Dodson v. State

• Citation: 150 P.3d 1054,2006 OK CR 32
• Decision Date: 26 July 2006
• Docket Number: No. F 2005-179.,F 2005-179.
• Parties: Michael E. DODSON, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1054

150 P.3d 1054

2006 OK CR 32

Michael E. DODSON, Appellant v. STATE of Oklahoma, Appellee.

No. F 2005-179.

Court of Criminal Appeals of Oklahoma.

July 26, 2006.

An Appeal from the District Court of Tulsa County; The Honorable Tom C. Gillert, District Judge.

John David Echols, Attorney at Law, Tulsa, OK, attorney for defendant and appellant at trial and appeal.

Brian Kuester, Asst. District Attorney, Tulsa, OK, attorney for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, Attorneys for State on appeal.

SUMMARY OPINION

C. JOHNSON, Judge.

¶ 1 Appellant, Michael E. Dodson, was charged in Tulsa County District Court, Case No. CF 2003-4566, with Trafficking Illegal Drugs (Methamphetamine), in violation of 63 O.S.Supp.2004, § 415(B) (Count 1), Failure to Obtain Drug Tax Stamp, in violation of 68 O.S.2001, § 450 (Count 2), and Unlawful Possession of Marijuana (misdemeanor), in violation of 63 O.S.Supp.2004, § 2-402(B)(2) (Count 3). Jury trial was held before the Honorable Tom Gillert, District Judge, on January 12th-13th, 2005. The jury found Appellant guilty on all three counts and set punishment at four (4) years imprisonment and a one thousand dollar ($1,000.00) fine on Count 1, imposed a two hundred dollar ($200.00) fine on Count 2, and imposed a five hundred dollar ($500.00) fine and six months imprisonment on Count 3. Appellant was sentenced on February 22, 2005, in accordance with the jury's verdict. Judge Gillert ordered Counts 1 and 3 be served concurrently. Appellant then filed this appeal.

¶ 2 Mr. Dodson raises four (4) propositions of error:

1. The Oklahoma Constitution prohibits the issuance of a warrant based upon future contingent events, making the "house warrant" illegal, and the fruits of its execution inadmissible at trial;

2. Oklahoma statutes prohibit the issuance of a warrant based upon future contingent events, making the "house warrant" illegal, and the fruits of its execution inadmissible at trial;

3. The Oklahoma Constitution prohibits overbroad, general warrants, making the "house warrant" illegal, and the fruits of its execution inadmissible at trial;

4. Good faith cannot save this anticipatory general warrant, making the "house warrant" illegal, and the fruits of its execution inadmissible at trial.

After thorough consideration of the entire record before us on appeal, including the Original Record, the transcripts, exhibits, and briefs of the parties, we find Mr. Dodson's convictions and sentences must be reversed and remanded with instructions to dismiss for the reasons set forth below.

¶ 3 On September 29, 2003, a Tulsa police drug interdiction officer noticed a suspicious package at the Federal Express facility in Tulsa, Oklahoma. After the officer's drug dog "hit" on the package, the officer obtained a search warrant to open the package. Upon opening the package, the officer found the package contained a manila envelop with Mike Dodson's name on it. Inside the manila envelope was some rolled up tissue paper. Inside the rolled up tissue paper was a baggie. Inside the baggie was approximately one ounce of white crystal substance which field-tested positive for methamphetamine.¹

¶ 4 The officer prepared an affidavit for an anticipatory search warrant requesting to search Mike Dodson's residence upon delivery of the package and presented it to a Tulsa County magistrate. After the officer obtained a search warrant, he dressed as a Federal Express driver and delivered the package to Michael Dodson's address. Dodson answered the door, signed for the package and took it inside his residence.

¶ 5 Tulsa police officers served the search warrant about fifteen (15) minutes later. During the search, they located the baggie containing the white crystal substance and a small quantity of marijuana in the house. No tax stamps were found on either the marijuana or the methamphetamine. The amount of methamphetamine recovered from Dodson's residence weighed 21.08 grams; the amount of substance retained from the package which was not delivered to Dodson weighed 6.65 grams.

¶ 6 In Proposition One, Mr. Dodson contends the Oklahoma Constitution prohibits the issuance of a warrant based upon future contingent events, making the "house warrant" illegal, and the fruits of its execution inadmissible at trial.² This Court has not previously addressed the constitutionality of anticipatory search warrants under our state constitution, but recently the United States Supreme Court, in United States v. Grubbs, ___ U.S. ___, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) upheld the constitutionality of anticipatory search warrants under the Fourth Amendment to the United States Constitution.³

¶ 7 Art.2, § 30 of the Oklahoma Constitution provides:

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.

The language of Article II, Section 30 is "almost an exact copy of the fourth amendment of the Constitution of the United States" and while the language is not in all respects the same in the two provisions, the substance is identical. Sloan v. Sprouse, 1998 OK CR 56, ¶ 16, 968 P.2d 1254, 1258; U.S. Const. amend. IV.

¶ 8 Nothing in the text of Article II, Section 30 requires a showing that the evidence must be in the place to be searched at the time the warrant issues. On the contrary, the provision does not say anything about whether a finding of probable cause can or cannot be based upon the anticipation of some future event. Accord Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655, 662 (2000). Nothing in the plain language of Article II, Section 30 prohibits the issuance of an anticipatory search warrant and they do not run afoul of plain language of Oklahoma's constitution.

¶ 9 While anticipatory search warrants may not run afoul of the United States Constitution or the Oklahoma Constitution, we find merit to Mr. Dodson's second proposition that Oklahoma statutes prohibit the issuance of a warrant based upon future contingent events. Sections 1221-1238 of Title 22 outline the requisites for the issuance of a search warrant. State v. McElwee, 1999 OK CR 2, ¶ 17, 972 P.2d 876, 880. "Absent specific statutory authority for a separate procedure prior to the filing of a complaint in a criminal case, the State's ability to search for and seize evidence of a crime is limited to the procedure set forth in 22 O.S.1981 § 1221, et. seq., setting forth the requisites of a search warrant." Isaacs v. District Court of Oklahoma County, 1991 OK CR 110, ¶ 18, 818 P.2d 1247, 1249.

¶ 10 In the past, this Court has strictly construed the statutory language of Section 1221, et. seq. See e.g. Merry v. State, 1988 OK CR 278, ¶ 6, 766 P.2d 1377, 1379, overruled on other grounds in Langham v. State, 1990 OK CR 9, ¶ 6, 787 P.2d 1279, 1281 (finding search warrant invalid because the plain language of 22 O.S. § 1223, requiring a search warrant be supported by affidavit, was not followed). The plain language of Title 22, Section 1222 requires that the object of the search be currently in the possession of the person or at the location to be searched. It provides that a search warrant may be issued and property seized "upon any of the following grounds:"

First: When the property was stolen or embezzled, in which case it may be taken on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be.

Second: When it was used as the means of committing a felony, in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or of any other person in whose possession it may be.

Third: When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered, in which case it may be taken on the warrant from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it.

Fourth: When the property constitutes evidence that an offense was committed or that a particular person participated in the commission of an offense.

22 O.S.2001, § 1222.

¶ 11 The language used in "First," "Second," and "Fourth" subsections clearly presuppose a crime has already been committed which is shown by the use of the past tense in those subsections — i.e. "when the property was stolen or embezzled . . .", "when it was used as the means of committing a felony . . .", and ". . . that an offense was committed or that a . . . person participated in . . .". The language in the "Third" subsection is plain and clear, and is in the present tense — a warrant may be issued when the property "is in the possession of" — which specifically requires the property to currently be in the possession of the person.

¶ 12 The wording of the "Third" subsection of Section 1222 is applicable to this case. The anticipatory search warrant was issued based upon an affidavit which claimed the defendant

". . . has placed the following described property for concealment, does now unlawfully, illegally, knowingly and willfully keep, and does unlawfully have in his possession and under his control certain dangerous substances . . ."

Although the affiant expected that certain events (Dodson's possession of illegal substances) would occur after the issuance of the warrant, it is that future event...