Grimes v. State

• Citation: 528 P.2d 1397
• Decision Date: 27 November 1974
• Docket Number: No. F--73--425,F--73--425
• Parties: Algie Ray GRIMES et al., Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1397

528 P.2d 1397

Algie Ray GRIMES et al., Appellants, v. The STATE of Oklahoma, Appellee.

No. F--73--425.

Court of Criminal Appeals of Oklahoma.

Nov. 27, 1974.

Rehearings Denied Dec. 19, 1974.

Thomas G. Hanlon, Tulsa, for appellants Grimes, Marlow and Marlow.

Andrew T. Dalton, Jr., Tulsa, for appellant Edmondson.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellants, Algie Ray Grimes, Earnest L. Edmondson, Tommy Jordan Marlow, and Patricia Ann Fairchild Marlow, hereinafter referred to as defendants, were charged with the offense of Possession of a Controlled Substance, Marijuana, with the Intent to Distribute, in the District Court, Custer County, Case No. CRF--73--12. The four defendants were convicted by a jury, and defendants Grimes, Edmondson, and Tommy Jordan Marlow were sentenced After Former Conviction of a Felony, to eighteen (18) years imprisonment. Defendant Patricia Ann Fairchild Marlow was sentenced to two (2) years imprisonment. From these judgments and sentence the four defendants appeal to this Court.

The testimony at trial developed the following facts. On approximately the 30th day of January, 1973, Patricia Marlow, Tommy Marlow, and Earnest Edmondson traveled by car toward California where defendants Patricia Marlow and Tommy Marlow planned to be married. The three spent the first night in Tucumcari, New Mexico and the next morning were met there by Algie Grimes. The four proceeded to California and after the Marlows were denied marriage ceremony in Winterhaven, California, the foursome traveled on to El Centro, California. There they spent the 2nd, 3rd, and 4th of February, 1973, at the Travelodge Motel in adjoining rooms, both registered in the name of Larry Jordan. While at this motel, two calls were made to Old Mexico. On the 2nd day of February, the four drove to Old Mexico, where the Marlows were married. Subsequently, they returned to the Travelodge in El Centro, California, and then traveled back to Old Mexico. On February 4, 1973, at approximately 10:00 a.m., two cars passed through customs at Entrade, California. A customs officer testified that the first car, a 1967 Chevrolet, was driven by Mr. Edmondson and contained the Marlows. The occupants volunteered that the following car was traveling with them and that they had that driver's luggage. The second car was a 1966 Ford, driven by defendant Grimes. The trunk of that car was completely empty, and Grimes indicated that he was traveling with the people in the Chevrolet. Through a cooperative effort between the Oklahoma State Bureau of Investigation, the Yuma, Arizona Narcotic Task Force, and an anonymous informant, the Oklahoma officers were informed of the defendants' activities. On the 5th day of February, 1973, search warrants were issued on the basis of information communicated to Narcotics Agent Sid Cookerly by narcotic authorities in Arizona. On the 6th day of February, 1973, both cars were stopped and search warrants presented to defendant Grimes, driver of the Ford, now the lead car, and defendant Edmondson, driver of the Chevrolet, the second car. Upon search of the Ford, approximately 200 to 250 pounds of marijuana were discovered and became the basis of these convictions.

The defendant's first proposition questions the validity of the affidavit offered as a basis for the two search warrants used to discover the illegal marijuana in question. On the 1st day of July, 1974, this Court entered an Order for an evidentiary hearing, which provides in pertinent part:

'* * * In light of all the facts and attendant circumstances in the record before us, we are of the opinion under the exigencies existing at the time the Oklahoma officers received communications from the Arizona authorities (the affiant was an Oklahoma officer who acquired his information from the authorities in Yuma, Arizona, part of whose information in turn came from an anonymous informant), it was not possible to file a proper affidavit for search warrant in Oklahoma to meet the constitutional standards set forth by the United States Supreme Court and adopted by this Court, nor indeed was it necessary, under the rules set forth in Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975, which recognizes that warrantless searches may be conducted when probable cause exists in the mind of the officer initiating the police communications for the search of a vehicle based upon facts and information sufficient to establish said probable cause.

A similar situation to the case at bar existed in Whitely (Whiteley) v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 28 L.Ed. (2d) 306, 91 S.Ct. 1031 (1971), wherein it was recognized that a warrantless search of a motor vehicle containing contraband could be made by an officer receiving communications from an initiating official who possessed probable cause based upon facts communicated to him and derived from other sources. This principle has long been recognized under the Fourth Amendment of the Constitution, and the power to conduct such warrantless searches are derived therefrom from the federal authority subject to the guidelines of Chambers v. Maroney and Whitely (Whiteley) v. Wyoming State Penitentiary, supra.

The provision of our Constitution relating to search and seizure is couched in the identical language as that of the Fourth Amendment. In light of the protective restrictions preventing warrantless searches of motor vehicles upon mere suspicions under the rules and guidelines enunciated in Chambers and Whitely (Whiteley), we are of the opinion that independent of the validity or invalidity of the affidavit for search warrant, it will be necessary to conduct an evidentiary hearing in the District Court, Custer County, Case No. CRF--73--12, and the Chief Judge of the District Court, Custer County is directed to enter an Order assigning a Judge, other than the trial judge in this case, to conduct such evidentiary hearing. The burden of establishing probable cause in the mind of the initiating officer, is upon the State of Oklahoma, and they may, at their election, proceed under the provisions of 22 O.S. § 723, to apply to the Judge to whom such hearing is assigned, for 'certification and payment of such out-of-state witnesses. The Judge so assigned, shall set a date for the evidentiary hearing, within a reasonable time, and the Appellants, if incarcerated, shall be returned from the place of incarceration, if not on bond, a sufficient length of time prior to the date set for hearing, where they may confer with the attorney who represents them on appeal. Any Appellant who is on bond, shall be notified of said hearing by mailing notice of said hearing to his address, if known, in addition to notifying his attorney of record. The hearing shall be transcribed and either party may offer such evidence as relates to the issue before the Court. At the conclusion of the hearing, and following the guidelines of Chambers and Whitely (Whiteley), the Court shall enter Findings of Fact and Conclusions of Law and certify the same to this Court to supplement the record filed in the above styled and numbered cause. The cost of such transcript shall be borne by the Appellants, unless they are indigent, in which event, upon a proper showing of indigency, the Court may order a transcript to be provided from the funds authorized by law.

In the event that the prosecuting authorities do not elect to produce evidence relating to the probable cause under the guidelines heretofore referred to, they shall so advise the assigned Judge, and the Presiding Judge of this Court, within a reasonable time. The failure to produce such evidence and conduct such hearing, within a reasonable time, meeting the federal guidelines, will be considered by this Court as a confession of error.

In the event the hearing is conducted, the record, together with Findings of Fact and Conclusions of Law, shall be certified to this Court, as above set forth, and the Appellants shall be returned to their place of incarceration at the conclusion of said hearing, pending a determination of this appeal.

* * *'

Such evidentiary hearing was conducted on the 14th day of August, 1974, after notice to the defendants and their attorneys. Two of the defendants failed to appear, one Tommy Jordan Marlow, having escaped from the Penitentiary at Stringtown, but his attorney was present, and Patricia Ann Fairchild Marlow, being unable to attend because she was hospitalized, but her attorney was present, and the Court conducted an evidentiary hearing. Prior to the evidentiary hearing a request was made for the disclosure and attendance of the informants, which was denied by the Court. The evidentiary hearing was transcribed and filed with this Court, together with the Judge's Findings of Fact and Conclusions of Law.

After an examination of the transcript of testimony offered, and the authorities we commend the Honorable George Howard Wilson, the District Judge who presided over the evidentiary hearing, and adopt his Conclusions of Law, as determinative of the issue herein presented, which are set forth as follows, in pertinent part:

'. . . (T)he Oklahoma Court of Criminal Appeals . . . directed the District Court of Custer County to hold a hearing to determine facts and conclusions of law using the guidelines set forth in the United States Supreme Court Cases, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Whitely (Whiteley) v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), which recognize that warrantless searches may be conducted when probable cause exists in the mind of the officer initiating the communications for the search of a vehicle based upon facts and information sufficient to establish probable cause. The aforesaid cases dictate the following questions be answered:

1. From the facts in the instant case,...