Gaston v. State

• Decision Date: 02 July 1969
• Docket Number: No. A--15007,A--15007
• Citation: 457 P.2d 807
• Parties: Gary L. GASTON, 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 807

457 P.2d 807

Gary L. GASTON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15007.

Court of Criminal Appeals of Oklahoma.

July 2, 1969.

Syllabus by the Court

Appeal from the District Court of Woodward County; J. Russell Swanson, Judge.

Gary L. Gaston was charged, tried and convicted of the crime of Possession of marijuana, was sentenced to serve one year imprisonment in the State Penitentiary, and appeals. Affirmed.

Miskovsky, Sullivan, Embry, Turner & Gregg, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Dale F. Crowder, Phil Scott, Asst. Attys. Gen., for defendant in error.

BUSSEY, Judge.

Gary L. Gaston, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Woodward County, with the crime of Possession of Marijuana, and from the judgment and sentence fixing his punishment at one year imprisonment in the State Penitentiary, he appeals.

Briefly stated, the pertinent facts are that at 8:00 p.m. on the 3rd day of February, 1968, two of the State's witnesses observed the defendant in a black Cadillac, bearing California license plates at the Sonic Drive-In in Woodward, Oklahoma, and heard him talking to a young man about marijuana. The gist of the conversation was that he (the defendant) was on marijuana and that the youth should try it sometime. These witnesses reported the incident to the police, gave them a description of the defendant and the automobile, and the defendant was later stopped in the downtown district of Woodward by officers who observed a pistol in the open glove compartment.

The arrest was made at approximately 9:00 p.m. on a Saturday evening, in a public thoroughfare where the traffic was heavy and the lighting poor. The appearance of the defendant, whose hair was long and uncut and wearing a bushy beard, together with the traffic conditions, caused a crowd to gather and rendered it impracticable to conduct a thorough search of the automobile at the scene. The automobile was locked and the defendant was taken to the police station where he refused to answer routine questions, swallowed an unknown substance, and a struggle ensued. The officers placed the defendant in a cell, obtained an invalid search warrant, brought the automobile to the police station, where they continued the search and found marijuana in the trunk of the car. The lapse of time between the arrest and the completion of the search was approximately one and one-half hours.

Since defendant conceded the validity of the arrest at the trial, and does not raise this issue on appeal, we will deal with the single assignment of error urged on appeal, viz.:

'That the search of defendant's automobile was too remote in time and place to have been incidental to arrest and therefore search without warrant failed to meet test of reasonableness under the Fourth Amendment and Article II, Sec. 30, Okl.Const. rendering evidence obtained as a result thereof inadmissible.'

We believe that this question is thoroughly and comprehensively dealt with in the excellent brief of the State, which we adopt in pertinent part:

The leading Supreme Court decision which held the search of motor vehicles without a warrant to be reasonable if made upon probable cause was, as the name of the rule indicates and as pointed out by defendant in his brief, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The question in that case concerned the admissibility in evidence of contraband liquor which had been seized by Federal prohibition agents after the interception and search of an automobile without a warrant on a public highway. Posing as buyers of whiskey, the agents had arranged to meet the defendants at a later date to make a purchase and had noted the license number and description of their automobile. The defendants failed to meet the officers as planned, but several months later they were observed traveling a highway in what appeared to be a heavily laden vehicle. The officers pursued the vehicle, stopped it, and conducted an extensive search which disclosed a large quantity of liquor concealed behind the upholstery of the seats.

On appeal the Supreme Court upheld the conviction of the defendants and propounded what has since become the principal rule governing the search of motor vehicles without warrant, namely, that a search may lawfully be made where there is probable cause to believe that an automobile or other conveyance contains that which by law is subject to seizure. The Court emphasized that this authority to search is not conditioned on the right to arrest. Rather, as quoted from page 159, 45 S.Ct. page 287:

'* * * ((I)t is) dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.'

In support of this exception to the general warrant requirement, Chief Justice Taft, speaking for the majority, noted that the fourth amendment safeguards had long been construed (page 153, 45 S.Ct. page 285):

'* * * (A)s recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.'

The Court derived the search authority, in part, from the provisions of the National Prohibition Act which had empowered officers who discovered intoxicating liquors to seize both the liquor and the vehicle transporting it. While the statute expressly prohibited the search of a private dwelling without a warrant, it was silent as to the necessity for obtaining warrants before searching motor vehicles. The legislative history of the Act, the Court said, showed that Congress intended to provide for searches without warrant and that the statute was entitled to a strong presumption of constitutionality.

Thereafter, in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, the Supreme Court upheld a warrantless search of a vehicle made under the Liquor Enforcement Act of 1936. Federal Agents were parked at a point near the Missouri-Oklahoma border, in an area where there had been a great deal of illegal liquor traffic. One of the officers knew the defendant to have a reputation for hauling liquor, since he had arrested him on that charge several months earlier; moreover, he had twice seen him loading liquor into a car or truck during the preceding six months. Consequently, when the agents saw the defendant's heavily loaded automobile pass them on the highway, they gave chase and forced it to the side of the road. A search of the car revealed a quantity of untaxed liquor in the trunk, and on the basis of this evidence Brinegar was convicted of importing liquor into a 'dry' state. On review, the Supreme Court sustained the legality of the search as having been made on probable cause, despite the fact that it had not been based on any specific statutory powers. Justice Jackson dissented, protesting that the decision dispenses with the warrant 'as a matter of judicial policy' and extends the Carroll rule to the enforcement of all Federal offenses. Nevertheless, the principle has been referred to approvingly by the Supreme Court in several subsequent opinions and by numerous Federal and State tribunals in a variety of search situations, none of which could be said to be grounded on congressional authorization. See Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Ventresca v. United States, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Neither is there any reason to assume that the type of offense is relevant. Although Carroll has been used almost exclusively in matters involving the transportation of per se contraband, such as narcotics, counterfeit money, and bootleg liquor, it would seem that its rationale extends as well to fruits and instrumentalities of crime. Each is a class of property which has long been held to be seizable under the terms of the fourth amendment. The only departure which that doctrine made from existing rules of search and seizure law was to permit a search without warrant where conditions made it impracticable to secure one.

A recurrent question dividing the courts is whether the automobile is still mobile, for purposes of Carroll, once it has been parked and the driver is in custody, particularly when the keys have been surrendered to the arresting officer. Some decisions hold that the principle is inapplicable under these circumstances on the reasoning that:

'* * * With (the defendant) already under arrest and the agents in possession of his keys to the locked car, there was no danger of movement of the car or loss of the evidence.'

Conti v. Morgenthau, D.C., 232 F.Supp. 1004, 1008 (1964); United States v. Kidd, D.C., 153 F.Supp. 605 (1957). This position is sound only if it can be said that the Carroll rationale was aimed solely at preventing the operator of the car from removing it or destroying evidence in the vehicle, without regard for the fact that others might be similarly inclined. But it is doubtful that any such limitation was intended by the Court. Obviously, the vehicle can be moved or its contents destroyed by other persons with or without a duplicate set of keys, unless of course the officers are able to safeguard such property until a warrant can be secured and executed.

The better rule is that the right to search is not lost simply because the operator of the car has been placed in police custody. A case in point is United States v. Haith, 4 Cir., 297 F.2d 65 (1961). In this instance, Federal agents followed the defendant, a known bootlegger, for the purpose of...