Embree v. State

• Decision Date: 01 September 1971
• Docket Number: No. A--15455,A--15455
• Citation: 488 P.2d 588
• Parties: James Ray EMBREE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 588

488 P.2d 588

James Ray EMBREE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15455.

Court of Criminal Appeals of Oklahoma.

Sept. 1, 1971.

Syllabus by the Court

1. Information that a person has been 'involved with marihuana' without further details and specifics does not constitute the requisite reasonable or probable cause necessary for an officer to believe a felony has been committed authorizing an arrest for possession of marihuana without a warrant where the officer does not see the offense committed in his presence.

2. If based upon hearsay information of a reliable informant, affidavit for search warrant must contain positive language, under oath, setting forth in detail why the informant is deemed to be reliable in order that the magistrate can judicially determine whether the informant is, in fact, reliable, and should further set forth in detail whether the informant himself observed the violation, or the presence of contraband, articles used in commission of crime, or fruits of crime, upon premises to be searched.

3. A search cannot be made valid by an unlawful arrest or where executed under an illegal search warrant.

4. The search of an automobile requires a proper search warrant unless it is simultaneous to a lawful arrest limited to the reach of the arrestee.

An appeal from the District Court of Stephens County; Arthur J. Marmaduke, Judge.

James Ray Embree was convicted of the crime of Possession of Marihuana; sentenced to a term of Three Years in the penitentiary; and appeals. Reversed and remanded with instructions to dismiss.

Tom A. Lucas, Norman, for plaintiff in error.

Larry Derryberry, Atty. Gen., Paul Ferguson, Asst. Atty. Gen., Joe H. Humphrey, Dist. Atty., Sixth Dist., for defendant in error.

NIX, Judge:

Plaintiff in error, James Ray Embree, hereinafter referred to as defendant, was tried and convicted by jury verdict for the crime of Possession of Marihuana in the District Court of Stephens County, Case No. 69--10, with punishment fixed at Three Years imprisonment. Judgment and sentence was imposed on May 9, 1969, in accord with the verdict, and this appeal perfected therefrom.

The evidence establishes that on January 21, 1969, at approximately 2:30 P.M., the defendant was observed at the A & W Root Beer Stand in Duncan, Oklahoma, by two Duncan police officers who parked their car near where defendant was seated in his parked car. One of the officers went over to the defendant and without a warrant placed him under arrest for Possession of Marihuana. After the arrest, the officer remained in defendant's car while defendant finished a hamburger. Then the defendant accompanied by officer, drove his car, followed by the other officer, to his mother's house and then on to the county court house where defendant was booked; after which defendant's car remained parked at the court house. Subsequently, the officers obtained a search warrant for defendant's car which was served on defendant and his mother, who had title to the car. Pursuant to the search warrant, the car was searched at about 5:00 P.M., revealing two hand-rolled marihuana cigarettes. It was this evidence admitted over objection upon which defendant was convicted.

It is defendant's first contention that his arrest was unlawful. Secondly, the defendant contends the search was unlawful since the affidavit for warrant was legally inadequate to support issuance of the warrant. Thus, defendant argues that the evidence supporting his conviction was illegally obtained and rendered inadmissible.

As to the arrest, the Oklahoma Statutes provide that a peace officer may arrest without a warrant for an offense in his presence, on a charge made upon reasonable cause, or for a felony committed not in his presence when the officer 'has reasonable cause for believing the person arrested to have committed it.' 22 O.S.1961, § 196. In the instant case, there was no arrest warrant, and no charge had been filed against defendant, ¹ and there was no offense visibly committed in the officer's presence. Thus, to be legal, the arrest was because the officer had reasonable cause for believing defendant had committed a felony.

Concerning such an arrest, this Court in Welch v. State, 30 Okl.Cr. 330, 236 P. 68, cited with approval this arrest standard:

'If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense had been committed, it is sufficient. * * * If a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts; or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of a felony, the arrest is not unlawful.'

'But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts * * * which in the judgment of the court would make his faith reasonable.' 236 P. at 70.

In Pamplin v. State, 21 Okl.Cr. 136, 205 P. 521 (1922), it was held:

'Even where officers or others have authority to make arrests upon belief that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that belief. Belief without cause can never be an excuse for such action.'

Thus, we must consider the facts relied upon as reasonable and probable grounds for the officers' belief that defendant had committed a felony. On defendant's motion to quash and suppress the evidence the arresting officer, when asked why he arrested the defendant, stated: 'The reason I was looking for him was, or--information was he was involved in some house burglary and marihuana.' The officers testified they did not see defendant do anything unusual or unlawful and that 'everything was normal and legal.' Thus, the sole basis, as disclosed by the record, for the arrest was the officers' information that defendant was 'involved' in some marihuana. The burglary remark was disregarded. Such facts without more evidence do not constitute reasonable or probable cause for the belief that defendant had committed a felony. Such information is more akin to an investigative lead or tip then probable cause to believe defendant had committed a felony. The information was general in nature without specification as to when or where defendant was in possession and without indication as to the source. Therefore, the evidence does not support an arrest without a warrant.

However, an unlawful arrest does not affect the jurisdiction of the court, nor preclude defendant's trial, and is not grounds to quash the information. Harrison v. State, Okl.Cr., 461 P.2d 1007. Accordingly, we must consider defendant's second contention that the search was unlawful rendering the evidence supporting conviction inadmissible. More precisely, was the affidavit for the search warrant legally competent to justify issuance.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court ruled that to be constitutionally competent an affidavit for search warrant based on information of a 'reliable informant' must offer the magistrate reasons to support the claim of the informant and that his information is credible and reliable. This Court has stated the rule in Leonard v. State, Okl.Cr., 453 P.2d 257 (1969), and Sturgeon v. State, Okl.Cr., 483 P.2d 335 (1971), as follows:

'If based upon hearsay information of a reliable informant, it (affidavit for search warrant) must...