Beeler v. State
| Decision Date | 16 February 1984 |
| Docket Number | O-82-575,Nos. F-82-574,s. F-82-574 |
| Parties | Jimmy Charles BEELER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Jimmy Charles Beeler, appellant, was convicted in Tulsa County District Court, Case No. CRF-81-3837 of Unlawful Possession of Marijuana, Second Offense; was convicted in Tulsa County District Court, Case No. CRF-81-3852 of Unlawful Possession of Controlled Drug; and suffered revocation of his suspended sentence in Tulsa County District Court, Case No. CRF-78-3402. He was sentenced to three (3) concurrent two (2) year terms of imprisonment. On appeal, the judgment and sentence in Case No. CRF-81-3837, is AFFIRMED; the judgment and sentence in Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.
Case No. CRF-81-3852 is REVERSED and REMANDED; and, the order of revocation in Case No. CRF-78-3402 is AFFIRMED.
Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Marlin Davis, Legal Intern, Oklahoma City, for appellee.
The appellant, Jimmy Charles Beeler, was convicted of Unlawful Possession of a Controlled Drug, and Unlawful Possession of Marijuana, Second Offense, and was sentenced to concurrent two (2) year prison terms. His prior two (2) year suspended sentence for Attempted Grand Larceny was also revoked. On appeal, he contends that the trial court erred in refusing to suppress evidence seized in searches of his person and vehicle. We affirm in part and reverse in part.
During the daylight hours of October 28, 1981, police officers parked just west of a Tulsa residence and walked toward the house to serve a search warrant for narcotics. As they did so, they saw the appellant and three other men, including the owner of the residence, emerge from a door on the west side of the house.
The men did not appear to be armed, but the officers were concerned that they might be carrying drugs out of the residence. Accordingly, they stopped the men, identified and served the warrant upon the owner, then frisked them. Two of the men were released, but appellant was ordered to remove the items from his pockets. He produced an oblong bottle believed to contain Phencyclidine (PCP), and was placed under arrest.
The officers then executed the search warrant for the premises. They searched a pickup truck parked on the front lawn of the residence under authority of a portion of the warrant directing the search of the "house, building and premises, the curtilage and the appurtenances thereunto belonging". A baggie of marijuana was seized from the truck, and, when appellant claimed ownership of the vehicle, he was also placed under arrest for possession of the marijuana.
We conclude that the search of the appellant's person was unlawful. The State offers three justifications for the search. It contends that the search was authorized by the very terms of the warrant. The warrant is set out in pertinent part in the appendix.
As a general rule, search warrants are to be strictly construed, and the "place" to be searched is limited to the "place" described therein. McCormick v. State, 388 P.2d 873 (Okl.Cr.1964). The command in the instant warrant "to make search of said person" clearly relates to the earlier description of persons "ke[eping], possess[ing] and conceal[ing]" controlled substances on the described premises, in other words, "the above named defendant"--i.e., "John Doe"--and "other persons in whose possession he [John Doe] has placed it for the purpose of concealment."
There is no suggestion that appellant is the "John Doe" referred to in the warrant. "John Doe" is described in the search warrant affidavit as "the occupant" of the house. In this case, one of the appellant's companions was determined to be the owner of the house. Consequently, the State's argument depends upon the characterization of appellant as one of the unnamed persons in "possession" of the controlled drugs.
The warrant leaves to the officers the determination of those individuals in possession of illegal substances, and thus subject to search. In reality, it merely directs the performance of a duty arising even in the absence of the command in the warrant, i.e., that in the execution of a search warrant officers should seize persons committing offenses in their presence, and search such persons incident thereto. The real inquiry is whether the defendant was participating in the unlawful activity discovered by the search. See Salmon v. State, 2 Md.App. 513, 235 A.2d 758 (1967). Stated more broadly, the issue under such a warrant is whether the officers had probable cause to believe that the arrestee was committing a misdemeanor in the presence of the officers, or was committing or had committed a felony. See Haley v. State, 7 Md.App. 18, 253 A.2d 424 (1969).
Accordingly, the contention that the search was authorized by the terms of the warrant merges with the State's further contention that the search was incident to an arrest based on probable cause to believe that appellant was committing the crime of possession of controlled substances.
The test of probable cause is
'[W]hether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.'
Dick v. State, 596 P.2d 1265, 1267 (Okl.Cr.1979) [quoting from Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ]. One does not have probable cause unless he has information or facts which, if submitted to a magistrate, would require issuance of an arrest warrant. Mere suspicion is not enough. Dick v. State, supra; Greene v. State, 508 P.2d 1095 (Okl.Cr.1973).
At the time of the search, the officers may be presumed to have known the following: According to the search warrant affidavit, dated the day of the search, the occupant had offered to sell drugs to a confidential informant in the residence within the previous twenty-four hours. A search warrant had issued reciting probable cause to believe that drugs were concealed on or about the residence. As the officers approached the house to serve the warrant, the appellant and three other men, including the owner, exited the residence.
We find that probable cause has not been shown. Where probable cause is the standard, a search or seizure of a person must be supported by probable cause particularized with respect to that person. That requirement may not be undercut by pointing to the coincidental existence of probable cause to search or seize another or to search the premises where the person may happen to be. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979).
Accordingly, the fact that probable cause existed in this case to search the residence and the occupant would not justify the search of appellant, based on his mere presence at the residence and in the company of the owner. Moreover, the assumption that any one on the premises could be involved in drug trafficking, arising from the officers' knowledge that drugs were for sale at the residence, would not be sufficient to justify full scale searches of those present. Id. at 106, 100 S.Ct. at 350 (Rehnquist, J., dissenting).
There was no probable cause to believe that any and all persons at the premises would be involved in the drug traffic. There was no indication that the premises were frequented by drug buyers, nor that anyone had ever been seen purchasing drugs on the premises. Id. at 90, 100 S.Ct. at 341-342. Compare Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101 (1976). In Smith, probable cause was established by, inter alia, an informant's observations of the occupant selling drugs to other persons on the premises, and police surveillance disclosing known drug traffickers entering and leaving the apartment, id. at 106; and observations by police and the informant of such nature and frequency to raise the probability that no one unconnected with the illegal activity was likely to be at the premises. Id. at 107, n. 12.
Persons may visit even suspect premises for valid reasons. There was no probable cause, as versus mere suspicion, to believe that appellant was engaged in drug trafficking at the time of his visit. The State's reliance upon the timing of appellant's departure from the premises, i.e., as the officers approached with the search warrant, is not persuasive. The door chosen was in line of sight as the officers walked toward the house, and there is no indication that the men made any attempt to escape the officers or discard or destroy evidence.
Failing in its warrant and probable cause contentions, the State argues that the officers were acting in good faith, and that we should approve an exception to the exclusionary rule to validate such conduct. We must decline to do so. As recognized by the Supreme Court of our sister state of Colorado, a majority of the United States Supreme Court has not recognized a good faith exception to the exclusionary rule, and it would be inappropriate for a state court to alter established Fourth Amendment doctrine by approving such an exception. People v. Quintero, 657 P.2d 948, 950 (Colo.1983) (one judge dissenting). In addition, given the State's reliance in part on United States v. Williams, 622 F.2d 830 (5th Cir.1980), cert. den., 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114, the remarks of the California Supreme Court are instructive:
The Attorney General calls our attention to the en banc decision of the Fifth Circuit in United States v. Williams (1980) 622 F.2d 830, in which 13 of 24 judges announced in dictum their view that the exclusionary rule should not bar admission of evidence obtained by police officers acting "in good...
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