Castellano v. State, M-77-213

• Citation: 585 P.2d 361
• Decision Date: 11 October 1978
• Docket Number: No. M-77-213,M-77-213
• Parties: Joseph Salvano CASTELLANO, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 361

585 P.2d 361

Joseph Salvano CASTELLANO, Appellant, v. The STATE of Oklahoma, Appellee.

No. M-77-213.

Court of Criminal Appeals of Oklahoma.

Oct. 11, 1978.

An Appeal from the District Court, Comanche County; Keith B. Aycock, judge.

Joseph Salvano Castellano, appellant, was convicted of the offenses of Driving Under the Influence of Alcohol and Driving Without a Valid Driver's License; was assessed a fine in the amount of One Hundred ($100.00) Dollars and sentenced to ten (10) days' imprisonment on the first charge and assessed a fine of Twenty ($20.00) Dollars on the second charge. REVERSED and REMANDED with instructions to DISMISS.

Lonny G. Long, Lawton, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., James W. McCann, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellant, Joseph Salvano Castellano, hereinafter referred to as defendant, was charged in the District Court, Comanche County, Case No. CRM-76-1159 and CRT-76-2597, with the offenses of Driving Under the Influence of Alcohol and Driving Without a Valid Driver's License. The cases were consolidated for trial before a jury, and defendant was convicted of both charges. Punishment was assessed at a fine of Twenty ($20.00) Dollars for Driving Without a License, and ten (10) days' imprisonment and a One Hundred ($100.00) Dollar fine for Driving Under the Influence of Alcohol. From said judgments and sentences, defendant has perfected a timely appeal to this Court.

The facts are these. Officer Kelley testified that on the evening of May 29, 1976, he was on duty at the Comanche County headquarters of the Oklahoma Highway Patrol, on East Gore Boulevard in Lawton. A male individual ran into the office and stated that he had just been robbed by three black males who were chasing him. At about this time Officer Kelley observed a car go by the station with a black male in the passenger seat. Officer Kelley observed the car to be bluish in color, but conceded that this may have been due to the mercury street lights. Kelley asked the victim what kind of vehicle the robbers were in, and the victim stated that it was a bluish or aqua colored Ford, possibly a Galaxie. Trooper Kelley then pursued the car which he had observed and effectuated a stop. The car did not travel erratically, speed, or attempt to elude Officer Kelley. Officer Kelley pulled up behind the car and got out of his vehicle, but remained behind the open door of the scout car. At this point, the officer became aware that the car he had stopped was a Buick and was dark green in color. The defendant, who was driving the Buick, got out of the car at the officer's request and came back to speak with the officer. As the defendant walked back to Kelley, he observed that the defendant was of Spanish descent rather than of African descent. Officer Kelley further observed that there were only two persons in the car. The officer stated, however, that he had intended to hold the defendant and the passenger until the victim of the robbery could view them.

The defendant was unable to produce a driver's license at the request of the officer. As of the date of trial he had not yet done so. Officer Kelley stated he detected the odor of alcohol about the defendant and further stated that he observed the other usual indicia of intoxication. Defendant was not placed under arrest for DUI at this time, although Officer Kelley commented that he was considering the possibility.

Officer Watkins arrived on the scene shortly thereafter, and spoke briefly with Kelley. Officer Kelley told Officer Watkins that the passenger had made suspicious movements and that Watkins should check on him. Kelley did not at this time inform Watkins of his suspicions concerning the intoxicated state of the defendant, nor had Kelley as yet placed the defendant under arrest for anything. However, Watkins had the passenger step out of the car, and Watkins searched the car, finding an open container of alcohol and some marihuana. Defendant was arrested for these, cuffed, and placed in the patrol car. He was then informed that he was under arrest for driving under the influence as well. The victim of the robbery then arrived and stated that neither the defendant nor the passenger were the robbers. Defendant was then taken to the station and given a Breathalyzer test, which indicated his blood alcohol content to be 0.14%.

Trooper Watkins was not present during the trial of this matter, or for a hearing on a motion to suppress the evidence held prior to trial. Because Trooper Watkins searched the defendant's car, finding the wine and marihuana, prior to the arrest of the defendant for driving under the influence, and because the State could produce no evidence which would otherwise justify the search, e. g. plain view, the court ordered that this bottle of wine be suppressed. Apparently in another action, the marihuana was suppressed as well.

Before approaching the question of the lawfulness of defendant's arrest for driving under the influence, a determination must be made as to when the arrest of the defendant first occurred. An arrest is the taking of a person into custody, so that he may be held to answer for a public offense. Title 22 O.S.1971, § 186. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. Title 22 O.S.1971, § 190. 6A C.J.S. Arrest § 2, defines arrest as:

"(T)he taking, seizing, or detaining the person of another either by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest, or any deprivation of the liberty of one person by another or any detention of him, for however short a time, without his consent, and against his will, whether it was by actual violence, threats, or otherwise. . . . " (Footnotes omitted).

Thus, if a suspect is interrupted and his liberty of movement is restricted by the arresting officer, then arrest is complete. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In Henry, the officers received information of an undisclosed nature from the defendant's employer, which implicated the defendant with the theft of interstate shipments of whiskey. After receiving this tip and after observing defendant load some cartons in an automobile and drive away, officers, without a warrant, stopped the automobile containing the defendant and another man. Their search revealed stolen articles. The United States Supreme Court stated:

"(T)he arrest took place when the federal agents stopped the car. . . . When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. . . . " (Citation omitted)

See, Moran v. United States, 404 F.2d 663 (10th Cir. 1968); Greene v. State, Okl.Cr., 508 P.2d 1095 (1973).

In the present case, the defendant contends, and the State concedes, both correctly so, that the initial stop by Officer Kelley with the intent to effectuate a restraint upon the person of the defendant as a robbery suspect, constituted an arrest. Officer Kelley testified that when he stopped the defendant as a robbery suspect he had the intention of preventing the defendant and the other occupant in the car from leaving, and that he had the means to do so. Officer Kelley also acknowledged that he did not intend to allow the suspects to leave until they had been viewed by the complainant to determine if they were in fact the robbery suspects. Therefore, when Officer Kelley stopped the defendant with these intentions the arrest was in effect.

In order to clarify the fact that Officer Kelley's first stop of the defendant was indeed an arrest as opposed to an investigatory detention, a distinction must be made. The distinction between an investigatory detention and a full arrest is largely a matter of degree. Both involve significant intrusions upon the privacy of the individual, although an investigatory detention which does not result in an arrest is of a much shorter duration than an arrest. The line between an investigatory detention and an arrest can indeed be thin, and often depends upon the intention of the officer involved. If an officer is...