Case v. State

• Decision Date: 13 February 1974
• Docket Number: No. F--73--303,F--73--303
• Citation: 519 P.2d 523
• Parties: Bruce CASE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 523

519 P.2d 523

Bruce CASE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--73--303.

Court of Criminal Appeals of Oklahoma.

Feb. 13, 1974.

Stephen Jones, Mary E. Bane, Enid, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Stan Chatman, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellant, Bruce Case, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Alfalfa County, Case No. CRF--72--11, for the offense of Arson in the Second Degree in violation of 21 O.S.1971, § 1402. His punishment was fixed at a fine of twelve thousand dollars ($12,000) in accordance with the verdict of the jury and a timely appeal has been perfected to this Court.

The defendant was the manager of an automatic laundry located in a building in Cherokee, Oklahoma. Fire broke out in that laundry at approximately 4:00 a.m. on June 28, 1972. The subsequent investigation discovered installed within the laundry an elaborate apparatus reminiscent of a Rube Goldberg contraption. At the stroke of 4:00 a timing device closed the contact between the wires of a 12 volt battery, setting off a chain reaction culminating in a fire. A network of cardboard tubing had been connected by a garden hose to a source of escaping natural gas. According to expert testimony, had the apparatus worked as it was apparently designed to work, the explosion touched off by the flame would have demolished the building that housed the laundry and two other businesses.

The apparatus could have been installed only between the time the laundry closed on the night of the fire and 4:00 a.m., when the timing device activated the apparatus. Cases was arrested on the afternoon following the fire. He was charged with Arson and incarcerated. Several hours later he was interviewed by the Sheriff in the presence of the District Attorney. Following that interview, the Sheriff returned to the Case residence and called a towing company to tow in the defendant's pickup truck which had been parked in front of his house. A subsequent search of the pickup disclosed a box of coins, such as the type used in the machines in the laundry, and certain tools, among them a soldering iron. At the direction of the Sheriff, two tires were removed from the pickup truck and the cast was taken of them. A witness had observed a pickup truck like the defendant's parked near the laundry at approximately 1:30 on the morning of the fire. The testimony at trial was that the plaster casts taken from the tires of defendant's pickup truck matched the tracks left by the pickup truck observed by the prosecution witness.

The defendant brings four assignments of error. We have considered each of them, but since only the first has merit and since the case may be disposed of upon that assignment, we will not discuss the others.

The defendant's claim is that the warrantless search of his pickup truck was unreasonable and that the trial court erred in overruling his motion to suppress the fruits of that search. In response, the Attorney General's brief asserts that the search was justified because the defendant waived his right to be free from unreasonable searches by consenting to the search of the truck, and that the trial court correctly overruled the motion to suppress because the defendant failed to prove the lack of a valid consent.

The most fundamental of all principles in this area of law is that the warrantless search is 'per se unreasonable under the Fourth Amendment.' Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, 585 (1967); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Norton v. State, Okl.Cr., 501 P.2d 877 (1972). Therefore, once a defendant establishes that evidence was seized as the result of a search without a warrant, the burden shifts to the State to show that the search is reasonable because it falls within the 'few specifically established and well delineated exceptions' to the Fourth Amendment requirement that a search have the prior approval of a judge or magistrate. Coolidge v. New Hampshire, supra; Katz v. United States, supra; Norton v. State, supra; Sam v. State, Okl.Cr., 500 P.2d 291, 295 (1972); Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143, 147 (1947). It is clear that 'the burden is on those seeking the exemption to show the need for it' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59, 64 (1951) and 'it is fundamental that a waiver must be proved by the party alleging it' Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143, 146 (1947).

Where, as in this case, the exception to the requirement of a warrant claimed is that the defendant consented to the search, the proof offered by the State must be ...