Kelly v. State, F-78-660
| Decision Date | 05 February 1980 |
| Docket Number | No. F-78-660,F-78-660 |
| Citation | 607 P.2d 706 |
| Parties | Tyrone Vincent KELLY, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Tyrone Vincent Kelly, was charged with the crime of Unlawful Possession of Marihuana pursuant to 63 O.S.1971, § 2-402. After trial in the District Court of Tulsa County, Case No. CRF-78-849, he was convicted on June 6, 1978, and sentenced to a term of nine (9) months in the County jail.
The decision of the trial court was based entirely upon stipulated facts. Officer Dirion of the Tulsa Police Department found the appellant in his automobile at 7:30 a. m. April 2, 1978. The appellant's car was backed up to the front door of a business in an area that is generally a small shopping center. It was apparent to Officer Dirion that the appellant's 1977 automobile license tag had been altered to appear to be a current 1978 license plate, and so the officer arrested the appellant for the altered tag violation pursuant to 47 O.S.Supp.1978, § 22.23. The vehicle was impounded at that time solely on the basis of the altered tag. Prior to impounding the automobile, Officer Dirion conducted an inventory search which revealed a bag of marihuana in the glove compartment. At the time of the impoundment, Officer Dirion had already determined that the car was not stolen.
In his sole assignment of error, the appellant alleges that the evidence used to convict him was secured as the result of an unlawful seizure of his automobile in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Art. II, § 30, of the Oklahoma State Constitution.
There is no question that an inventory search, conducted reasonably, is legal. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). First, however, the impoundment of a vehicle preparatory to an inventory search must be valid. See Satterlee v. State, Okl.Cr., 549 P.2d 104 (1976).
The State argues that an automobile may be impounded for nonpayment of car registration fees, 47 O.S.Supp.1979, § 22.20. While this contention is undoubtedly true, the stipulated facts of the case show that the car was impounded solely for violation of the altered tag provisions of 47 O.S.Supp.1978, § 22.23. There is no authority for impounding an automobile under the altered tag statute. Arguably, altered license tags are tangently related to a failure to pay automobile registration fees. However, the crimes are distinct, each offense having been defined in a separate provision of the statute. Each of the two provisions also prescribes its own remedy, to wit: a violation of the altered tag provision entails a misdemeanor punishable by fine, while nonpayment of registration fees compels the impoundment of the violating automobile. 1 Therefore, we cannot say that arrest under 47 O.S.Supp.1978, § 22.23, necessarily includes an offense under 47 O.S.Supp.1979, § 22.20. The arrest, as stipulated, must be limited to the violation of the altered tag provisions.
The State cites this Court's recent decision of Patrick v. State, Okl.Cr., 545 P.2d 819 (1976), as authorizing any impoundment so long as it is subsequent to a valid arrest. Such a broad interpretation of that case is unfounded. We stated in the Patrick decision that:
"(T)he legality of the impoundment and subsequent inventory search must rest upon the legality or lawfulness of the initial arrest for which defendant is to be taken into custody. . . ." (Citation omitted)
This language means that if an arrest is a sham the fruits of a subsequent impoundment and inventory search cannot be used by the police to bootstrap their way to a valid arrest. A feigned or counterfeit arrest will not support an...
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People v. Krezen
...at pp. 11-13, 397 A.2d 1050 (impoundment improper since vehicle could have been safely locked at scene of arrest); Kelly v. State, 607 P.2d 706, 708 (Okla.Crim.App, 1980) (impoundment improper where vehicle parked in parking lot of business establishment); State v. Thirdgill, 46 Or.App. 595......
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McGaughey v. State
...however, that a car on private property cannot be impounded absent a request from the property owner or other specific authorization. In Kelly v. State,68 this Court stated, "The decision to impound on private property does not properly rest with the police officer. It is incumbent upon the......
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Coleman v. State, F-79-600
...Coleman's initial arrest was proper and valid. The defendant relies upon Lee v. State, 628 P.2d 1172 (Okl.Cr.1981) and Kelly v. State, 607 P.2d 706 (Okl.Cr.1980), to support his argument that his vehicle was on private property and therefore the law enforcement officers were without authori......
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State v. Kuster
...300 (1975); State v. Goodrich, 256 N.W.2d 506, 510 (Minn.1977); State v. Peterson, 583 S.W.2d 277, 280 (Mo.App.1979); Kelly v. State, 607 P.2d 706, 707 (Okla.Crim.App.1980); Benavides v. State, 600 S.W.2d 809, 810 (Tex.Crim.App.1980) ("before an inventory search can be upheld as lawful ther......