507 P.2d 1252 (Okla.Crim.App. 1973), A--16776, Bennett v. State

• Docket Number: A--16776.
• Citation: 507 P.2d 1252
• Date: 13 March 1973
• Parties: Michael Jay BENNETT and Lawrence Robert Travis, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1252

507 P.2d 1252 (Okla.Crim.App. 1973)

Michael Jay BENNETT and Lawrence Robert Travis, Appellants,

v.

The STATE of Oklahoma, Appellee.

No. A--16776.

Court of Criminal Appeals of Oklahoma.

March 13, 1973.

Page 1253

Eric J. Groves, Oklahoma City, for appellants.

Larry Derryberry, Atty. Gen., and Ray Naifeh, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge:

Appellants, Michael Jay Bennett and Lawrence Robert Travis, hereinafter referred to as defendants, were charged, tried and convicted by jury in the District Court of Oklahoma County, Case No. CRF--70--2984, for the offense of Possession of Marijuana, a Felony. Defendants were sentenced to three (3) years and five (5) years respectively in the State Penitentiary at McAlester. From said judgment and sentences, defendants have made a timely appeal to this Court.

On the evening of October 12, 1970, Officers Colbert and Andrews of the Oklahoma City Police Department witnessed a late model Chevrolet make an improper lane change. The officers pursued and stopped the vehicle. Co-defendant Bennett, driver of the automobile, stepped from the vehicle and was requested by the officers to join them at the rear of the vehicle. Co-defendant Bennett was informed that he had committed a traffic violation and was asked for identification and was questioned as to the ownership of the automobile. Officer Andrews went to the passenger side of the automobile and requested the other occupant, co-defendant Travis, to step to the rear of the vehicle with the officers.

At this point, the officers began to make a frisk or pat-down search of the defendants. When Officer Andrews attempted to pat-down co-defendant Travis, Travis hit the officer's arm and informed the officer that he would not allow the officer to search him unless he was under arrest. Officer Andrews placed co-defendant Travis under arrest for interfering with a police officer and co-defendant Bennett was arrested on his traffic violation. The officers summoned the help of a cruiser to transport the defendants to the police station and about this time, Officer Andrews began an inventory search of the automobile.

At the preliminary hearing, Officer Colbert testified that the frisk or pat-down search of the defendants was to determine whether they were carrying any weapons with which they might use to flee or avoid arrest and that the officers had the right to search the immediate area of the defendants for weapons. It was Officer Colbert's statement at preliminary hearing that he did not know why Officer Andrews was searching the car, but thought that he might be searching the car for weapons.

At trial, Officer Andrews testified that he was making an inventory search of the automobile which was required for all automobiles which are being impounded.

Page 1254

The officer did not check any items in the truck, but did find a small plastic bag of a green leafy substance which he supposed to be marijuana under the carpet on the passenger's side of the automobile. Officer Andrews continued his search of the automobile and found a small tin in the glove compartment of the automobile which contained several partially smoked cigarettes and a residue of a leafy substance which he also suspected to be marijuana. The green leafy substance and tin were taken from the automobile and later placed in evidence envelopes at police headquarters. Defendants Bennett and Travis were thereafter booked on the charge of possession of marijuana.

Defendants' first and second propositions of error alleges that the examining magistrate and the trial court improperly overruled the defendants' motion to suppress evidence unreasonably seized. These two propositions will be discussed together. Defendants cite a number of cases for authority in support of their propositions of error; only those of relevance to this particular case will be discussed. Of...