,

Vv.

TIMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI

Respondents.

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

JO'NT APPENDIX

DAVID W. LEE

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL AND FEDERAL DIVISIONS

112 State Capitol Building

Oklahoma City, Oklahoma 73105

(405) 521-3921

COUNSEL FOR PETITIONER

CHARLES FOSTER COX

Attor at Law

500 N.W. 13th Street

Oklahoma City, OK 73103

(405) 235-7507

COUNSEL FOR RESPONDENTS ‘

PETITION FOR CERTIORARI

FILED JUNE 11, 1984 VW

CERTIORARI GRANTED NOVEMBER 5, 1984 % J

-i-

INDEX

Page

Relevant Docket Entries in CRF-81-

2676, State of Oklahoma v.

Timothy R. Castleberry, Dis-

trict Court, Cklahoma County,

TE @Q6e6eeGGeeecerveec ss

Relevant Docket Entries in CRF-81-

2678, State of Oklahoma v.

Nicholas Raineri and Timothy

R. Castleberry, District Court,

Oklahoma County ....+.++++s++s 2

Relevant Docket Entries in the

Court of Criminal Appeals of

the State of Oklahoma in F-82-

227 and P-82-228. ode 9) ON (a tT ia a 4

Motion to Suppress in CRF-81-2676. ... 5

Motion to Suppress in CRF-81-2678. ... 7?

Judgment and Sentence on Conviction

in CRF-81-2676, State of Oklahoma

v. Timothy R. Castleberry ..... 9

Judgment and Sentence on Conviction

in CRF-81-2678, State of Okla-

homa v. Timothy R. Castleberry,

Count I . > >. . >. > >. >. >. >. >. >. >. >. 1 2

Judgment and Sentence on Conviction

in CRF-81-2678, State of Okla-

homa v. Timothy R. Castleberry,

Count II. >. >. >. > >. 7 >. >. >. >. > > >. 15

-ii-

Judgment and Sentence on Conviction

in CRF-81-2678, State of Okla-

homa v. Nicholas Raineri, Count

I . * * . > > * . . . . > * . .

Judgment and Sentence on Conviction

in CRF-81-2678, State of Okla-

homa v. Nicholas Raineri, Count

II. > . . >. * * . . . . * . .

Opinion of Court of Criminal

Appeals of the State of Okla-

homa, F-82-227 and F-82-228 ..

Order Denying Rehearing, F-82-227

and F-82-228. - BS oe ey Ser Se ae

18

21

24

39

DISTRICT COURT FOR

OKLAHOMA COUNTY, OKLAHOMA

RELEVANT DOCKET ENTRIES

State of Oklahoma v.

Timothy R. Castileberry

Date Description

6-10-81 Information Filed

6-11-81 Arraignment. The Defendant ap-

pears in person and with his attor-

ney, Charles Cox. Bond is set at

$2,000.00.

7-1-81 Preliminary hearing. Defendant

Castleberry represented by Charles

Cox is bound over for trial.

7-2-81 Defendant Castleberry formally

arraigned. Defendant appears repre-

sented by Charles Cox.

8-18-81 Motion to Suppress filed on be-

half of Defendant.

9-23 & 24-81 Jury trial for Defendant

Castleberry. Defendant is represent-

ed at trial by Charles Cox. Defen-

dant Castleberry is found guilty of

the lesser included offense of Pos-

session of Cocaine and the jury set

his punishment at imprisonment for a

term of eight (8) years.

10-16-81 Defendant Castleberry is formal-

ly sentenced as set forth above.

11-3-81 Notice of Appeal filed on behalf

on Defendant Castleberry.

2

DISTRICT COURT FOR

OKLAHOMA COUNTY, OKLAHOMA

RELEVANT eet ENTRIES

State of Oklahoma v. Nicholas Raineri

an . stleberr

Date Description

6-10-81 Information Filed

6-11-81 Arraignment. The Defendants

Castleberry and Raineri appear in

person and with their attorney,

Charles Cox. Bond is set at $4,000

for both.

7-1-81 Preliminary hearing. Defendants

Castleberry and Raineri represented

by Charles Cox and both bound over

for trial.

7-2-81 Defendants Castleberry and Rain-

eri formally arraigned. Defendants

appear represented by Charles Cox.

8-18-81 Motion to Suppress filed on be-

half of Defendants Castleberry and

Raineri.

9-1 & 2-81 Jury trial for Defendants

Castleberry and Raineri. Defendants

are represented at trial by Charles

Cox. Defendant Castleberry is found

guilty of the offense of Possession

of Methaquaalone With Intent to

Distribute in Count I and the jury

set his punishment at imprisonment

for a term of ten (10) years with a

fine of $5,000.00; in Count II the

Defendant Castleberry is found guilty

3

of Possession of Marijuana With

Intent to Distribute and the jury set

his punishment at imprisonment for a

term of seven (7) years and a fine of

$5000.00. Defendant Raineri is found

guilty of the crime of Possession of

Metagquaalone With Intent to Distri-

bute in Count I and the jury set his

punishment at imprisonment for a term

of seven (7) years with a fine of

$5,000.00. In Count II the Defendant

Raineri is found guilty of Possession

of Marijuana With Intent to Distri-

bute and the jury set punishment at

imprisonment for a term of seven (7)

years and a fine of $5000.00.

10-16-81 Defendants Castleberry and

Raineri are formally sentenced as set

forth above, with each sentence on

Count II to run concurrently with

Count I and the fines as to Count II

are suspended.

11-3-81 Notice of Appeal filed on behalf

on Defendants Castleberry and Rain-

eri.

J

RELEVANT DOCKET ENTRIES IN

THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

IN F-82-227 AND F-82-228

5-13-82 Defendant Castleberry's and Rai-

neri's Motion to Consolidate Appeals

in Case Nos. F-82-227 and F-82-228

filed.

7-23-83 Order of Court of Criminal

Appeals granting Defendants' Motion

to Consolidate Appeals.

1-23-83 Opinion of the Oklahoma Court of

Criminal Appeals in consolidated Case

Nos. F-82-227 and F-82-228.

2-13-84 State files Petition for Re-

hearing.

4-5-84 Order Denying Rehearing.

5-9-84 Order Staying Execution of Man-

date.

5

IN THE DISTRICT COURT WITHIN AND FOR

OKLAHOMA COUNTY

STATE OF OKLAHOMA

THE STATE OF OKLAHOMA

Plaintiff,

vs.

No. CRF-81-2676

TIMOTHY R. CASTLEBERRY

ed

Defendant.

MOTION TO SUPPRESS

COMES NOW the defendant above named

and moves this Court to suppress as evi-

dence against him in this case, all evi-

dence, whether tangible or intangible,

obtained as a result of the Defendant's

search or arrest for the reason that the

search of the Defendant and the arrest of

the Defendant was illegal and in violation

of the Defendant's rights under the United

States Constitution and Statutes and Con-

stitution of the State of Oklahoma.

6

/s/ Charles F. Cox

CHARLES F. COX

500 Northwest 13th Street

Oklahoma City, Oklahoma

73103

Telephone: (405) 235-7507

ATTORNEY FOR DEFENDANT

VERIFICATION

STATE OF OKLAHOMA )

) ss

COUNTY OF OKLAHOMA )

I, Charles F. Cox, of lawful age and

having been duly sworn, depose and state

as follows: That I am the attorney for

defendant in the above and foregoing

Motion to Suppress; that I have read said

Motion and am familiar with the contents

thereof; that the statements and facts

contained in said Motion are true and

correct to the best of my information,

knowledge and belief.

/s/Charles F. Cox

Charles F. Cox

Subscribed and sworn to before me

this /s/ 22 day of /s/ July , 1981.

/s/ Linda Campbell

NOTARY PUBLIC

My Commission Expires:

/s/ Aug. 2, 1981

-

I® THE DISTRICT COURT WITHIN AND FOR

OKLAHOMA COUNTY

STATE OF OKLAHOMA

THE STATE OF OKLAHOMA

Plaintiff,

No. CRF-81-2678

vs.

TIMOTHY R. CASTLEBERRY

and NICHOLAS RAINERI

me ee ee ee ee ee ee

Defendants.

MOTION TO SUPPRESS

COMES NOW the defendants above named

and move this Court to suppress as evi-

dence against them in this case, all evi-

dence, whether tangible or intangible,

obtained as a result of the Defendants'

search or arrest for the reason that the

search of the Defendants and the arrest of

the Defendants was illegal and in viola-

tion of the Defendants’ rights under the

United States Constitution and Statutes

and Constitution of the State of Oklahoma.

8

/s/ Charles F. Cox

CHARLES F. COX

500 Northwest 13th Street

Oklahoma City, Oklahoma

73103

Telephone: (405) 235-7507

ATTORNEY FOR DEFENDANT

VERIFICATION

STATE OF OKLAHOMA )

) ss

COUNTY OF OKLAHOMA )

I, Charles F. Cox, of lawful age and

having been duly sworn, depose and state

as follows: That I am the attorney for

defendant in the above and foregoing

Motion to Suppress; that I have read said

Motion and am familiar with the contents

thereof; that the statements and facts

contained in said Motion are true and

correct to the best of my information,

knowledge and belief.

/s/Charles F. Cox

Charles F. Cox

Subscribed and.sworn to before me

this /s/_22 day of /s/ July , 1981.

/s/ Linda Campbell

NOTARY PUBLIC

My Commission Expires:

/s/ Aug. 2, 1981

i)

THE STATE OF OKLAHOMA )

) Ss.

OKLAHOMA COUNTY )

IN THE DISTRICT COURT OF THE

SEVENTH JUDICIAL DISTRICT OF THE

STATE OF OKLAHOMA, SITTING IN AND FOR

OKLAHOMA COUNTY, OKLAHOMA

THE STATE OF OKLAHOMA,

Plaintiff,

-Vs- No. CRF-81-2676

TIMOTHY R. CASTLEBERRY,

mee ee ee ee ee ee ee

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

Now, on this 16th day of October,

1981, the same being a juridical day of

said court, and the time duly appointed

for judgment in the above-entitled cause,

and said cause coming on for judgment, and

the defendant TIMOTHY R. CASTLEBERRY being

personally present in open court, and

being duly represented at all appearances

before the court by his attorney of re-

cord, CHARLES FOSTER COX, and having been

legally charged with the offense of POS-

SESSION OF A CONLROLLED DANGEROUS SUB-

STANCE WITH INTENT TO DISTRIBUTE, TO-WIT:

COCAINE, and having been duly informed of

the nature of the charge and having been

duly arraigned thereon, and having duly

and properly pleaded not guilty to said

offense after having been duly advised of

10

his rights; and having been duly and

legally tried and convicted of the crime

of TO THE INCLUDED OFFENSE OF POSSESSION

OF A CONTROLLED DANGEROUS SUBSTANCE,

TO-WIT: COCAINE, and the defendant having

been asked by the court whether he has any

legal cause to show why judgment and

sentence should not be pronounced against

him, and he stating no sufficient cause to

show why judgment and sentence should not

be pronounced against him, and he stating

ro sufficient cause why judgment and

sentence should not be pronounced against

the defendant, and none appearing to the

court, it is the judgment of the court

that said defendant is guilty of the crime

of TO THE INCLUDED OFFENSE OF POSSESSION

OF A CONTROLLED DANGEROUS SUBSTANCE,

TO-WIT: COCAINE

It is Therefore, Ordered, Adjudged

and Decreed by the Court that TIMOTHY R.

CASTLEBERRY is sentenced to a term of

EIGHT (8) years under the direction and

control of the Department of Corrections

of the State of Oklahoma; and said defen-

dant is committed to the said Department

of Corrections at the Oklahoma State Pen-

itentiary at McAlester, Oklahoma, pursuant

to the Oklahoma Corrections Act of 1967

and pursuant to the rules of said Depart-

ment, for the crime of TO THE INCLUDED

OFFENSE OF POSSESSION OF A CONTROLLED DAN-

GEROUS SUBSTANCE, TO-WIT: COCAINE; said

term of sentence to begin at and from the

delivery of the defendant to the Warden of

the State Penitentiary at McAlester, Ckla-

homa; and that said defendant pay the cost

of this prosecution, taxed at $77.00, for

which judgment is' hereby rendered against

the defendant; and thereupon the defendant

is by the court notified of his riaht of

appeal.

11

It Is Further Ordered, Adjudged and

Decreed by the court that the Sheriff of

Oklahoma County, Oklahoma, transport said

defendant to the said State Penitentiary

at McAlester, Oklahoma, and that the War-

den of said penitentiary detain the said

defendant according to this judgment, sen-

tence and order, and that the clerk of

this court, do immediately certify, under

the seal of the court, and deliver to the

Sheriff of Oklahoma County, Oklahoma, two

copies of this judgment, sentence and

order, one of the copies to accompany the

body of the said defendant to said peni-

tentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary,

said copy to be warrant and authority for

the imprisonment of the said defendant and

the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Okla-

homa, for the transportation and imprison-

ment of the said defendant as hereinbefore

provided. Said last named copy to be re-

turned to the Clerk of said Court with the

proceedings thereunder endorsed thereon.

(Seal)

/s/ Homer Smith

HOMER SMITH,

District Judge

Attest:

DAN GRAY,

~ Court Clerk

By /s/ Kim Williams , Deputy Court Clerk

12

THE STATE OF OKLAHOMA )

) SS.

OKLAHOMA COUNTY )

IN THE DISTRICT COURT OF THE

SEVENTH JUDICIAL DISTRICT OF THE

STATE OF OKLAHOMA, SITTING IN AND FOR

OKLAHOMA COUNTY, OKLAHOMA,

THE STATE OF OKLAHOMA,

Plaintiff,

-vs- No. CRF-81-2678

TIMOTHY R. CASTLEBERRY,

me ee ee ee ee ee

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

Now, on this 16th day of October,

1981, the same being a juridical day of

said court, and the time duly appointed

for judgment in the above-entitled cause,

and said cause coming on for judgment, and

the defendant TIMOTHY R. CASTLEBERRY being

personally present in open court, and

being duly represented at all appearances

before the court by his attorney of re-

cord, CHARLES F. COX, and having been

legally charged with the offense of COUNT

1: POSSESSION OF METHAQUAALONE WITH

INTENT TO DISTRIBUTE, and having been duly

informed of the nature of the charge and

having been duly arraigned thereon, and

having duly and properly pleaded not

guilty to said offense after having been

duly advised of his rights; and having

been duly and legally tried and convicted

13

of the crime of COUNT 1: POSSESSION OF

METHAQUAALONE WITH INTENT TO DISTRIBUTE

and the defendant having been asked by the

court whether he has any legal cause to

show why judgment and sentence should not

be pronounced against him, and he stating

no sufficient cause to show why judgment

and sentence should not be pronounced

against him, and he stating no sufficient

cause why judgment and sentence should not

be pronounced against the defendant, and

none appearing to the court, it is the

judgment of the court that said defendant

is guilty of the crime of COUNT 1: pos-

SESSION OF METHAQUAALONE WITH INTENT TO

DISTRIBUTE

It is Therefore, Ordered, Ad judged

and Decreed by the Court that TIMOTHY R.

CASTLEBERRY is sentenced to a term of TEN

(10) years under the direction and control

of the Department of Corrections of the

State of Oklahoma; and said defendant is

committed to the said Department of Cor-

rections at the Oklahoma State Penitenti-

ary at McAlester, Oklahoma, pursuant to

the Oklahoma Corrections Act of 1967 and

pursuant to the rules of said Department,

for the crime of COUNT 1: POSSESSION OF

METHAQUAALONE WITH INTENT TO DISTRIBUTE;

said term of sentence to begin at and from

the delivery of the defendant to the

Warden of the State Penitentiary at McAl-

ester, Oklahoma; and that said defendant

pay the cost of this prosecution, taxed at

$45.76, for which judgment is hereby

rendered against the defendant; and there-

upon the defendant is by the court noti-

fied of his right of appeal.

14

It Is Further Ordered, Adjudged and

Decreed by the court that the Sheriff of

Oklahoma County, Oklahoma, transport said

defendant to the said State Penitentiary

at McAlester, Oklahoma, and that the War-

den of said penitentiary detain the said

defendant according to this judgment, sen-

tence and order, and that the clerk of

this court, do immediately certify, under

the seal of the court, and deliver to the

Sheriff of Oklahoma County, Oklahoma, two

copies of this judgment, sentence and

order, one of the copies to accompany the

body of the said defendant to said peni-

tentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary,

said copy to be warrant and authority for

the imprisonment of the said defendant and

the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Okla-

homa, for the transportation and imprison-

ment of the said defendant as hereinbefore

provided. Said last named copy to be re-

turned to the Clerk of said Court with the

proceedings thereunder endorsed thereon.

(Seal)

(DEFENDANT TO PAY A FINE OF $5,000.00)

/s/ CHARLES L. OWENS

CHARLES L. OWENS, District Judge

Attest:

DAN GRAY, _

Court Clerk

By /s/ Mary Evelyn Moncrief, Deputy Court

Clerk

15

THE STATE OF OKLAHOMA )

) Ss.

OKLAHOMA COUNTY )

IN THE DISTRICT COURT OF THE

SEVENTH JUDICIAL DISTRICT OF THE

STATE OF OKLAHOMA, SITTING IN AND FOR

OKLAHOMA COUNTY, OKLAHOMA.

THE STATE OF OKLAHOMA,

Plaintiff,

-vVs- No. CRF-81-2678

TIMOTHY R. CASTLEBERRY,

ee ee ee ee ee ee ee

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

Now, on this 16th day of October,

1981, the same being a juridical day of

said court, and the time duly appointed

for judgment in the above-entitled cause,

and said cause coming on for judgment, and

the defendant TIMOTHY R. CASTLEBERRY being

personally present in open court, and

being duly represented at all appearances

kefore the court by his attorney of re-

cord, CHARLES F. COX, and having been

legally charged with the offense of COUNT

2: POSSESSION OF MARIHUANA WITH INTENT TO

DISTRIBUTE, and having been duly informed

of the nature of the charge and having

been duly arraigned thereon, and having

duly and properly pleaded not guilty to

said offense after having been duly ad-

vised of his rights; and having been duly

16

and legally tried and convicted of the

crime of COUNT 2: POSSESSION OF MARIHUANA

WITH INTENT TO DISTRIBUTE and the cefen-

dant having been asked by the court whe-

ther he has any legal cause to show why

judgment and sentence should not be pro-

nounced against him, and he stating no

sufficient cause to show why judgment and

sentence should not be pronounced against

him, and he stating no sufficient cause

why judgment and sentence should not be

pronounced against the defendant, and none

appearing to the court, it is the judgment

of the court that said defendant is guilty

of the crime of COUNT 2: POSSESSION OF

MARIHUANA WITH INTENT TO DISTRIBUTE

It is Therefore, Ordered, Adjudged

and Decreed by the Court that TIMOTHY R.

CASTLEBERRY is sentenced to a term of

SEVEN (7) years under the direction and

control of the Department of Corrections

of the State of Oklahoma; and said defen-

dant is committed to the said Department

of Corrections at the Oklahoma State Pen-

itentiary at McAlester, Oklahoma, pur-

suant to the Oklahoma Corrections Act of

1967 and pursuant to the rules of said

Department, for the crime of COUNT 2:

POSSESSION OF MARIHUANA WITH INTENT TO

DISTRIBUTE; said term of sentence to begin

at and from the delivery of the defendant

to the Warden of the State Penitentiary at

McAlester, Oklahoma; and that said defen-

dant pay the cost of this prosecution,

taxed at $45.75, for which judgment is

hereby rendered against the defendant; and

thereupon the defendant is by the court

notified of his right of appeal.

17

It Is Further Ordered, Adjudged and

Decreed by the court that the Sheriff of

Oklahoma County, Oklahoma, transport said

defendant to the said State Penitentiary

at McAlester, Oklahoma, and that the War-

den of said penitentiary detain the said

defendant according to this judgment, sen-

tence and order, and that the clerk of

this court, do immediately certify, under

the seal of the court, and deliver to the

Sheriff of Oklahoma County, Oklahoma, two

copies of this judgment, se-tence and

order, one of the copies to accompany the

body of the said defendant to said peni-

tentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary,

said copy to be warrant and authority for

the imprisonment of the said defendant and

the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Okla-

homa, for the transportation and imprison-

ment of the said defendant as hereinbefore

provided. Said last named copy to be re-

turned to the Clerk of said Court with the

proceedings thereunder endorsed thereon.

(Seal) (THIS COUNT 2 TO RUN CONCURRENTLY

WITH COUNT 1)

/s/ CHARLES L. OWENS

CHARLES L. OWENS, District Judge

Attest:

DAN GRAY,

Court Clerk

By /s/ Mary Evelyn Moncrief, Deputy Court

Clerk

18

THE STATE OF OKLAHOMA )

) ss.

OKLAHOMA COUNTY )

IN THE DISTRICT COURT OF THE

SEVENTH JUDICIAL DISTRICT OF THE

STATE OF OKLAHOMA, SITTING IN AND FOR

OKLAHOMA COUNTY, OKLAHOMA.

THE STATE OF OKLAHOMA,

Plaintiff,

)

)

-vVs- ) No. CRF-81-2678

)

NICHOLAS RAINERI, )

)

)

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

Now, on this 16th day of October,

1981, the same being a juridical day of

said court, and the time duly appointed

for judgment in the above-entitled cause,

and said cause coming on for judgment, and

the defendant NICHOLAS RAINERI being per-

sonally present in open court, and being

duly represented at all appearances before

the court by his attorney of record,

CHARLES F. COX, and having been legally

charged with the offense of COUNT 13:

POSSESSION OF METHAQUAALONE WITH INTENT TO

DISTRIBUTE, and having been duly informed

of the nature of the charge and having

been duly arraigned thereon, and having

duly and properly pleaded not guilty to

said offense after having been duly ad-

vised of his rights; and having been duly

and legally tried and convicted of the

19

crime of COUNT 13: POSSESSION OF METH-

AQUAALONE WITH INTENT TO DISTRIBUTE and

the defendant having been asked by the

court whether he has any legal cause to

show why judgment and sentence should not

be pronounced against him, and he stating

no sufficient cause to show why judaqment

and sentence should not be pronounced

against him, and he stating no sufficient

cause why judgment and sentence should not

be pronounced against the defendant, and

none appearing to the court, it is the

judgment of the court that said defendant

is guilty of the crime of COUNT 1: POS-

SESSION OF METHAQUAALONE WITH INTENT TO

DISTRIBUTE

It is Therefore, Ordered, Adjudged

and Decreed by the Court that NICHOLAS

RAINERI is sentenced to a term of nine (9)

years under the direction and control of

the Department of Corrections of the State

of Oklahoma; and said defendant is commit-

ted to the said Department of Corrections

at the Oklahoma State Penitentiary at

McAlester, Oklahoma, pursuant to the

Oklahoma Corrections Act of 1967 and

pursuant to the rules of said Department,

for the crime of COUNT 1: POSSESSION OF

METHAQUAALCNE WITH INTENT TO DISTRIBUTE;

said term of sentence to begin at and from

the delivery of the defendant to the

Warden of the State Penitentiary at McAl-

ester, Oklahoma; and that said defendant

pay the cost of this prosecution, taxed at

$45.76, for which judgment is hereby

rendered against the defendant; and there-

upon the defendant is by the court noti-

fied of his right of appeal.

20

It Is Further Ordered, Adjudged and

Decreed by the court that the Sheriff of

Oklahoma County, Oklahoma, transport said

defendant to the said State Penitentiary

at McAlester, Oklahoma, and that the War-

den of said penitentiary detain the said

defendant according to this judgment, sen-

tence and order, and that the clerk of

this court, do immediately certify, under

the seal of the court, and deliver to the

Sheriff of Oklahoma County, Oklahoma, two

copies of this judgment, sentence and

order, one of the copies to accompany the

body of the said defendant to said peni-

tentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary,

said copy to be warrant and authority for

the imprisonment of the said defendant and

the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Okla-

homa, for the transportation and imprison-

ment of the said defendant as hereinbefore

provided. Said last named copy to be re-

turned to the Clerk of said Court with the

proceedings thereunder endorsed thereon.

(Seal)

(DEFENDANT TO PAY A FINE OF $5,000.00)

/s/ CHARLES L. OWENS

CHARLES L. OWENS, District Judge

Attest:

DAN GRAY,

Court Clerk

By /s/ Mary Evelyn Moncrief, Deputy Court

Clerk

21

THE STATE OF OKLAHOMA )

) ss.

OKLAHOMA COUNTY )

IN THE DISTRICT COURT OF THE

SEVENTH JUDICIAL DISTRICT OF THE

STATE OF OKLAHOMA, SITTING IN AND FOR

OKLAHOMA COUNTY, OKLAHOMA.

THE STATE OF OKLAHOMA,

Plaintiff,

)

)

)

)

-vVs- ) No. CRF-81-2678

)

NICHOLAS RAINERI, )

)

)

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

Now, on this 16th day of October,

1981, the same being a juridical day of

said court, and the time duly appointed

for judgment in the above-entitled cause,

and said cause coming on for judgment, and

the defendant NICHOLAS RAINERI being per-

sonally present in open court, and being

duly represented at all appearances before

the court by his attorney of record,

CHARLES F. COX, and having been legally

charged with the offense of COUNT 2:

POSSESSICN OF MARIHUANA WITH INTENT TO

DISTRIBUTE, and having been duly informed

of the nature of the charge and having

been duly arraigned thereon, and having

duly and properly pleaded not guilty to

said offense after having been duly ad-

vised of his rights; and having been duly

and legally tried and convicted of the

22

crime of COUNT 2: POSSESSION OF MARIHUANA

WITH INTENT TO DISTRIBUTE and the defen-

dant having been asked by the court whe-

ther he has any legal cause to show why

judgment and sentence should not be pro-

nounced against him, and he stating no

sufficient cause to show why judgment and

sentence should not be pronounced against

him, and he stating no sufficient cause

why judgment and sentence should not be

pronounced against the defendant, and none

appearing to the court, it is the judgment

of the court that said defendant is guilty

of the crime of COUNT 2: POSSESSION OF

MARIHUANA WITH INTENT TO DISTRIBUTE

It is Therefore, Ordered, Adjudged

and Decreed by the Court that NICHOLAS

RAINERI is sentenced to a term of SEVEN

(7) years under the direction and control

of the Department of Corrections of the

State of Oklahoma; and said defendant is

committed to the said Department of Cor-

rections at the Cklahoma State Peniten-

tiary at McAlester, Oklahoma, pursuant to

the Oklahoma Corrections Act of 1967 and

pursuant to the rules of said Department,

for the crime of COUNT 2: POSSESSION OF

MARIHUANA WITH INTENT TO DISTRIBUTE; said

term of sentence to begin at and from the

delivery of the defendant to the Warden of

the State Penitentiary at McAlester, Okla-

homa; and that said defendant pay the cost

of this prosecution, taxed at $45.75, for

which judgment is hereby rendered against

the defendant; and thereupon the defendant

is by the court notified of his right of

appeal.

23

It Is Further Ordered, Adjudged and

Decreed by the court that the Sheriff of

Oklahoma County, Oklahoma, transport said

defendant to the said State Penitentiary

at McAlester, Oklahoma, and that the War-

den of said penitentiary detain the said

defendant according to this judgment, sen-

tence and order, and that the clerk of

this court, do immediately certify, under

the seal of the court, and deliver to the

Sheriff of Oklahoma County, Oklahoma, two

copies of this judgment, sentence and

order, one of the copies to accompany the

body of the said defendant to said peni-

tentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary,

said copy to be warrant and authority for

the imprisonment of the said defendant and

the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Okla-

homa, for the transportation and imprison-

ment of the said defendant as hereinbefore

provided. Said last named copy to be re-

turned to the Clerk of said Court with the

proceedings thereunder endorsed thereon.

(Seal) (THIS COUNT 2 TO RUN CONCURRENTLY

WITH COUNT 1)

/s/ CHARLES L. OWENS

CHARLES L. OWENS, District Judge

Attest:

DAN GRAY, _ a

Court Clerk

By /s/ Mary Evelyn Moncrief , Deputy Court

Clerk

24

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

No. F-82-227

No. F-82-228

TOMOTHY R. CASTLEBERRY

and

NICHOLAS RAINERI

Appellants,

Vv.

THE STATE OF OKLAHOMA,

Appellee.

[Filed January 23, 1984]

OPINION

BRETT, Judge:

Timothy R. Castleberry and Nicholas

Raineri, appellants, were charged with

two (2) counts each of Possession of a

Controlled Dangerous Substance with Intent

to Distribute in the District Court of

Oklahoma County, Case No. CRF-81-2678.

The jury found the appellants guilty on

both counts, and assessed punishment for

25

Raineri at nine (9) years' imprisonment

and a fine of five thousand dollars

($5,000) for Count 1 and seven (7) years'

imprisonment plus a five thousand dollar

($5,000) fine for Count 2; and, for Cas-

tleberry, ten (10) years' imprisonment

plus a fine of five thousand dollars

($5,000) for Count 1 and seven (7) years'

imprisonment plus a five thousand dollar

($5,000) fine for Count 2. The trial

court sentenced the appellants according-

ly, additionally ordering the sentences to

run concurrently and suspending the fine

for Count 2 as to both appellants.

Appellant Castleberry was separately

convicted of Possession of a Controlled

Dangerous Substance, Cocaine, in Case

No. CRF-82-2676 in the Oklahoma County

District Court. The trial court sen-

tenced him to eight (8) years' impri-

sonment. The appeals from the judgments

26

and sentences are consolidated since the

same factual circumstances are involved in

each case.

At approximately noontime on June 9,

1981, Oklahoma City Police Officer R.D.

Taylor received a telephone call from a

previously unknown confidential informant

who told him that two men, one named

Castleberry, were staying in Room 113 of a

motel in Oklahoma City, driving a blue

Thunderbird with Florida license plates

and carrying various narcotics in blue

Suitcases. The informant also gave phy-

sical descriptions of the men to the

officer.

Officer Taylor proceeded immediately

to the location, observed a vehicle

matching the informant's description in

front of the specified room, and dis-

covered, from the motel clerk, that a

man named Castleberry was registered in

27

that room. He then returned to his car,

positioned some five parking spaces from

the other vehicle, and waited for back-

up assistance to arrive. After several

minutes, Officer Taylor observed’ the

appellants emerge from the room and put

several suitcases that matched the

informant's description into the trunk

of the car. At this point, Officer

Taylor announced himself as a police

officer, approached the car with his

badge in one hand and his weapon in the

other, and told the appellants to place

their hands on the car. Raineri did as

ordered, but Castleberry hastily closed

the trunk lid and threw a small white

object into the car. During a struggle

which ensued between Officer Taylor and

Castleberry, Castleberry reached up,

locked the car door and shut it.

28

At this point, Officer Citty ar-

rived and opened the trunk of the car

with keys Officer Taylor had removed

from the door of the car. The officers

opened the suitcases, found narcotics

and placed the appellants under arrest.

Officer Citty then searched the interior

of the car and discovered a white Band-

Aid box which contained a_ substance

later determined to be cocaine.

Appellants’ sole assignment of error

is that the trial court erred in overrul-

ing their motion to suppress, thereby

admitting evidence obtained as a result of

an unlawful arrest, search and seizure.

The Fourth Amendment of our federal con-

stitution prohibits unreasonable searches

and seizures. Searches conducted outside

the judicial process, without prior appro-

val by judge or magistrate, are per se

unreasonable under the Fourth Amendment,

29

subject only to a few specifically estab-

lished and well-delineated exceptions.

Katz v. United States, 389 U.S. 347, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967).

The exceptions are jealously and

carefully drawn, and there must be a show-

ing by those who seek exemption that the

exingencies [sic] of the situation made

that course imperative. Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29

L.Ed.2d 564 (1971). Thus, it is incumbent

on the State to show why the warrantless

search of the car and its contents was

permissible in the case at bar.

The State first contends that the

search was lawful as incident to a lawful

arrest. Appellants challenge both the

legality of the arrest and the scope of

the search.

Although Officer Taylor testified

that he did not arrest the appellants un-

30

til after the suitcases were opened, the

appellants were not free to move after the

officer advanced toward them with revolver

drawn and ordered them to place their

hands on the car. This Court has held

that when an officer restrains the indi-

vidual's freedom of movement, that person

is under arrest. Wallace v. State, 620

P.2d 410 (Ok1.Cr. 1980), Castellano v.

State, 585 P.2d 361 (Okl.Cr. 1978). Under

the circumstances, the appellants in the

present case were under arrest from the

moment Officer Taylor approached them and

announced his identity.

Appellants submit that the arrest was

unlawful because Officer Taylor did not at

that time have probable cause to make it.

The Oklahoma statutes allow a warrantless

arrest if the officer has reasonable cause

to believe a felony has been committed by

the person arrested. 22 0.S.1981, § 196.

31

If at the time of arrest the facts and

circumstances within the arresting offi-

cer's knowledge and of which he had rea-

sonably trustworthy information were

sufficient to warrant a prudent man in

believing that an offense had been or was

being committed, probable cause is estab-

lished and the arrest is lawful. Beck v.

Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.

2d 142 (1964), Greene v. State, 508 P.2d

1095 (Okl.Cr. 1973).

In this case, appellants argue that

the officer had no basis for judging his

informant to be reliable or the informa-

tion trustworthy. We disagree. In

Grimes v. State, 528 P.2d 1397 (Ok1.Cr.

1974), this Court stated that an infor-

mant's trustworthiness could be estab-

lished if independent facts within the

officer's knowledge corroborated the

information. Here, the information was

32

sufficiently corroborated as the only

detail not confirmed before the arrest was

the presence of narcotics in the wit-

cases, an allegation Officer Taylor could

not lawfully verify before the arrest

under the given circumstances.

The search made subsequent to the

arrest, however, cannot be justified as a

search incident to a lawful arrest, for it

far exceeded the permissible bounds of

such a search, that is, the area within

the arrestee's immediate control from

which he might gain possession of a weapon

or destructible evidence. See Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034,

23 L.Ed.2d 685 (1969). Both appellants

were restrained--one was handcuffed, the

other was on the ground with an officer

pointing a gun at him--at the time of the

search. The car doors anc trunk were

locked, so once the officer gained posses-

33

sion of the keys, there was no danger of

appellants’ procuring a weapon or destroy-

ing evidence from the interior of the car.

A search incident to the arrest would

therefore justify neither a search of the

locked car nor a search of the suitcases

therein.

The State's only other justification

offered is that the warrantless search was

lawful because the officers had probable

cause to believe that narcotics were in

the s"itcases and exigent circumstances

required prompt action. The so-called

automobile exception on which the State

relies was first recognized in Carroll v.

United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925). Cases subsequent to

Carroll caused some confusion about when

containers in cars may be searched, but

the Supreme Court clarified the law in

34

United States v. Ross, 456 U.S. 798, 102

S.Ct. 2157, 72 L.Ed.2d 572 (1982).

If the officer has probable cause to

believe there is contraband somewhere in

the car, but he does not know exactly

where, he may search the entire car as

well as any containers found therein. See

United States v. Ross, 456 U.S. 798, 102

S.Ct. 2157, 72 L.Ed.2d 572 (1982); Cham-

bers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419 (1970); Carroll v.

United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925). If, on the other

hand, the officer only has probable cause

to believe there is contraband in a speci-

fic container in the car, he must detain

the container and delay his search until

a search wariant is obtained. See United

States v. Ross, 456 U.S. 798, 102 S.Ct.

2157, 72 L.Ed.2d 572 (1982); Arkansas v.

Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61

35

L.Ed.2d 235 (1979); United States v. Chad-

wick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.

2d 538 (1977).

The Ross court adopted Chief Justice

Burger's distinction set out in his con-

curring opinion to Arkansas v. Sanders,

442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d

235 (1979), wherein he explained that:

{I]t was the luggage being trans-

ported by respondent at the time of

the arrest, not the automobile in

which it was being carried, that was

the suspected locus of the contra-

band. The relationship between the

automobile and tine contraband was

purely coincidental, as in Chadwick.

The fact that the suitcase was

resting in the trunk of the automo-

bile at the time of respondent's

arrest does not turn this into an

‘automobile’ exception case. The

Court need say no more. (Citations

omitted). Id., at 766-767, 99 S.Ct.

at 2594.

United States v. Ross, 456 U.S. at 813,

102 S.Ct. at 2166-67, 72 L.Ed.2d at 586-

87.

The case at bar clearly falls within

the Chadwick - Sanders line of cases. The

36

suspected locations of the contraband were

the suitcases and the Band-Aid box which

Castleberry threw into the car. Accord-

ingly, we hold that the motion to suppress

was erroneously overruled. The officers

should have detained the containers until

a search warrant had been obtained.

We are not dealing with formalities.

The presence of a search warrant

serves a high function. Absent

some grave emergency, the Fourth

Amendment has interposed a magis-

trate between the citizen and the

police. This was done not to shield

criminals nor to make the home a

safe haven for illegal activities.

It was done so that an objective

mind might weigh the need to invade

that privacy in order to enforce the

law. The right of privacy was

deemed too precious to entrust to

the discretion of those whose job is

the detection of crime and the

arrest of criminals. Power is a

heady thing; and history shows that

the police acting on their own

cannot be trusted. And so the

Constitution requires a magistrate

to pass on the desires of the police

before they violate the privacy of

the home. We cannot be true to that

constitutional requirement and

excuse the absence of ae search

warrant without a showing by those

37

who seek exemption from the consti-

tutional mandate that the exigencies

of the situation made that course

imperative.

McDonald v. United States, 335 U.S. 451,

445-456, 69 S.Ct. 191, 193, 93 L.Ed. 153

(1948).

For the reasons herein stated, the

judgments and sentences appealed from

should be, and the same are hereby, RE-

VERSED.

CORNISH, J., specially concurs.

BUSSEY, P.J., dissents.

CORNISH, Judge, specially concurring.

I fully concur in Judge Brett's

analysis and application of the Supreme

Court's precedents in this case. I would

simply note that it has been settled in

this State for several years that probable

cause will not support a warrantless

search in the absence of an emergency,

i.e., “exigent circumstances":

38

{I]t is without question that the

existence of probable cause alone

will not satisfy a warrantless

search, Chambers v. Maroney, 399

U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419 (1970); Whitehead v. State, 546

P.2d 273 (OkI.Cr.1975;. Ordinarily,

if an officer has probable cause to

make a search, then he should go to

a magistrate for a warrant authori-

zing such a search. Only when there

are ‘exigent circumstances’ in addi-

tion to the existence of probable

cause may ar. officer legitimately

make a search without a warrant.

Blackburn v. State, 575 P.2d 638, 642

(Ok1.Cr. 1978).

Absent probable cause to search the

entire car, the officers were only author-

ized to seize the suspect containers and

hold them pending issuance of a search

warrant. Although probable cause existed

with regard to the containers, no exigent

circumstances were shown such as to just-

ify a warrantless search.

39

IN THE COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

TIMOTHY R. CASTLEBERRY and )

NICHOLAS RAINERI, )

)

Appellants, )

)

-Vvs- ) Case No.

) F-8 2-227

THE STATE OF OKLAHOMA, ) F-82-228

)

Appellee. )

ORDER DENYING REHEARING

In an Opinion dated January 23, 1984,

this Court reversed the convictions for

drug offenses in Oklahoma County Case Nos.

CRF-82-2676 and CRF-82-2678. On February

13, 1984, the State filed a petition re-

questing this Court to grant a rehearing.

NOW THEREFORE, after considering the

petition and reviewing the record, this

Court finds that the petition for rehear-

ing should be, and the same is, DENIED.

The mandate shall issue forthwith.

40

WITNESS OUR HANDS AND THE SEAL OF

THIS COURT this /s/_ 5th day of /s/April,

1984.

/s/Hez.

J. Busse

. , ng ge

/s/Tom Brett

, Judge

ATTEST:

/s/Susan Hampton, Deputy

Clerk