Gomez v. State, F-2005-526.

• Citation: 168 P.3d 1139,2007 OK CR 33
• Decision Date: 05 September 2007
• Docket Number: No. F-2005-526.,F-2005-526.
• Parties: Rene GOMEZ, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

168 P.3d 1139

2007 OK CR 33

Rene GOMEZ, Appellant v. STATE of Oklahoma, Appellee.

No. F-2005-526.

Court of Criminal Appeals of Oklahoma.

September 5, 2007.

[168 P.3d 1140]

Josh T. Welch, Ogle & Welch, P.C., Oklahoma City, OK, Attorney for Defendant.

J. David Ogle, Josh T. Welch, Ogle & Welch, P.C., Oklahoma City, OK, Attorneys for Appellant.

E.A. Gates, Office of District Attorney, Kingfisher, OK, Attorney for State.

W.A. Drew Edmondson, Attorney General of Oklahoma, Theodore M. Peeper, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.

OPINION

JOHNSON, J.

¶ 1 Appellant Rene Gomez was tried in a non-jury trial in the District Court of Kingfisher County before the Honorable Susie Pritchett in Case No. CF-2004-19 for Possession of a Controlled Dangerous Substance (Methamphetamine) (63 O.S.2001, § 2-402), Unlawful Possession of Paraphernalia (63 O.S.2001, § 2-405), and Obstructing an Officer (21 O.S.2001, § 540). After the district court denied Gomez's motion to suppress certain evidence, Gomez stipulated that the evidence produced by the State at the preliminary hearing was sufficient to sustain the State's burden of proof. As a result of that stipulation, the district court found Gomez guilty on all three counts.

¶ 2 The district court sentenced Gomez to five years in prison on the methamphetamine possession count. The district court also ordered that when space became available, Gomez would be sent to the Bill Johnson Correctional Center in Alva, Oklahoma, and directed that when he successfully completed the "RTP"¹ program there, "the balance of the sentence to incarceration shall be suspended, under the supervision of the Department of Corrections for two (2) years" (Judgment and Sentence at 1).² The district court sentenced Gomez to one year each in the county jail on the paraphernalia and obstruction counts and further ordered the sentences on all three counts to run concurrently. From this judgment and sentence, Gomez appeals and advances two propositions of error:

(1) The evidence seized as a result of the warrantless search of his car should have been suppressed by the trial court because the search was not supported by probable cause or a showing of exigent circumstances; and

(2) The five year sentence, even with its conditional partial suspension, is excessive.

¶ 3 On May 16, 2004, around 1:00 a.m., Gomez was stopped by Officer Burpo of the Kingfisher County Police for swerving across the center yellow line twice while traveling on Highway 81. As Officer Burpo asked Gomez for his license and registration, he noticed the smell of alcohol and saw two six-pack alcoholic beverage containers inside Gomez's car. The visible containers were unopened, but one container was missing.³ Officer Burpo directed Gomez to get out of the vehicle because he wanted to search the car for an open container. Officer Burpo escorted Gomez to the front of his patrol car and began to search the immediate driver's area of Gomez's car. Before Officer Burpo began searching, Gomez clearly stated that he did not consent to the search. As Officer Burpo searched the driver's immediate area, he noticed the center console lid was ajar and opened it. Inside the console was an open bottle of alcohol. Underneath the bottle Burpo found a glass pipe, a small amount of methamphetamine, and a digital scale.

I. Warrantless Search

¶ 4 This case raises two issues: (1) whether the smell of alcohol and under the circumstances, the absence of an alcoholic beverage container provide sufficient probable cause for a warrantless vehicle search; and (2) whether a warrantless vehicle search must be supported by a showing of exigent circumstances as well as probable cause. Gomez contends that the district court erred by denying his motion to suppress the drug and drug paraphernalia evidence that was seized as a result of the search of his car. According to Gomez, the evidence seized during the search of his car should have been suppressed because Officer Burpo lacked probable cause necessary to conduct a warrantless search, and there were no exigent circumstances requiring an immediate roadside search of his vehicle.

¶ 5 We review a trial court's denial of a suppression motion for an abuse of discretion. State v. Goins, 2004 OK CR 5, ¶ 7, 84 P.3d 767, 768. When reviewing a trial court's ruling on a motion to suppress evidence based on a complaint of an illegal search and seizure, we defer to the trial court's findings of fact unless they are not supported by competent evidence and are therefore clearly erroneous. Seabolt v. State, 2006 OK CR 50, ¶ 5, 152 P.3d 235, 237. We review the trial court's legal conclusions based on those facts de novo. Id.

A. Probable Cause

¶ 6 The Fourth Amendment to the United States Constitution and Article 2, § 30 of the Oklahoma Constitution both proscribe unreasonable search and seizures.⁴ Under both constitutions, an officer is justified in stopping a vehicle if he has probable cause to believe a driver is violating some traffic law. Dufries v. State, 2006 OK CR 13, ¶ 9, 133 P.3d 887, 889. Officer Burpo saw Gomez cross over the yellow centerline twice while traveling on Highway 81. This observation constituted sufficient cause to stop Gomez, and as Gomez concedes, his initial detention was therefore justified. Nevertheless, despite conceding the validity of the traffic stop, Gomez contends that the smell of alcohol and a missing container from an otherwise undisturbed six-pack of alcoholic beverages did not constitute sufficient probable cause for a warrantless search of his car.

¶ 7 In Hallcy v. State, 2007 OK CR 2, ¶ 10, 153 P.3d 66, 68-69, we held in a slightly different context that the "test for judging the existence of probable cause is whether a reasonably prudent police officer, considering the totality of the circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed." We explained in Hallcy that "probable cause is a flexible, common-sense standard, requiring that the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or useful as evidence of a crime." Id. Logically then, probable cause sufficient to justify a warrantless search of a vehicle exists if an officer reasonably believes the vehicle contains contraband or evidence of a crime. Under this standard, based on the centerline swerving, the smell of alcohol, and the missing bottle, Officer Burpo's belief that Gomez's car contained evidence of a crime (i.e., an open alcohol container) was reasonable. Officer Burpo therefore possessed sufficient probable cause to search Gomez's car for an open container of alcohol.⁵ Cf. Lozoya v. State, 1996 OK CR 55, ¶¶ 34-36, 932 P.2d 22, 33 (holding that officer who smelled odor of marijuana while approaching van validly stopped for failure to dim headlights had probable cause to search for contraband); Cole v. State, 1986 OK CR 150, ¶¶ 9-10, 728 P.2d 492, 494 (holding that officer who smelled burning marijuana while approaching defendant's vehicle stopped for tail light violation had probable cause to search for contraband).⁶

¶ 8 Gomez contends, however, that regardless of whether Officer Burpo legitimately searched for and seized an open container of alcohol, the contraband drugs and paraphernalia that were ultimately found in the vehicle's center console underneath the open container were the fruit of an unlawful search. According to Gomez, once Officer Burpo removed the bottle from the center console there was no further justification "to rummage around" in the console searching for contraband (Appellant's Reply Brief at 5). We disagree. Officer Burpo's warrantless search of the interior of Gomez's car for an open container of alcohol was lawful because it was supported by probable cause, and, because the officer reasonably believed there might be an open container in the car, he was entitled to search the entire interior of the car, including the center console of the front seat. See Wyoming v. Houghton, 526 U.S. 295, 300-01, 119 S.Ct. 1297, 1300-01, 143 L.Ed.2d 408 (1999)(relying on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), to hold that if probable cause justifies search of lawfully stopped vehicle, it justifies search of every part of vehicle that may conceal object of search including all containers within vehicle without showing of individual probable cause for each container);⁷ Castleberry v. State, 1984 OK CR 30, ¶ 14, 678 P.2d 720, 723 ("[i]f an officer has probable cause to believe there is contraband somewhere in the car, but he does not know exactly where, he may search the entire car as well as any containers found therein"). When the officer found the open container and removed it from the console, he was lawfully positioned to observe the methamphetamine, pipe, and digital scale when they came into plain view with removal of the bottle that had been sitting on top of them. The drug-related items were found in plain view during a valid warrantless search. They were lawfully seized. Cf. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968)(finding that once door to vehicle had been lawfully opened, registration card in plain view was legally seized); State v. Baxter, 1974 OK CR 198, ¶ 5, 528 P.2d 347, 349 (holding that officer lawfully in any place may, without obtaining warrant, seize from motor vehicle, any item which he observes in plain or open view, if he has probable cause to believe item is contraband, or evidence of crime).

B. Exigent Circumstances

¶ 9 We now turn to Gomez's claim that the warrantless search that arose from the initial investigatory encounter was unlawful due to a lack of exigent circumstances. Gomez contends that Article 2, § 30 of the Oklahoma Constitution requires exigent circumstances in addition to probable cause....