Baxter v. State Of Okla.

• Decision Date: 23 August 2010
• Docket Number: No. F-2009-687.,F-2009-687.
• Parties: Richard Zobon BAXTER, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

238 P.3d 934

2010 OK CR 20

Richard Zobon BAXTER, Appellant

v.STATE of Oklahoma, Appellee.

No. F-2009-687.

Court of Criminal Appeals of Oklahoma.

Aug. 23, 2010.

In the District Court of Tulsa County; the Honorable Tom C. Gillert, District Judge.

Richard Clark, Assistant Public Defender, Tulsa, OK, attorney for defendant at trial.

Jason Rush, Tammy Westcott, Assistant District Attorneys, Tulsa, OK, attorneys for state at trial.

Curtis M. Allen, Assistant Public Defender, TULSA, OK, attorney for petitioner on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Donald D. Self, Assistant Attorney General, Oklahoma City, OK, attorneys for respondent on appeal.

SUMMARY OPINION

LEWIS, Judge.

¶ 1 Richard Zobon Baxter was tried by jury and convicted of Count I, Trafficking (Ecstasy) in violation of 63 O.S.Supp.2005, § 2-415(C); Count II, Trafficking (Cocaine) in violation of 63 O.S.Supp.2005, § 2-415(C); Count IV, Possession of Controlled Dangerous Substance (Cocaine) Without a Tax Stamp in violation of 68 O.S.2001, § 450.1; Count V, Possession of a Controlled Dangerous Drug With Intent to Distribute in violation of 63 O.S.Supp.2005, § 2-401(B)(2); Count VI, Possession of Drug Paraphernalia in violation of 63 O.S.Supp.2004, § 2-405; Count VII, Driving While Suspended in violation of 47 O.S.Supp.2004, § 6-303; Count VIII, Failure to Pay Taxes in violation of 47 O.S.Supp.2007, § 1151(A)(5); and Count IX, Failure to Carry Proof of Insurance in violation of 47 O.S.Supp.2006, § 7-606, all after former conviction of a felony, in the District Court of Tulsa County, Case No. CF-2007-4439. ¹ In accordance with the jury's recommendation the Honorable Tom C. Gillert sentenced Baxter to sixty (60) years imprisonment and a fine of $60,000 (Count I); forty (40) years imprisonment and a fine of $25,000 (Count II); five (5) years imprisonment and a fine of $1000 (Count IV); fifteen (15) years imprisonment and a $15,000 fine (Count V); one (1) year in county jail (Count VI); a fine of $500 (Count VII); a fine of $250 (Count VIII); and seven (7) days in jail and a fine of $250 (Count IX). The sentences in Counts I and II run concurrently with each other, while the sentences in Counts V, VI and IX run concurrently with one another and consecutively to the other counts. Baxter appeals from these convictions and sentences.

¶ 2 Baxter raises one proposition of error in support of his appeal:

I. The trial judge violated Baxter's Fourth Amendment right to be free of unreasonable searches when he admitted evidence found during the search of the passenger compartment of Baxter's vehicle where Baxter had been arrested for traffic violations and was handcuffed and secured in a police officer's patrol vehicle.

¶ 3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is required on Counts I, II, IV, V and VI.

¶ 4 Baxter claims that the trial court erred in denying his motion to suppress the evidence obtained from the search of his car. Police conducted a warrantless search of Baxter's car after he was arrested, handcuffed, removed from the vehicle and placed in a patrol car. The only justification in the record for the search is that it was incident to Baxter's arrest. This case falls squarely within the recent United States Supreme Court prohibition against this type of search. In Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Court reviewed a search incident to arrest after a traffic stop was conducted, and determined the search violated the Fourth Amendment. Discussing previous Supreme Court case law, and its interpretation by state and federal lower courts, the Court noted that in some instances courts upheld any vehicle search incident to an arrest even when the passenger compartment was not within the reach of the arrested person at the time of the search. The Court concluded that this interpretation allows an impermissibly broad scope for vehicle searches. The Court held:

[P]olice [are authorized] to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Fn4. Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains. Cf. 3 W. LaFave, Search and Seizure § 7.1(c), p. 525 (4th ed.2004) (hereinafter LaFave) (noting that the availability of protective measures “ensur[es] the nonexistence of circumstances in which the arrestee's ‘control’ of the car is in doubt”). But in such a case a search incident to arrest is reasonable under the Fourth Amendment.

Gant, 129 S.Ct. at 1719.

¶ 5 The law does not support an argument that the search was justified because officers believed they might find relevant evidence connected to the arrest. Baxter was stopped and arrested for traffic violations. Nothing in the record suggests that officers had any basis to suspect any other crime was being committed at the time they began the search. The Supreme Court rejected such an argument under similar circumstances in Gant:

[W]e also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” [citation omitted] In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.

Gant, 129 S.Ct. at 1719. [Emphasis added].

¶ 6 The State has the burden to show this warrantless search falls within a specific exception to the Fourth Amendment warrant requirement. Burton v. State, 2009 OK CR 10, ¶ 13, 204 P.3d 772, 776. Particularly in light of Gant, the State fails to meet this burden. The State offers several arguments to justify admission of the evidence.

¶ 7 The State suggests that the arrest was the result of circumstances which developed after Baxter's arrest and passenger Cooke's removal from the car, before the search began. The State first argues that the marijuana was in plain view before the search began, justifying the search. The record does not support this claim. There was no evidence suggesting the marijuana was in plain view presented at any proceeding. Officer Margason testified at preliminary hearing, the hearing on the motion to suppress, and at trial that a bag of marijuana was in the console when he searched the car and that he found the baggie after he began the search. He testified at trial that he believed there was a lid on the console, and said, “I can't recall if it was open or shut, but my recollection is it was not shut.” None of the officers present before and during the search testified either that they saw the marijuana or had the opportunity to see it before the search began. The plain view exception does not apply.

¶ 8 The State argues that, when Officer Oelke asked passenger Cooke for her identification, he saw a large amount of cash ($1208) loose in her purse in a manner consistent with how drug dealers sometimes keep money, she had trouble speaking and was breathing rapidly, her hands were shaking and she was extremely nervous. The State suggests this evidence, along with the marijuana in plain view, provided probable cause to believe that illegal drugs were in the car and justified the search. As we discuss above, the record does not support the claim that the marijuana was in plain view. We are left with Cooke's nervousness and the cash. The record does not support any conclusion that the search was in any way predicated on Cooke's belongings or behavior. Oelke testified at the hearing on the motion to suppress and at trial that he did not make contact with Cooke or speak to her until after Baxter was under arrest. Oelke testified at trial that he knew Margason planned to search the vehicle incident to arrest when he spoke to Cooke, and he asked her to step out of the car because police do not conduct a search with someone in the car. Margason testified that he planned to search the car while Oelke was talking to Cooke and that he began the search after Oelke asked Cooke to step out of the car. The record shows that the officers planned to search the car before Oelke made his observations about Cooke.

¶ 9 The State suggests that the search falls under the good faith exception. It does not. The good faith exception applies only to searches conducted with a warrant. U.S. v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). This was a warrantless search. The State also relies on Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), to argue that the exclusionary rule should not apply here. Hudson, following Leon, discusses exclusion of evidence gained through an unlawful search conducted pursuant to a warrant. Hudson, 547 U.S. at 593, 126 S.Ct. at 2165. Hudson specifically notes there is a difference between unlawful searches pursuant to a warrant and “the fruits of unlawful warrantless searches.” Hudson, id. When considering whether illegally obtained evidence should be excluded, the question is whether the illegal evidence was “come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Here, the evidence against Baxter was solely the result of the unlawful search, without any intervening occurrence which might attenuate the connection between the unlawful search and the evidence and thus dissipate the taint. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417.

¶ 10 The State apparently uses “good faith” not as a term of art, but as a measure of fairness....