Brumfield v. State

• Decision Date: 20 March 2007
• Docket Number: No. F-2005-952.,F-2005-952.
• Parties: Robert D. BRUMFIELD, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

155 P.3d 826

2007 OK CR 10

Robert D. BRUMFIELD, Appellant v. STATE of Oklahoma, Appellee.

No. F-2005-952.

Court of Criminal Appeals of Oklahoma.

March 20, 2007.

Kyle McCallum, Attorney at Law, Hugo, OK, attorney for defendant at trial.

James R. Wolfe, Assistant District Attorney, Pushmataha District Attorney, Antlers, OK, attorney for the state at trial.

Kimberly J. Tabor, Hurst, TX, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer L. Strickland, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

CHAPEL, Presiding Judge.

¶ 1 Robert D. Brumfield was tried by jury and convicted of Aggravated Manufacture of a Controlled Dangerous Substance (Methamphetamine), under 63 O.S.Supp.2004, § 2-401(G)(3)(h) (Count I), and Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine), under 63 O.S.Supp. 2004, § 2-402(B)(1) (Count II), in the District Court of Pushmataha County, Case No. CF-2005-35. In accordance with the jury's recommendation, the Honorable Lowell Burgess, Jr., sentenced Brumfield to imprisonment for twenty (20) years on Count I, and imprisonment for two (2) years on Count II to be served concurrently. The trial court also imposed a $50,000 fine on Count I, as required by 63 O.S.Supp.2004, § 2-401(G)(3)(h).¹ Brumfield appeals his convictions and his sentences.

¶ 2 During the evening of March 16, 2005, Tiffany Hyde was present in the residence of Johnny Payne when officers from the Antlers Police Department executed a search warrant for the home and discovered a methamphetamine lab. In order to avoid being arrested or charged, Hyde agreed to go to the home of Robert Brumfield to see if there was methamphetamine present or if he was "cooking" methamphetamine. Hyde had previously been a live-in girlfriend of Brumfield's and although she had recently moved out, she still had a key. Hyde went to Brumfield's home, and while there she, Brumfield, and his new girlfriend, Tara Kinsey, each did a line of methamphetamine off of a "Jesus mirror" that they typically used for this purpose.²

¶ 3 After leaving the Brumfield home, Hyde met up with Officer Ben Milner and told him about using the methamphetamine with Brumfield and that he had gotten the drug out of a green zippered bag, which contained several small plastic bags of methamphetamine. Hyde also informed Milner that she had previously lived with Brumfield and that he typically cooked methamphetamine in his home about three times per week. Hyde also informed Milner that the last time she had witnessed Brumfield cooking was about 10 days earlier. Milner then used this information to obtain a warrant to search Brumfield's home.³

¶ 4 At approximately 9:30 a.m., on March 17, 2005, Officer Milner and three other officers from the Antlers Police Department (Keith Mack, B.J. Hedgecock, and Johnny Mitchell) arrived at the Brumfield home to execute the warrant. Milner testified that he knocked on the door, identified the group as "police," and announced that they had a warrant to search the property. After waiting approximately 20 seconds with no response, Milner instructed Deputy Mack to "take the door." Mack then busted open the front door with a sledge hammer, and Officers Milner, Mack, and Mitchell went into the Brumfield home. They observed Brumfield and a woman who was not wearing pants coming toward the front door from the back bedroom area. The officers also noticed a strong, irritating chemical smell, which they associated with the clandestine manufacture of methamphetamine.

¶ 5 During the subsequent search of Brumfield's home, they discovered a large glass jar containing a two-layer liquid solution, which tested positive for methamphetamine, in the leg of a pair of jeans that were in the washing machine.⁴ The officers also discovered a sealed plastic bag containing numerous striker plates that had been removed from paper matchbooks. The bag of striker plates was found in a bag of dog food, and the ember remains of the matchbooks were found in the fireplace. In addition to these items, the officers discovered the following in Brumfield's home, all of which are associated with the production of methamphetamine: a bottle of Liquid Fire, a container of Red Devil lye, multiple packages of coffee filters, two large containers of table salt, a container of phosphoric acid, three bottles of rubbing alcohol, baggies, scales, chemistry books, and various empty glass jars.

¶ 6 A further search of the property around the residence revealed a large container of iodine (placed in the wheel well area of a decaying car), a bag of plastic vials (in a van on the property), and numerous items of laboratory-type glassware (in a shop area and buried under Brumfield's home). In the remains of a burn pile in the back yard, officers discovered what appeared to be toluene cans and blister packs (typically associated with ephedrine tablets).⁵ The search, which lasted approximately two days, did not, however, reveal the green zippered bag described by Hyde or any usable methamphetamine.

¶ 7 The crux of Brumfield's Proposition I claim is that the manner in which the Antlers police officers executed the warrant to search his home violated the Fourth Amendment's "knock-and-announce" requirement and also 22 O.S.2001, § 1228. Defense counsel filed a motion to suppress based upon this claim, which was denied by the Honorable Gary L. Brock, on May 11, 2005, at the conclusion of Brumfield's preliminary hearing.⁶ On June 15, 2005, Brumfield filed a new motion to suppress, making this same claim but incorporating testimony from the preliminary hearing.⁷

¶ 8 Within Proposition I, Brumfield contends that the information in the affidavit for the warrant to search his home was insufficient to establish probable cause for the warrant, since the affidavit failed to state that Hyde was first encountered in the bust of a separate methamphetamine lab and that she was under the influence of this drug at the time she provided information. The State correctly notes that Brumfield neglected to raise this claim in support of his suppression motions, thereby waiving it absent plain error.⁸ We find no plain error in this regard.⁹

¶ 9 Brumfield's main Proposition I claim is that the execution of the search warrant on his home violated the Fourth Amendment's "knock-and-announce" requirement and also 22 O.S.2001, § 1228. On July 17, 2006, after the briefing in this case had been completed, the State tendered a supplemental brief discussing the impact of the United States Supreme Court's June 15, 2006, decision in Hudson v. Michigan on the current claim.¹⁰ On August 22, 2006, this Court ordered that the tendered brief be filed and that Brumfield be allowed to respond to the State's supplemental brief. Brumfield's response brief was filed with this Court on September 5, 2006.

¶ 10 In Hudson, the Supreme Court recognized that "[t]he common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one."¹¹ The Court likewise acknowledged that in Wilson v. Arkansas,¹² the Court had concluded that the "knock-and-announce rule," for officers executing a search warrant, is constitutionally required under the Fourth Amendment.¹³ Nevertheless, the Hudson Court held, in a 5-4 decision, that a violation of this knock-and-announce rule, by officers executing a search warrant, does not require that the evidence obtained in the subsequent search be suppressed.¹⁴ The Court recognized three interests protected by the knock-and-announce requirement: (1) the protection of human life and limb, since unannounced entries can provoke violence from surprised residents attempting to protect themselves; (2) the protection of property, since the rule gives individuals the opportunity to avoid the destruction of property caused by a forcible entry; and (3) the values of privacy and dignity, since the rule gives people an opportunity to prepare themselves for the entry of police.¹⁵

¶ 11 The Hudson Court emphasized, however, that the rule "has never protected . . . one's interest in preventing the government from seeing or taking evidence described in a warrant."¹⁶ The Hudson Court then examined the "social costs" and "deterrence benefits" of applying the exclusionary rule to cases where officers violated the knock-and-announce rule.¹⁷ The Court concluded:

In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial—incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.¹⁸

Hence the State argues, quite reasonably, that even if the execution of the warrant at Brumfield's home violated the Fourth Amendment's knock-and-announce requirement, the evidence obtained thereafter need not be suppressed, under the authority of Hudson.

¶ 12 Brumfield responds, however, also quite reasonably, that the decision in Hudson does not control this Court's interpretation of our own state statute, namely, 22 O.S.2001, § 1228. This provision authorizes the use of force in the execution of a search warrant on an occupied home only under two particular circumstances.¹⁹ First, it establishes criteria under which a "no-knock" warrant can be issued by a magistrate, thereby allowing a forceful entry without any warning, where there is reasonable cause to believe that one or more specific "exigent circumstances" exist.²⁰ Otherwise, § 1228 does not allow the forceful entry into a home for the execution of a search warrant, unless "[t]he officer has been refused admittance after having first given notice of his authority and purpose."²¹ Although no-knock warrants were not legislatively authorized until ...