699 P.2d 653 (Okla.Crim.App. 1985), F-83-198, Cooks v. State

Docket Nº:F-83-198.
Citation:699 P.2d 653
Party Name:Cornel COOKS, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:April 26, 1985
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 653

699 P.2d 653 (Okla.Crim.App. 1985)

Cornel COOKS, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-83-198.

Court of Criminal Appeals of Oklahoma.

April 26, 1985.

Rehearing Denied May 29, 1985.

Page 654

[Copyrighted Material Omitted]

Page 655

Stephen Louis Hilliary, Lawton, for appellant.

Michael C. Turpen, Atty. Gen., Thomas L. Spencer, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge.

The appellant, CORNEL COOKS, was convicted of Murder in the First Degree pursuant to 21 O.S.1981, § 701.7(B) in the Comanche County District Court, Case No. CRF-82-812. Appellant was tried by a jury along with co-defendant Rodney Madson Masters, a/k/a William Wallace Troxell, before the Honorable William M. Roberts, District Judge. The jury found the appellant guilty of Murder in the First Degree and recommended a sentence of death. The trial court entered judgment and sentence in accord with the jury verdict. We affirm.

Page 656

Jennie Ridling, a disabled eighty-seven-year-old woman, lived in a mobile home next door to her daughter in Lawton, Oklahoma. Her lifeless body was discovered by a neighbor on October 28, 1982. It was determined by police that her mobile home had been ransacked. Evidence further revealed that she had been raped and beaten about the head. She suffocated to death due to a tightly wrapped piece of gauze-like cloth around her head. According to the medical examiner, Ms. Ridling suffered nearly two hours before she died.

Beginning at approximately 8:30 p.m. on October 28, 1982, Lawton police investigated the crime scene and collected evidence. Evidence revealed one of the perpetrators apparently injured himself, as there was blood on and near the suspected point of entry. After gathering information and evidence at the crime scene, Lawton police detectives began questioning neighbors in the surrounding area. Following information received through their investigation, two detectives went to the appellant's residence, a few houses down the street. As they approached the house, one detective looked in a trash can in the appellant's front yard and found a bloody sock, which was confiscated for evidence. They then obtained a search waiver for the appellant's house from his common-law wife. At 5:15 a.m. on October 29th, the appellant arrived at the residence and was arrested, given his Miranda warnings, and taken to the police station for questioning. An officer returned to his residence and obtained, from appellant's common-law wife, permission to search her automobile, which appellant had driven just prior to his arrest. The officers recovered items later identified as the victim's. One item from the trunk was Jennie Ridling's checkbook.

The appellant denied knowledge of the burglary and the homicide. He later requested an attorney, and was advised by Officer Belcher that the officer could not speak with him any further unless the appellant requested officers to do so. On October 30, 1982 at approximately 5:00 p.m., Belcher was summoned to the county jail by the appellant. The appellant was read his Miranda rights again, and signed a "rights waiver" form. The appellant gave statements which were later introduced at trial.

I.

In appellant's first assignment of error, it is asserted the trial court erred in admitting evidence of the bloody sock. Appellant claims this evidence was improperly seized by police in violation of his rights under the U.S. Const. amend. IV, and the Okla. Const. art. 2, § 30.

The appellant asserts that this "trash can search" was conducted without probable cause, and was unlawful, citing People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969); and People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed on remand, 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457, cert. den. 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973). These cases hold that a defendant maintains a reasonable expectation of privacy in curbside trash, and therefore a search of the same without probable cause is unlawful.

We disagree with our California brethren. We have generally held that one who abandons property has no standing to object to a search. See Menefee v. State, 640 P.2d 1381 (Okl.Cr.1983). See also United States v. Jackson, 544 F.2d 407 (9th Cir.1976). We join those other jurisdictions holding curbside trash is abandoned property, over which appellant has no reasonable expectation of privacy. United States v. Reicherter, 647 F.2d 397 (3rd Cir.1981); United States v. Dzialak, 441 F.2d 212 (2nd Cir.1971); State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972); Croker v. State, 477 P.2d 122 (Wyo.1970); State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968); Smith v. State, 510 P.2d 793 (Alk.1973), cert. den., 414 U.S. 1086, 94 S.Ct. 603, 38 L.Ed.2d 489; People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d 76 (1976); and People v. Whotte, 113 Mich.App. 12, 317 N.W.2d 266 (1982).

Page 657

II.

It is necessary to combine appellant's second and third propositions of error to adequately address the issues raised therein. The appellant first asserts he was illegally arrested, and claims the officers were acting without probable cause in making the arrest. He next asserts the confessions should have been suppressed as fruits of the purportedly illegal arrest.

A careful review of the record of this case leads this Court to the conclusion that the officers were following police procedures and investigatory patterns in an effort to obtain evidence in the hopes of locating the perpetrator of this crime. Their actions, although solid police work, did not, however, meet the burden of establishing probable cause. The arrest was, in fact, based on mere suspicion.

The test for determining the lawfulness of an arrest has been stated several times by this Court. It is, whether at the moment the arrest was made, facts and circumstances within the arresting officer's knowledge, and of which he had reasonably trustworthy information, were sufficient to warrant a prudent man to believe the arrestee had committed, or was committing, a crime. Pitts v. State, 649 P.2d 788 (Okl.Cr.1982); Lee v. State, 637 P.2d 879 (Okl.Cr.1982); Backus v. State, 635 P.2d 1021 (Okl.Cr.1981); and Swain v. State, 621 P.2d 1181 (Okl.Cr.1980). At the preliminary hearing, one of the officers testified that, indeed, he was acting only upon suspicion. Mere suspicion is not constitutionally sufficient basis for an arrest. Greene v. State, 508 P.2d 1095 (Okl.Cr.1973). Therefore, we find the arrest to be without probable cause, and thus, illegal.

This determination does not end our inquiry, however. We next must determine whether the confession was purged of the taint of the illegal arrest. The United States Supreme Court has indicated the proper procedure in determining this particular issue. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Court discussed the several factors considered to determine when a confession is "sufficiently an act of free will to purge the primary taint of an illegal arrest." See also Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). First, the Supreme Court stressed the threshold test of voluntariness. The Court then cited several factors to consider in determining whether the taint of the unlawful arrest has been dissipated:

1. The giving of Miranda warnings;

2. The "temporal proximity" of the arrest and confessions;

3. The presence of "intervening circumstances"; and

4. The "purpose and flagrancy of the official misconduct."

Applying these factors to the case at bar, it is clear the primary taint was, in fact, purged, and the confessions were properly admitted into evidence.

The record reveals the appellant received adequate Miranda warnings on more than one occasion prior to giving his statements. The arrest took place at approximately 5:15 a.m. on the October 29, 1982, and the appellant made his first statement nearly two days later. The length of time from the arrest to the confessions is sufficient to dissipate the coercive nature of incarceration. In fact, after he evoked his Miranda warning, he asked to speak to a particular officer before ultimately giving his statements. See United States v. Manuel, 706 F.2d 908 (9th Cir.1983).

It is abundantly clear the appellant freely and voluntarily gave the confessions of which he now complains. It is also apparent he freely and voluntarily signed a rights waiver form, and that he understood his rights as communicated to him by the arresting officers. The officers were most solicitious of the appellant's request, and carefully followed the proper procedures in obtaining appellant's confessions. There is absolutely no competent evidence the appellant was coerced or forced to sign the confessions. The officers were not acting flagrantly with the design to arrest appellant without probable cause for the purpose of prying a confession from him.

Page 658

There is no indication they were acting in bad faith. It is apparent that the confessions are so attenuated from the illegal arrest as to dissipate the taint. We therefore find the confessions purged of the taint of illegality, and thus admissible. Babek v. State, 587 P.2d 1375 (Okl.Cr.1978); J.D. v. State, 558 P.2d 402 (Okl.Cr.1976).

III.

Next, appellant alleges that evidence obtained from the search of the vehicle was the product of a purportedly illegal search and the fruit of an illegal arrest. The car was actually owned by appellant's common law wife. Officers obtained a "consent to search" from appellant's common law wife a short time after appellant had been taken to the police station. The consent...

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