DARITY v. State, F-2007-1192.

• Decision Date: 02 October 2009
• Docket Number: No. F-2007-1192.,F-2007-1192.
• Parties: Clifford Dale DARITY, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

220 P.3d 731

2009 OK CR 27

Clifford Dale DARITY, Appellant v. STATE of Oklahoma, Appellee.

No. F-2007-1192.

Court of Criminal Appeals of Oklahoma.

October 2, 2009.

J.P. Longacre, Carl Leforce, Jerry Mccombs, John Bounds, Idabel, OK, attorneys for defendant at trial.

Gloyd L. McCoy, Noble, OK, attorney for appellant on appeal.

Laura Willis, District Attorney, Laurie Pollard, Idabel, OK, attorneys for the state at trial.

W.A. Drew Edmondson, Attorney General, Theodore M. Peeper, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

LEWIS, Judge.

¶ 1 Clifford Dale Darity, Appellant, was tried by jury in the District Court of McCurtain County, Case Number CF-2006-519, and found guilty of Count I, trafficking illegal drugs, in violation of 63 O.S.Supp.2004, § 2-415; Count II, possession of a controlled substance with intent to distribute within 2,000 feet of a school, in violation of 63 O.S.Supp.2005, § 2-401(F); and Count III, unlawful possession of drug paraphernalia, in violation of 63 O.S.2001, § 2-405(B). The jury sentenced Appellant to forty (40) years imprisonment and a $100,000 fine on Count I, life imprisonment and a $200,000 fine on Count II, and one (1) year in the county jail and a $1,000 fine on Count III. The Honorable Michael DeBerry, Associate District Judge, imposed judgment and sentence accordingly. Mr. Darity appeals.

FACTS

¶ 2 On October 12, 2006, state and federal law enforcement agents executed a search warrant on Appellant's mobile home and a nearby shop building located about 1,400 feet from a public school in Eagletown, Oklahoma. The searchers discovered and confiscated over 152 grams of what proved to be methamphetamine in various containers, three sets of digital scales, more than three pounds of marijuana in various packaging, 24 grams of cocaine, and over $14,000.00 in cash.

¶ 3 For safety reasons, the agents who obtained the search warrant planned in advance to conduct the search when Appellant was away from the residence. In connection with this plan, they knew Appellant had reported a break-in at his business. On the day of the search, a property crimes investigator arranged to meet Appellant at his place of business to discuss the break-in investigation. When Appellant arrived at the business for the meeting, the property crimes investigator signaled the waiting search team. An investigator then went to the door of Appellant's mobile home, announced "Police. Search warrant," and knocked. Hearing no response inside, he forcibly entered the residence. Agents then made an initial protective sweep of the premises and secured the nearby shop. Appellant's wife soon arrived at the residence, along with her young child. An officer informed Mrs. Darity that he had a search warrant for the residence and that she was not under arrest at that time. Police then searched and detained Mrs. Darity and continued their search of the premises.

¶ 4 According to the agents' plan, if they developed probable cause to arrest Appellant during the search they intended to arrest him immediately at his place of business. During the initial sweep of the residence, the agents discovered marijuana in plain view. Two agents then left the residence, drove the short distance to Appellant's business, and arrested him for possession of marijuana. In the search of his person incident to arrest, the agents seized $960 from his person as evidence. After being advised of his Miranda rights, Appellant confessed that the drugs and paraphernalia in the house belonged to him, telling the agents to "put it all on me." Appellant was transported to the McCurtain County Jail. During the remaining search of the premises, the agents recovered the trafficking quantity of methamphetamine, the cocaine, digital scales, and cash. Mrs. Darity was subsequently released and never charged. Appellant denied possession of the contraband in his testimony at trial.

ANALYSIS

¶ 5 The Court granted oral argument in this case, which was largely devoted to a consideration of Appellant's Proposition Five.¹ In that claim, Appellant argues that the search party violated the requirements of 22 O.S.2001, § 1227 by failing to personally serve him with a copy of the search warrant, and the resulting evidence must be suppressed. Appellant filed a motion to suppress the evidence on this ground in the District Court. After hearing argument of counsel, the District Court denied the motion. We review a ruling on a motion to suppress evidence for abuse of the District Court's discretion. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141-42. The burden of proving the invalidity of a search warrant rests on the accused who seeks to suppress the resulting evidence. Daniels v. State, 1967 OK CR 165, ¶¶ 4-6, 441 P.2d 494, 495-96. Although defense counsel presented argument to the Court concerning the alleged failure to serve Appellant with a copy of the warrant, the record contains no actual evidence to support the claim. In fact, the search warrant return filed after the search recites that the same was served on Appellant. As the burden to produce any contrary evidence was Appellant's, we have no basis on this record to say that the District Court abused its discretion in denying the motion to suppress.

¶ 6 We find it appropriate to also discuss Appellant's argument that the agents' diversionary tactic of having Appellant meet another officer elsewhere, and executing the warrant when Appellant was away from the scene, amounted to an unlawful evasion of the personal service requirements of section 1227 and invalidated the search. In answer to this question, we first turn to the language of the statute itself:

A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.

We faced a similar argument concerning the proper service of warrants and section 1227 in Pennington v. State, 1956 OK CR 98, 302 P.2d 170. In that case, officers searched a residence when the occupants were not present and left a copy of the search warrant inside the residence on a television set. The defendants found the warrant on their return and moved to suppress the evidence due to a violation of section 1227.

¶ 7 The appellants in Pennington argued that because section 1227 made "no provision as to what constitutes service of the search warrant," the Court must apply a strict construction under which personal service on the defendant is required. Pennington, at ¶ 9, 302 P.2d at 173. We rejected such an absolute rule, for reasons that bear repeating here:

We are of the opinion that to so hold would constitute a narrow and strained construction since all the constitution requires is that the search and seizure be reasonable. If such were not the case, reasonable efforts of the officers to enforce the law against the possession of contraband would oftentimes convert what in fact is a reasonable search and seizure into an unreasonable one by judicial construction. In the absence of express provisions in 22 O.S. 1951 § 1227 as to the method of service of a search warrant, we are therefore limited only by the constitutional inhibition against unreasonable searches and seizures. What is reasonable is what is ordinarily fair and if the manner of service is such as does not subject the defendant to unreasonable treatment, the same will meet the requirements of both the law and justice.

Id. at ¶ 10, 302 P.2d at 173-74.

¶ 8 The Court in Pennington found the language of section 1227 ambiguous regarding the proper manner of service, and turned to another legislative source, the language of now-repealed 37 O.S.1951, § 84, which set forth a more specific procedure for the service of search warrants involving violations of the prohibitory act:

A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.

37 O.S.1951, § 84 (repealed, 1959). The Court then read sections 1227 and 84 together as "an exposition of legislative policy," from which it derived the rule that "where personal service is possible the same should be made and substituted service should not be resorted to." Pennington, at ¶ 12, 302 P.2d at 174. Based upon this construction of the statutes, the Court held in Pennington that service of a search warrant by leaving a copy of the warrant in an unoccupied dwelling, where it was found by the defendant after the search was concluded, did not violate the defendant's statutory right to personal service under section 1227. Id. at ¶ 16, 302 P.2d at 175.

¶ 9 Pennington demonstrates that personal service of a search warrant has never been a condition precedent to a reasonable search under the Oklahoma Constitution or any act of the Oklahoma Legislature. Pennington's rule of personal service "where possible" arises solely from a statutory interpretation of this Court based, at least in part, on the language of a repealed statute. The proper limits of this rule are shown in cases decided before and after Pennington, in which the Court historically has required personal service only where officers executing the warrant found some person present within and in charge of the premises to be searched at the time the search warrant is executed. Borchers v. State, 1936 OK CR 49, 59 Okl.Cr. 116, 56 P.2d 922 (officers searching unoccupied residence violated statutory service requirement by failing to post copy of the warrant on the door); Thompson v. State, 1949 OK CR 78, 89 Okla.Crim. 383, 208 P.2d 584 (service on eighteen year-old boy who was in charge of premises complied with section 1227); Walker v. State, 1950 OK CR 118, 92 Okla.Crim. 247, 222 P.2d 766 (failure to...