Handley v. State

• Decision Date: 19 July 1967
• Docket Number: No. A--14038,A--14038
• Citation: 430 P.2d 830
• Parties: Harry Robert HANDLEY, 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 830

430 P.2d 830

Harry Robert HANDLEY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error,

No. A--14038.

Court of Criminal Appeals of Oklahoma.

July 19, 1967.

Syllabus by the Court

1. Evidence discovered by an officer when he is in a place where he has a legal right to be is admissible to support a charge where such evidence would be involved.

2. Whether or not a search and seizure is improper is determined by the reasonableness of the search.

3. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, the character of the articles procured, and the nature and importance of the crime suspected.

4. The constitutional guaranty does not prevent the seizure, incidental to a lawful arrest, of any articles which it is unlawful for the person arrest to have and which may be used to prove the offense, or anything the seizure of which is reasonably deemed necessary to the officer's own or to the public safety, particularly if such articles are in plain view and no search is required to discover them.

5. However, the doctrine that the constitutional guaranty does not prohibit search and seizure as an incident to a lawful arrest may not be used as a pretext to search for evidence nor does it justify a general exploratory search of the premises.

6. In the instant case, it is obvious that the State Narcotic Agents did not accompany the sheriff's deputies to the defendant's house to assist in the arrest for the charge of burglary. These officers used a pretended arrest for one offense as a 'Trojan horse' in order to obtain entry, to search for narcotics, to justify another charge without going through the proper procedure to obtain a search warrant.

7. The search conducted in the instant case was a 'general exploratory search' and is therefore, unreasonable; making the search illegal and the evidence inadmissible.

Appeal from the District Court, Oklahoma County; John A. Brett, Supernumerary Judge.

Harry Robert Handley was convicted of the crime of Illegal Possession of Narcotics, and appeals. Reversed and remanded with instructions to dismiss.

Don Anderson, Oklahoma County Public Defender, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Penn Lerblance, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge:

Plaintiff in Error, Harry Robert Handley, was charged in the District Court of Oklahoma County with the crime of Illegal Possession of Narcotics, After Former Conviction of a Felony. He was tried by a jury, found guilty, and his punishment assessed at seven years in the penitentiary. From that judgment and sentence the Public Defender of Oklahoma County has perfected his appeal to this Court contending three assignments of error: The first being that the arrest of defendant was improper, and this being true, the officers had no right to search the premises.

From the record, it appears that defendant had been charged with the crime of Burglary Second Degree After Former Conviction of a Felony in Oklahoma County case #30785. Defendant filed a motion to quash and the District Court sustained the motion, allowing the county attorney to refile the charges in justice court, being Oklahoma County case #31239. When the officers went to defendant's house to arrest him under this new warrant on the Burglary charge, they were accompanied by two State Narcotic Agents. They stated they went to the door, saw defendant and his wife run into the bathroom, and then return to admit the officers. They placed the defendant under arrest on the warrant for Burglary, and immediately went to the bathroom to attempt to determine what, if anything, defendant was trying to hide. They found a Winston cigarette package containing hypodermic syringes, needles, a spoon, and eyedropper in the water closet of the toilet. The State Narcotic Officers then proceeded to crawl under the house, allegedly to search the trap and determine if they had flushed anything else down the toilet. They 'discovered' a fruit jar buried under the house containing seven packets of a white powder; which, after testing, was found to be an opium derivative. The state chemist subsequently analyzed it, and identified it as morphine.

It is the contention of the defendant that there was no occasion to issue a warrant for defendant on case #31239, making the arrest on this charge illegal.

This Court has fully dealt with this contention in the companion case: A--14,039, Handley v. State, Okl.Cr., 422 P.2d 217, opinion handed down December 21, 1966, and found the arrest to be legal.

However, this Court is seriously concerned with the question of an unlawful search.

While the law is well-settled that:

'Evidence discovered by an officer when he is in a place where he has a legal right to be is admissible to support a charge where such evidence would be involved.'

See, Puckett v. State, Okl.Cr., 363 P.2d 953; and Farnsworth v. State, Okl.Cr., 343 P.2d 744.

It is also well-settled that an improper search and seizure is determined by the Reasonableness of the search.

The State, in their brief, attempts to rationalize that the search was reasonable, and therefore not illegal.

However, these pertinent facts stand out sharply in the record--(1) Why did two State Narcotic Agents accompany county sheriff's...