Brown v. City of Oklahoma City

• Citation: 721 P.2d 1346
• Decision Date: 04 February 1986
• Docket Number: No. 61122,No. 4,61122,4
• Parties: 1986 OK CIV APP 1 Thecia BROWN, Appellant, v. The CITY OF OKLAHOMA CITY, Oklahoma, and its Servants, Agents and Employees, Including, but not Limited to Officer W. Citty; and W. Citty and Others, Individually, Appellees. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1346

721 P.2d 1346

1986 OK CIV APP 1

Thecia BROWN, Appellant, v. The CITY OF OKLAHOMA CITY, Oklahoma, and its Servants,

Agents and Employees, Including, but not Limited

to Officer W. Citty; and W. Citty and

Others, Individually, Appellees.

No. 61122.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 4.

Court of Appeals of Oklahoma,

Division No. 4.

Feb. 4, 1986.

Rehearing Denied March 24, 1986.

Don Cooke, Miskovsky & Cooke, Oklahoma City, for appellant.

Walter M. Powell, Municipal Counselor, Richard E. Mahoney, Assistant Municipal Counselor, Oklahoma City, for appellees.

BRIGHTMIRE, Presiding Judge.

The determinative questions for resolution are these: (1) was the warrantless search of plaintiff's residential premises and seizure of her automobile unreasonable and therefore illegal? And, if so, (2) did plaintiff have a right to resist the wrongful seizure and ensuing arrest with reasonable force?

We answer both questions affirmatively and reverse the summary judgment rendered below.

I

The operative facts are embodied in the following stipulation of the parties:

"1. That on March the 6th, 1979, Officers Englebretsen and Citty received a radiogram from the Oklahoma City Police Department indicating that one Darrell Brown, a black male, 27 years of age, six feet one inch tall, and 175 pounds, possible address 4025 N.E. 19th and possible vehicle a 1975 Cadillac sedan two-door, tag 78 OK XR-1539, had committed the felony of defrauding an innkeeper at the Habana Inn in Oklahoma City....

2. That the radiogram directed the officers to place Allen [sic] Brown under arrest.

3. That on March the 6th, 1979, Officers Englebretsen and Citty went to the residence of Darrell Brown as set forth in the radiogram ... and observed a Cadillac backed into the garage with the garage door remaining open; that the car in the garage was a 1974 four-door Cadillac; that the officers walked into the garage to observe the tag and to match the tag listed in the radiogram.

4. That thereafter the officers went to the door of the residence and knocked; that the plaintiff herein, Thecia Brown, answered the door; that the officers inquired as to whether or not Darrell Brown was home whereupon they were advised by Mrs. Brown that he was not; that the officers requested permission to search the home for his person and were refused by Mrs. Brown; that thereafter the officers advised Mrs. Brown that they were impounding the Cadillac in the garage for the reason that it was used in the commission of a felony; that Thecia Brown refused to give her permission to the officers to remove the car and asked the officers for some authoritative papers for the seizure of her car. That there was some discussion about the officers' authority to seize the Cadillac.

5. That at the time of entry upon Mrs. Brown's property the officers did not have a search warrant.

6. That the vehicle sought to be impounded was the property of Darrell and Thecia Brown.

7. That the officers called a wrecker service to remove the Cadillac from the garage; that in order to remove the Cadillac the other vehicle (Toyota) belonging to Thecia Brown must have been removed to reach and attach the Cadillac; that the officers requested Thecia Brown to remove her vehicle (Toyota) and she refused; that the officers ordered the wrecker service to remove the Toyota so that they could impound the Cadillac.

8. That Thecia Brown actively resisted and interfered with the removal and seizure of the Toyota and Cadillac at which time Thecia Brown was placed under arrest and that she resisted her arrest.

9. That Thecia Brown was booked into the City Jail and charged with interfering with official process, grabbed wrecker driver and officers."

The charges against plaintiff were later dismissed according to the petition and this action was brought to recover damages, both compensatory and punitive, for false arrest, false imprisonment, assault and battery, and malicious prosecution. ¹ The case came on for trial February 8, 1982. It was at that time the parties entered into the foregoing stipulation of facts and asked the court to judicially determine the lawfulness of the seizure on the basis of such facts. The thinking of the parties, according to defendants, was that under the agreed facts the validity of plaintiff's cause of action hinged on the answer to the following questions of law which were submitted to the court:

1. Did "the police officers ha[ve] the right to seize the [Cadillac] automobile?"

2. Did the police officers have the right "to arrest the plaintiff and to file charges against her for interfering with the police officer in the conduct of his official duties?"

The trial court apparently answered both of these questions affirmatively and rendered judgment in favor of defendants. An earlier appeal was dismissed by this court because it was premature. ² Upon remand the defect was cured and this appeal was lodged.

II

The first issue raised--whether the warrantless search of Brown's garage and the seizure of the Cadillac automobile located in it were constitutionally unreasonable and therefore unlawful--is answered in the affirmative.

Unreasonable searches and seizures of one's person, home or property are prohibited by both the Fourth Amendment of the United States Constitution and Article 2, § 30 of our state constitution--two identical provisions which the courts construe liberally in favor of the individual whose right of privacy they are designed to protect. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). A warrantless search is "per se unreasonable." Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Case v. State, 519 P.2d 523 (Okl.Cr.1974). With regard to one's home the protection extends to the entire curtilage which includes, among other things, garages, sheds, barns and the like. Luman v. State, 629 P.2d 1275 (Okl.Cr.1981). "The right of the people to be secure in their ... houses ... shall not be violated," is the unequivocal Fourth Amendment command. It forms the foundation for a man's right "to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961). And in "terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house," proclaimed the nation's highest tribunal in Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). "Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant," the court added.

Here there exists no fact or circumstance which furnishes a legal reason or probable cause for either the search or the seizure. The stipulated facts are that Oklahoma City Police Officers Englebretsen and Citty received a "radiogram" on March 6, 1979, "from the Oklahoma City Police Department indicating that one Darrell Brown ... had committed the felony of defrauding an innkeeper ... [and] directed the officers to place ... Brown under arrest." That is all they were directed to do--place Brown under arrest. Presumably to aid them in locating the suspect, the message mentioned a "possible address" where he might live and the description and tag number of a "possible vehicle"--a 1975 Cadillac two-door sedan. For while the relevance of the automobile information or its connection with the suspect or his contemplated apprehension was not disclosed in the radio dispatch, it is logical to conclude that the information was provided to aid in locating Brown and not for seizure of the vehicle. In any event we know for a fact the radiogram did not say the car was used or involved in the commission of any felony, or even that Darrell Brown owned it.

It is significant that the defending officers admit they drove to the given address where from the street they saw the front end of a Cadillac protruding from an open garage in front of which was parked plaintiff's Toyota. Instead of first seeking a search warrant--which doubtless would have been denied--the officers invaded plaintiff's private property, proceeded to enter the garage and began a search by checking the tag number on the back of the Cadillac. Upon finding that the number matched the "possible vehicle" mentioned in the dispatch, the officers went to the house door, knocked, and inquired of Mrs. Brown about the presence of Darrell Brown. Upon being advised the suspect was not home and upon being refused permission to search the home for him the officers said they would seize the Cadillac because "it was used in the commission of a felony,"--an arbitrary act which could not have been accomplished by court order without an evidentiary hearing. And so, over the objection of Mrs. Brown, the officers called a wrecker and forsaking due process of law, proceeded to forcibly exercise dominion over her Toyota and her Cadillac.

Thus, it is that at this point subject question emerges--did the officers have a right to seize the vehicle? The trial judge concluded they did. His reasoning was that the information in the radio transmission provided the officers with "probable cause to search for and to arrest the suspect Darrell Brown" and once on his premises they had a right to carry out a search if they saw anything that "could be used [as evidence] in the trial of the suspect;" and that the officers "inadvertently discovered" the front end of a Cadillac in "plain view." Although the judge conceded that "the automobile was probably not used in the commission of the offense," he "nevertheless [found that] it was valuable evidence in the commission of the crime."

The trouble with the trial judge's theory is two-fold. One, it is supported by neither facts nor law. He assumed facts not contained in the stipulation, e.g. that the Cadillac "was valuable evidence in the...