Guthrie v. State, F-82-525

• Decision Date: 09 August 1983
• Docket Number: No. F-82-525,F-82-525
• Parties: C.O. GUTHRIE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1147

668 P.2d 1147

C.O. GUTHRIE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-82-525.

Court of Criminal Appeals of Oklahoma.

Aug. 9, 1983.

District Court of Muskogee County, E.C. Nelson, District Judge.

C.O. Guthrie, appellant, was convicted in Muskogee County District Court Case No. CRF-80-423 of Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana with Intent to Distribute. He was sentenced to five (5) years' imprisonment on each charge to run concurrently, with the last three years suspended, and fines of $10,000 and $5,000 respectively, and appeals. AFFIRMED.

Gregory Meier, Lloyd Payton, Muskogee, Attorneys for appellant.

Jan Eric Cartwright, Atty. Gen., Patrick W. Willison, Asst. Atty. Gen., for appellee.

Michael Turpen, Atty. Gen., John Walton Asst. Atty. Gen., Attorneys for appellee At Oral Argument.

OPINION

CORNISH, Judge:

On September 13, 1980, Muskogee city police officers and Oklahoma Highway Patrolmen served a search warrant at a location near the town of Wainwright, Oklahoma. The site is within Muskogee County, but outside the corporate limits of the City of Muskogee. The subsequent search of a field and small house resulted in the seizure of a quantity of marijuana.

Appellant was thereafter convicted of Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana With Intent to Distribute. He was sentenced to five (5) years' imprisonment on each charge with the last three (3) years' suspended, to run concurrently. He was also fined a total of fifteen thousand dollars ($15,000).

Two issues are presented on appeal. The first involves appellant's contention that the affidavit for the search warrant improperly included facts discovered by the affiant, a Muskogee city policeman, while outside the jurisdiction of his employer. This contention is based on the following facts: At 11:00 p.m. or 12:00 midnight on the evening of August 12, 1980, the affiant met with a confidential informant at the property later subjected to search. The officer was unable to see anything from the roadway due to darkness. However, he recorded appellant's name from a mail box on the property before returning to Muskogee. He obtained the search warrant early the next morning using the statements of the informant and the name from the mail box.

We have recognized the general rule that a police officer's authority cannot extend beyond his jurisdiction, i.e., the city limits of his employer. See Graham v. State, 560 P.2d 200, 203 (Okl.Cr.1977). Outside the geographical limits of the officer's authority, he acts as a private person, absent some established exception to the rule, such as fresh pursuit, or pursuit of an escapee. See Knowlton v. State, 574 P.2d 1059, 1061 (Okl.Cr.1978), quoting from Hutson v. State, 53 Okl.Cr. 451, 13 P.2d 216 (1932).

However, in the case at bar, the officer did not attempt to exercise any of the special powers of his office while visiting the property, and his actions were consonant with his status as a private person. Accordingly, we find that the affidavit for the search warrant was not fatally defective.

The second issue arose at oral argument, and involves the validity of service of the warrant. The search warrant was directed to "ANY SHERIFF, OR POLICEMAN IN MUSKOGEE COUNTY, OKLAHOMA." In Murphy v. State, 95 Okl.Cr. 333, 245 P.2d 741 (1952), we indicated that a municipal policeman may not serve a search warrant outside the municipality, while in Mitchell v. State, 74 Okl.Cr. 416, 127 P.2d 211 (1942), Syllabus 4, we suggested that a highway patrolman may not serve a search warrant unless expressly mentioned in the warrant.

The parties have addressed this issue by supplemental brief. Since we agree with the State's argument that a municipal police officer may serve a search warrant anywhere in the county when directed to do so in the warrant, we need not decide the authority of the highway patrolmen to serve the warrant in this case.

In Graham, this Court noted that statute or caselaw may create exceptions to the general rule that a policeman's authority ceases at the city limits. 560 P.2d at 203. Such an exception is discernible in the statutes governing service of search warrants. Title 22 O.S.1981, § 1225 provides that a magistrate, in a proper case, must issue a search warrant

to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate, and also to arrest the person in whose possession the same may be found, to be dealt with according to law.

This section was amended in non-material respects by Laws 1982, c. 224, § 2.

Title 22 O.S.1981, § 1226 specifies the form of search warrant, including the injunction that the warrant be directed "To any sheriff, policeman or law enforcement officer in the...