Anderson v. State, F-80-719
| Decision Date | 24 January 1983 |
| Docket Number | No. F-80-719,F-80-719 |
| Citation | 657 P.2d 659 |
| Parties | David ANDERSON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
David Anderson, appellant, was convicted of Cultivation of Marijuana in LeFlore County District Court, Case No. CRF-78-172. He was sentenced to two (2) years' imprisonment and a five hundred dollar ($500) fine, and appeals. REVERSED and REMANDED.
Mark Barrett, Asst. Appellate Public Defender, Norman, for appellant.
Jan Eric Cartwright, Atty. Gen., State of Okl., Susan Talbot, Asst. Atty. Gen., Oklahoma City, for appellee.
David Anderson was convicted of Cultivation of Marijuana, pursuant to 63 O.S.1981, § 2-509, in LeFlore County District Court, Case No. CRF-78-172. He was sentenced to two years' imprisonment and a five hundred dollar ($500) fine.
After receiving certain information, Deputy Sheriff Steve Hensley went to Dr. E.M. Woodson's home in Poteau, Oklahoma, and observed marijuana growing in a garden near the rent house at the rear of the property. Based on his observation he obtained a search warrant. The search of the garden, house and shed produced forty-seven (47) marijuana plants, several bags of marijuana and various paraphernalia. The appellant, the resident of the rent house, was arrested two days later.
Numerous errors involving the search warrant and evidence obtained as a result of the search are raised on appeal. After a thorough review of all issues raised, we agree that the appellant has shown sufficient error to merit a reversal of his judgment and sentence. Only those issues on which our reversal is based will be discussed.
The appellant first asserts that his motion to suppress all the evidence obtained as a result of the search should have been granted. Specifically, he argues that the warrant did not describe with particularity the place to be searched as required by the Oklahoma Constitution Article II, § 30 and 22 O.S.1981, § 1223. The search warrant described the property to be searched as Lot 34 Townsite 3 in the City of Poteau, LeFlore County, Oklahoma, together with a single story white frame house belonging to Dr. Woodson and occupied by David Anderson said house having a small fenced garden on the east side of said house. Said residence being further described as the small house to the south west of a large red brick multiple storied house belonging to Dr. Woodson and located on said lot also. Said house being located on the large hill directly west of the LeFlore County Courthouse and south west of the Poteau water tower located on said hill at the intersection of Paul Mathis Drive and Beard Street.
The property actually searched was Lot 3, Block 147, which was directly east and contiguous to the property described in the search warrant. Dr. Woodson owned both pieces of property. The single story house described in the search warrant as being white frame was actually chocolate brown brickette, and the large red brick multiple storied house described as being located on the large hill directly west of the LeFlore County Courthouse and southwest of the Poteau water tower was actually south of the water tower. There are eight or ten houses south of the water tower, "hardly any" houses southwest of the water tower.
The general rule is often quoted by this Court:
... that the search warrant must so particularly describe the place to be searched that the officer can find the place without the aid of any other information save that contained in the warrant. McCormick v. State, 388 P.2d 873 (Okl.Cr.1964).
Deputy Sheriff Hensley initially observed the appellant's garden because he had received some information that marijuana was growing there. He then returned to the courthouse and reported it to the District Attorney's office in order to obtain a search warrant. He returned to the property with the warrant to obtain the evidence on which this conviction is based. There is no doubt in our minds that Officer Hensley knew which property he was referring to when he erroneously described it in the affidavit for search warrant. However, the search warrant was addressed to "Any Sheriff, Policeman or Law Officer in the County of LeFlore." We do not believe a sheriff, policeman or law officer would have been able to find the Anderson garden by relying strictly on the description in the search warrant. The test as stated in McCormick, supra, was not met and the search warrant was not sufficient. As this writer stated in Nottingham v. State, 505 P.2d 1345 at 1348 (Okl.Cr.1973), Brett dissenting:
In my opinion loose interpretation of this constitutional...
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