Grigsby v. State
| Decision Date | 03 May 1972 |
| Docket Number | No. A--16238,A--16238 |
| Citation | 496 P.2d 1188 |
| Parties | Nora GRIGSBY, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Nora Grigsby, hereinafter referred to as defendant, was convicted in the District Court of Muskogee County, Case Number CRF 69--51, of first degree arson and sentenced to five (5) years imprisonment. Judgment and sentence was imposed on June 24, 1970, and this appeal perfected therefrom.
Specifically, it was charged that on February 17, 1969, the defendant did, by use of an explosive device and substance, cause an explosion which damaged a dwelling house located in Muskogee County at which time the dwelling was occupied by Faye Shaw. The evidence established that on February 17, 1969, a dynamite explosive device was detonated at the home of Faye Shaw, ripping a hole approximately one-foot in diameter in the foundation of the house and shattering window glass in the dwelling. The explosion, located just under the window of Miss Shaw's bedroom, awakened Miss Shaw who thereupon fled the house.
After the explosion Marion Smith, who lived across the street from Miss Shaw's home, ran out and observed a brown Ford Fairlane 500 driving past the scene. According to Miss Shaw, she had been harassed by threatening telephone calls by a person identifying herself as Nora Grigsby, the defendant. Three weeks prior to the explosion Miss Shaw had given an automobile license tag number to another neighbor, Mr. Cecil Maher. When the police arrived on the scene, Mr. Maher gave this license number to the officers. One of the officers testified that upon investigating the scene the man advised him 'it was an Arkansas tag, a 1969 Arkansas.' The officers at the scene radioed the license number and car description and indicated the car might be traveling south on Highway 64. Shortly thereafter Officer Bradley, at the scene of the explosion, was notified that the car had been stopped at Warner, a community south of Muskogee located on the route to Ft. Smith, Arkansas.
Officer Bullard, City Marshall of Warner, testified that he stopped the defendant's car as fitting the description radioed by the Muskogee Police Department, and held the defendant in custody until the Muskogee Officers arrived. Upon the arrival of the Muskogee Officers, Officer Bradley shined his flashlight into the defendant's car where he saw dynamite fuses lying in the front seat and on the floorboard of the car. Thereupon the defendant and her car were taken into custody by the Muskogee Officers.
Upon their arrival at the Muskogee Police Station, the defendant was read a notification of her rights which she signed. Subsequently, without interrogation, the defendant began crying and repeating that she had bombed the house because 'they had done her so bad.'
At the trial George Ainsworth testified that he was a dynamite dealer in Ft. Smith, Arkansas. He related that on February 15, 1969, a lady identifying herself as Dorothy White purchased six sticks of dynamite and caps from him. Ainsworth identified this purchaser as the defendant. A search, pursuant to a search warrant issued by Arkansas authorities, revealed three sticks of dynamite in the rear bedroom of the defendant's apartment in Ft. Smith, Arkansas.
The defendant testified that she was a nurse employed in a Ft. Smith, Arkansas hospital. She stated that she had known Fay Shaw since 1967, having met her at a nursing home where she had cared for a Mrs. Ethel Khilling, the mother of William Khilling. Both defendant and Miss Shaw had dated William Khilling. The defendant testified that on the evening of February 16, 1969, she had driven her car to Muskogee at the request of Gladys Sallee, so that Miss Sallee might have a date with a Bob Newman. Upon meeting Mr. Newman in Muskogee, the two women transferred Miss Sallee's luggage to Mr. Newman's car and the three then drove around town in Mr. Newman's car. Upon returning to her own car around 12:30 A.M. she noticed a soap powder box and a pair of boots in her car which she thought someone had put there by mistake. She did not remove the items, but proceeded home on Highway 64 towards Ft. Smith, where she was arrested near Warner, Oklahoma. The defendant expressly denied purchasing any dynamite, placing any dynamite in her own apartment, and denied planting any type of a bomb at Fay Shaw's house.
Two sisters of the defendant testified that the defendant had been physically ill, mentally disturbed, and emotionally upset.
It is defendant's first contention that it was error for the trial court to admit the dynamite fuses found in the defendant's car for the reason that the arrest was illegal, thereby rendering the car searched unlawful. Upon a review of the record we find that the trial court had before it competent evidence upon which to base its finding that the officers had probable cause to issue an arrest pickup for the defendant's vehicle. The fact that a brown Ford Fairlane had been seen at the scene, when coupled with Miss Shaw's difficulty with the defendant, and the previously determined license tag number for defendant's car, formed an adequate basis for the officers to issue a pickup for the vehicle.
It is fundamental that the 'constitutional guaranty against unlawful search and seizure does not prevent seizure incident to a lawful arrest where the evidence is not concealed but in open view.' Battles v. State, Okl.Cr., 459 P.2d 623, at 627 (1969). Even if there had not been probable cause to arrest the defendant, the car search was not dependent upon the arrest for its validity. It is clear from the officer's testimony that the dynamite fuses in defendant's car were in open view, not requiring an intrusive search of the vehicle to be observed. Where such incriminating evidence is found in open view, the search and seizure need not be incident to a lawful arrest to justify the seizure. We therefore conclude that the search and seizure of the dynamite fuses in defendant's car was valid, and accordingly that they were properly admitted at defendant's trial.
It is defendant's second contention that the dynamite found in her apartment was inadmissible in evidence since the search was unlawful as it was conducted pursuant to an insufficient affidavit for search warrant under the requirements of Leonard v. State, Okl.Cr., 453 P.2d 257. The affidavit or application for search warrant presented to an Arkansas magistrate recited in part as follows:
'That he (affiant-officer) has reason to believe that on the premises known as 4128 Standard in the City of Fort Smith, County of Sebastian, State of Arkansas, occupied by Nora C. Grigsby, there is now being concealed certain property, namely five sticks of forty percent (40%) American Cyanamide; 5 #6 blasting caps; ten feet blasting fuse which were purchased by Nora C. Grigsby and believed to have been partially used in dynamiting a residence in Muskogee, Oklahoma, on February 16, 1969, and that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: Nora C. Grigsby is under arrest in Muskogee, Oklahoma, for arson and she purchased above listed items at Dupree Distributing Company, Route 3, Box 171, Fort Smith, on Saturday, February 15, 1969, and part of the items were believed to have been used in dynamiting residence in Muskogee, Oklahoma.'
We are of the opinion that the affidavit in support of the search warrant stated sufficient detailed facts to enable a magistrate to determine that there was probable cause to issue a search warrant. Defendant stresses that portion of the Leonard decision, stating that the affidavit for search warrant should state that the affiant-officer 'has personally observed a violation of the law or the possession of contraband upon certain described premises.' In the instant case the affiant-officers had indeed personally observed a violation of law, namely the arson committed at the home of Fay Shaw. In addition the affiant-officers had learned that the defendant had purchased some dynamite. These facts provided the probable cause to search defendant's apartment. The affidavit did not rely on hearsay or rumor.
Furthermore, it should be remembered that the requirements of Leonard v. State, supra, which set forth the rule of the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, are primarily concerned with situations where a search warrant is sought pursuant to nothing more than undisclosed informant's tip. The affidavit for search warrant in the instant case was not based on the tip of an undisclosed informant, but rather on specified factual considerations which, in our view, constituted probable cause to issue the search warrant.
It is defendant's third contention that the trial court erred in admitting a confession by the defendant since there...
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