Dale v. State, No. F-2000-681.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtJOHNSON, Vice-Presiding.
Citation2002 OK CR 1,38 P.3d 910
Decision Date02 January 2002
Docket NumberNo. F-2000-681.
PartiesKenneth Earl DALE, Appellant, v. STATE of Oklahoma, Appellee.

38 P.3d 910
2002 OK CR 1

Kenneth Earl DALE, Appellant,
v.
STATE of Oklahoma, Appellee

No. F-2000-681.

Court of Criminal Appeals of Oklahoma.

January 2, 2002.


38 P.3d 911
William E. Erickson, Sapulpa, OK, Attorney for Defendant at trial

Glen D. Hickerson, Assistant District Attorney, Okemah, OK, Attorney for the State at trial.

Gloyd McCoy, Oklahoma City, OK, Attorney for Appellant on appeal.

Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorney for the State on appeal.

SUMMARY OPINION

JOHNSON, Vice-Presiding Judge.

¶ 1 Appellant, Kenneth Earl Dale, was tried by jury in Okfuskee County District Court, Case No. CF-1999-118, for Count 1: Unlawful Cultivation of Marijuana (63 O.S.Supp.1999, § 2-509) and Count 2: Use of a Firearm in the Commission of a Felony (21 O.S.Supp.1999, § 1287). The jury found Appellant guilty on both counts and recommended punishment of 55 years imprisonment and a $50,000 fine on Count 1, and eight years imprisonment on Count 2. The trial court sentenced Appellant accordingly on May 15, 2000, and Appellant timely perfected this appeal.

¶ 2 Appellant raises the following propositions of error:

1. Appellant's Fourth Amendment rights were violated when the law enforcement officers came onto his property through a locked gate without a warrant; any evidence seized or statements obtained following this illegal entry should be suppressed as "fruit of the poisonous tree."
2. The use of a firearm during the commission of a felony is not supported by competent evidence.
3. The sentence imposed upon Appellant is excessive; the sentence should be modified and the fine vacated.

¶ 3 After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find merit to Proposition 1 of Appellant's brief and reverse for the reasons set forth below.

¶ 4 The charges in this case stem from a warrantless entry onto Appellant's rural residential property by Drug Task Force agents. The agents approached Appellant's property after aerial surveillance suggested that marijuana was being cultivated in a patch not far from the residence. Appellant's property was enclosed by a fence, and the gravel driveway to the residence was blocked by a locked gate.

¶ 5 Approximately eight agents entered the property, unannounced, by climbing over the locked gate. At least two of the agents went directly toward the residence itself, where they were met by Appellant. The agents were dressed in military-style fatigues and boots. They were armed with pistols, though at least one agent, and perhaps more, had a semi-automatic rifle. All the while, a police helicopter surveyed the scene, descended to a low altitude as the ground-based agents approached Appellant, and landed nearby after contact was made.

¶ 6 The agents who approached Appellant told him they were aware of marijuana being grown on the property, and Appellant made some sort of affirmative reply. The agents then asked for permission to search, and Appellant complied. At some point during this exchange, Appellant was told that if he did not consent to a search, the agents would seek a search warrant. During the resulting search, the agents found not only the patch of marijuana, but various paraphernalia associated with its cultivation, as well as a firearm in Appellant's home.

¶ 7 In Proposition 1 Appellant claims, as he did below, that his consent to the search of his property was not voluntarily given.1 We begin by restating the fundamental

38 P.3d 912
rule that searches conducted outside the judicial process, without prior approval by a magistrate, are presumptively unreasonable under both the Fourth Amendment to the United States Constitution, and Article 2, § 30 of the Oklahoma Constitution. The exceptions to this rule are "jealously and carefully drawn," and there must be a showing by those who seek exemption that the exigencies of the situation made immediate action imperative. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (citations omitted); Castleberry v. State, 1984 OK CR 30, ¶¶ 6-7, 678 P.2d 720, 723

¶ 8 We conclude that the agents' entry of Appellant's property, accompanied by neither a warrant, consent, nor some exigent circumstance, by climbing over the locked driveway gate, which was part of a secure perimeter fence, and proceeding between the two residential structures in order to confront Appellant was an unlawful entry onto the curtilage of the home,2 and as such, violated Appellant's constitutional protection from unreasonable intrusion.

¶ 9 The agents had ample time to seek a search warrant based on their aerial observation of the suspected marijuana the day before, which itself was entirely lawful.3 The Court finds no reason for a warrantless search. When law enforcement has this much time to obtain a search warrant, one should and must be obtained. The State presented no evidence of any exigent circumstances that would show a warrantless entry was necessary. See Fite v. State, 1993 OK CR 58, ¶ 17, 873 P.2d 293, 296-97.

¶ 10 Because the agents' entry was unlawful, any incriminating statements made by Appellant during this encounter (such as his apparent admission that marijuana was growing on the property) were obtained unlawfully. Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2262-63, 45 L.Ed.2d 416 (1975); Lowry v. State, 1986 OK CR 177, ¶¶ 6-7, 729 P.2d 511, 512-13. Furthermore, considering the totality of circumstances, including (1) the unlawful entry itself, (2) the number of agents participating, (3) their manner of dress, (4) the fact that they were armed not only with pistols but also with semi-automatic weaponry, and (5) the presence of the police helicopter immediately overhead during the encounter, we are convinced that Appellant's consent to the search of the premises was not voluntary in the constitutional sense of the term. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973); Jennings v. State, 1987 OK CR 219, ¶ 16, 744 P.2d 212, 215. Consequently, the agents' search of the marijuana patch, based on Appellant's involuntary consent, was unlawful, and the fruits thereof must be suppressed.

¶ 11 Our disposition of the case renders Propositions 2 and 3 moot.

DECISION

The Judgment and Sentence of the district court is REVERSED WITH INSTRUCTIONS TO DISMISS.

CHAPEL and STRUBHAR, JJ., concur.

38 P.3d 913
LILE, J., specially concurs

LUMPKIN, P.J., dissents.

LILE, J.: SPECIALLY CONCURS.

¶ 1 I agree that the "consent" to search was not voluntary under the facts in this case, and the results of the search must be suppressed.

LUMPKIN, Presiding Judge: Dissents.

¶ 1 I dissent to the Court's decision to reverse this case and to the Court's disregard of our well established caselaw on search and seizure. This action reflects a desire to legislate public policy rather than adhere to the discipline of applying the doctrine of stare decisis. Our jurisprudence has consistently validated the open fields doctrine which does not require consent to enter the property when the doctrine applies. Here, the Court disregards that established law to achieve a desired result.

¶ 2 This Court has always interpreted Article II, Section 30, of the Oklahoma Constitution consistent with the Fourth Amendment of the United States Constitution. In Sanders v. State, 287 P.2d 458, 463 (Okl.Cr.1955) this Court stated:

By the provision of Section 30 of Article II of the Constitution of Oklahoma, it is provided that:
`The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.'
This provision is almost identical in language with the Fourth Amendment to the Constitution of the
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5 practice notes
  • City of Okla. City v. Fondren, Case No: 118, 471
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 28, 2022
    ...both the Fourth Amendment to the U.S. Constitution and Article 2, § 30 of the Oklahoma Constitution. Dale v. State , 2002 OK CR 1, ¶ 7, 38 P.3d 910. "The exceptions to this rule are ‘jealously and carefully drawn,’ and there must be a showing by those who seek exemption that the exigencies ......
  • DARITY v. State, No. F-2007-1192.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 2, 2009
    ...prior judicial approval of how searches of private property are conducted. Okla. Const. Art. II, § 30; Dale v. State, 2002 OK CR 1, ¶ 7, 38 P.3d 910, 911-12. Through enactment of various statutes, our Legislature has elaborated on how search warrants should be sought, approved, and executed......
  • USA v. Sawyer, No. CQ-2004-240.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • June 8, 2004
    ...v. Stuart, 1993 OK CR 29, ¶ 19, 855 P.2d 1070, 1074; Phipps, 1992 OK CR 32, ¶ 12, 841 P.2d at 594; Dale v. State, 2002 OK CR 1, ¶ 10, 38 P.3d 910, 912 (fruits of search based upon involuntary consent would be suppressed). The evidence seized during the initial search as well as the evidence......
  • State v. Davis, No. 28,219.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 4, 2011
    ...Defendant was subjected to coercive circumstances and was under duress when he gave consent. See Dale v. State, 2002 OK CR 1, ¶¶ 4–8, 38 P.3d 910, 911–12 (holding that the defendant's [263 P.3d 958] consent to search his premises was involuntary considering the totality of the circumstances......
  • Request a trial to view additional results
5 cases
  • City of Okla. City v. Fondren, Case No: 118, 471
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 28, 2022
    ...both the Fourth Amendment to the U.S. Constitution and Article 2, § 30 of the Oklahoma Constitution. Dale v. State , 2002 OK CR 1, ¶ 7, 38 P.3d 910. "The exceptions to this rule are ‘jealously and carefully drawn,’ and there must be a showing by those who seek exemption that the exigencies ......
  • DARITY v. State, No. F-2007-1192.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 2, 2009
    ...prior judicial approval of how searches of private property are conducted. Okla. Const. Art. II, § 30; Dale v. State, 2002 OK CR 1, ¶ 7, 38 P.3d 910, 911-12. Through enactment of various statutes, our Legislature has elaborated on how search warrants should be sought, approved, and executed......
  • USA v. Sawyer, No. CQ-2004-240.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • June 8, 2004
    ...v. Stuart, 1993 OK CR 29, ¶ 19, 855 P.2d 1070, 1074; Phipps, 1992 OK CR 32, ¶ 12, 841 P.2d at 594; Dale v. State, 2002 OK CR 1, ¶ 10, 38 P.3d 910, 912 (fruits of search based upon involuntary consent would be suppressed). The evidence seized during the initial search as well as the evidence......
  • State v. Davis, No. 28,219.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 4, 2011
    ...Defendant was subjected to coercive circumstances and was under duress when he gave consent. See Dale v. State, 2002 OK CR 1, ¶¶ 4–8, 38 P.3d 910, 911–12 (holding that the defendant's [263 P.3d 958] consent to search his premises was involuntary considering the totality of the circumstances......
  • Request a trial to view additional results

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