J. D. v. State

• Decision Date: 16 December 1976
• Docket Number: J--76--456,Nos. J--76--455,s. J--76--455
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: J. D. and D. R. D., Appellants, v. The STATE of Oklahoma, Appellee.

Page 402

558 P.2d 402

J. D. and D. R. D., Appellants, v. The STATE of Oklahoma, Appellee.

Nos. J--76--455, J--76--456.

Court of Criminal Appeals of Oklahoma.

Dec. 16, 1976.

An appeal from the District Court, Juvenile Division, Tulsa County, Oklahoma, Joe Jennings, Judge.

J. D. and D. R. D., appellants, were convicted of the offense of Second Degree Burglary. D. R. D. was placed in the custody of the Department of Institutions, Social and Rehabilitative Services; and J. D. was placed under court probation. AFFIRMED.

John Dratz, Jr., Asst. Public Defender, Juvenile Division, Tulsa Distrist Court, for appellants.

Carey W. Clark, Asst. Dist. Atty., Juvenile Division, Tulsa District Court, for appellee.

OPINION

BRETT, Presiding Judge:

J. D. and D. R. D., both juveniles, appeal from the orders of the Tulsa County Juvenile Court, which after finding both appellants to be delinquent, remitted D. R. D. to the custody of the Department of Institutions, Social and Rehabilitative Services, and placed J. D. under court probation. These orders were based on a finding by Referee Helen Kannady that the appellants had committed the delinquent act of Second Degree Burglary.

The evidence at the adjudicatory hearing was that on March 3, 1976, the James Hart, Jr., residence was burglarized, entrance being gained by forcing a rear window of the house. The missing items included a Bulova watch, a pocket knife, a locket and some coins. On the same day, Officer Joseph Vandever stopped a car making an illegal right-hand turn, in which the appellants and one John Boyd were passengers and which was being driven by one Buckmaster. Buckmaster got out of the car, handed Vandever his driver's license and was fairly cooperative. Although Vandever saw no furtive movements in the car, he ordered Boyd and the appellants out of the vehicle and patted them down. His frisk produced a locket, a Bulova watch and some coins on the person of D. R. D. Also, Vandever found a pocket knife. Other than talk of the illegal turn, no questions or discussion preceded this frisk of the four boys. Vandever testified he felt that the boys were truant from school, yet he did not know their ages or identities, nor did he make inquiry as to these factors. Although Officer Vandever conceded that legitimate reasons did exist for not being in school, he did not attempt to discover any such excuses. After discovery of the watch, locket and coins, and armed with a report that similar items had been stolen earlier that day, Vandever took D. R. D. into custody for burglary. He also took Buckmaster into custody for the illegal turn, and J. D. and Boyd as children in need of supervision. The boys were taken to the police station and thereafter released to the custody of their parents.

On March 15, 1976, appellant J. D. was contacted at his mother's home by investigator Dan McSlarrow. J. D.'s mother was present and McSlarrow explained J. D.'s Miranda rights to both parties. The appellant and his mother testified that they understood those rights. McSlarrow inquired about the burglary, but J. D. refused to make a statement. On March 17, 1976, at the Juvenile Division, McSlarrow again explained to the appellant and his mother their rights, and both parties stated that they understood those rights. J. D. then signed a statement confessing to the burglary.

On March 16, 1976, McSlarrow visited D. R. D.'s home. McSlarrow explained to appellant and appellant's father their rights, and both D. R. D. and his father said they fully understood those rights. McSlarrow then obtained a written confession from appellant as to the burglary of the Hart residence.

It is appellants' single assignment of error that the search of the defendants' persons was illegal, and that all the evidence subsequently obtained, including the confessions, was tainted with this illegality and therefore inadmissible. The appellants contend that this was a stop and frisk situation, while the State holds it to have been a search incident to an arrest. Under the evidence, we cannot condone this search using either theory.

A 'Terry' type stop and frisk which is permissible for the limited purpose of protecting the officer involved necessarily depends upon the circumstances prior to the search for its justification. Terry v. Ohio, 392...