Lee v. State

• Citation: 661 P.2d 1345
• Decision Date: 29 March 1983
• Docket Number: No. F-82-13,F-82-13
• Parties: Johnnie Edgar LEE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1345

661 P.2d 1345

Johnnie Edgar LEE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-82-13.

Court of Criminal Appeals of Oklahoma.

March 29, 1983.

An Appeal from the District Court of Tulsa County; Margaret Lamm, District Judge.

The appellant, JOHNNY EDGAR LEE, was convicted of Murder in the First Degree

in District Court of Tulsa County, Case No. CRF-80-4134, sentenced to life imprisonment, and appeals. AFFIRMED

Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant, Johnnie Edgar Lee, was convicted in the District Court of Tulsa County, of Murder in the First Degree for the killing of his wife. He was sentenced to life imprisonment.

Evidence at trial showed that his wife's corpse was discovered at noon, Saturday, November 22, 1980, in a vacant house from which the couple had recently been evicted. The victim, who suffered a contact gunshot wound to her head, was found lying beneath a blanket on the bedroom floor. Police investigating the scene observed what appeared to be a trail of broken automobile glass, blood, and body tissue from the curb outside of the residence into the house.

The police canvassed the neighborhood and learned the appellant and his wife had been seen there together the evening before at about 7:30 p.m. A state medical examiner and forensic pathologist testified he was of the opinion that death occurred within ten to eighteen hours before the victim was found. The appellant's car, which was seized upon his arrest the next day, was bloodstained and had a shattered window on the passenger's side. The blood stains were shown to be of the same type as the victim's. The State also entered into evidence the murder weapon on which blood of the same type was found.

The appellant asserts that the police lacked probable cause to effect his warrantless arrest; that they illegally searched the trailer house at which he was arrested; and, that they illegally seized his automobile. On these grounds he contends that the resulting evidence should have been suppressed.

At the hearing held on his motion to suppress the State presented evidence that the officers, based on evidence at the scene, believed the homicide had taken place in an automobile and that the victim then had been dragged out of the vehicle into the house. They also had information that the appellant and his wife had been seen together in the neighborhood on Friday evening near the time death was estimated by a field medical examiner to have occurred. Additionally, they knew that the appellant had been previously convicted for the shooting death of his prior wife. All of these facts and circumstances, the arresting officer knew before the arrest. Initially the officers sought to arrest the appellant as a material witness; however, as they approached the trailer house they saw the appellant's car with its broken window and what appeared to be blood stains. This observation, made from a place where the officers had a lawful right to be, corroborated their theory of how the homicide occurred and established probable cause.

The appellant attacks the existence of probable cause on the basis that there was conflicting testimony at the suppression hearing on whether Lily Mae Owens had told Detective McMichael on Saturday that her grandson, Tony, had seen the Lees in the neighborhood the night before at 7:30. We first observe that a police officer may arrest a person without a warrant upon facts communicated to him by others. Howell v. State, 530 P.2d 1371 (Okl.Cr.1975). Second, reception of hearsay evidence at a suppression hearing is not infirm under 12 O.S.1981, § 2103(B)(1), which provides that the rules of evidence do not apply, except those that relate to privileges, where the judge is to determine questions of fact preliminary to admissibility of evidence. For an excellent discussion on this point, see United States v. Matlock, 415 U.S. 164, 173-175, 94 S.Ct. 988, 994-995, 39 L.Ed.2d 242 (1974). And third, this Court will not reverse a trial court upon findings of fact in connection with a motion to suppress where there is competent evidence in the record reasonably tending to support its findings. Mahan v. State, 508 P.2d 703 (Okl.Cr.1973).

The test of a valid warrantless arrest is whether, at the moment of the arrest, the officer had probable cause to make it, i.e., whether at that moment he had reasonably trustworthy knowledge of facts and circumstances sufficient to warrant the belief of a prudent person that the suspect had committed or was committing a felony. Swain v. State, 621 P.2d 1181 (Okl.Cr.1980). This Court has also held that the term "probable cause" imports that there may not be absolute irrefutable cause. Reynolds v. State, 575 P.2d 628 (Okl.Cr.1978). We are of the opinion that probable cause did exist in the instant case under this test.

On the morning of the arrest the officers had learned from an informant that the appellant could be found in the informant's trailer house. Within forty-five minutes the police arrived there, ordered the appellant to step outside, and arrested him. At the suppression hearing the State presented hearsay testimony that the police had been given consent to search the trailer house, asserting the owner's privilege from testifying by reason of his status as a confidential informant. A police officer also testified that the owner had signed a consent to search form; however, in his haste to immediately apprehend the suspect before he had a chance to flee, the officer had failed to fill out all of the blanks on the form.

The appellant contends that this was insufficient evidence of consent to search. Again during another pre-trial motion hearing, the State presented testimony that the informant had been advised of his rights prior to agreeing to the search and that he gave his consent voluntarily.

In an analogous situation, the Supreme Court refused to compel disclosure of a confidential informant's identity in every preliminary hearing to determine probable cause for an arrest or search, where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh. denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967). The Court held that "[n]othing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury." As in McCray, the arresting officers relying on the informant's consent, testified in open court, in detail as to what the informant had told them. Each officer was under oath and subject to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him under 12 O.S.1981, § 2105, to respect the informant's privilege.

We recognize that the State has the burden to establish the legal sufficiency of voluntary consent. However, as a factual matter to be resolved by the lower court, and supported by the evidence, the determination will not be disturbed. See Mahan, supra.

The appellant also challenges existence of exigent circumstances arguing that his warrantless arrest was not justified because the police had ample time to secure a warrant beforehand. In support, the appellant relies on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), in which the Supreme Court stated that except where there is consent or exigent circumstances, entry into a home to conduct a search or to make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. Here both exceptions were triggered. ¹

The record reflects that the arresting officers, having probable cause to arrest the appellant for the felony which had only recently been committed, acted immediately after receiving information of the appellant's whereabouts to effect his arrest. The facts that the police reasonably believed the suspect was armed and dangerous and likely to flee if not swiftly apprehended, that evidence of the crime could be easily destroyed, and that there had been no inordinate delay in which a warrant could have been obtained, justified the immediate arrest. We therefore find that an emergency situation existed which supported the warrantless arrest under 22 O.S.1981, § 196. See Faulkner v. State, 646 P.2d 1304 (Okl.Cr.1982).

The appellant next takes the position that despite any lawful entry the police had no legal right to seize his coat, which had in its pocket a .45 caliber semi-automatic revolver. He contends there was no reason to believe that the coat was evidence of the crime, and that therefore the search of its pocket, revealing the weapon, was tainted. He advances that since he was already outside the trailer house under the control and custody of the arresting officers, a warrant to search the coat, should have been secured, citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

At the preliminary hearing, which was incorporated by reference in the suppression hearing, Officer Cox testified that after he had advised Lee of his Miranda rights, he asked where the gun was. As Lee told him it was in his coat pocket, Corporal Morrow, overhearing the conversation from the front room of the trailer house, contemporaneously picked up a coat lying on the divan. Cox yelled to him the gun was in the coat pocket; Morrow then looked to see that it was there and then removed it. The weapon was loaded and cocked.

It is sufficiently clear that the police had consent to enter and to search the trailer house. The fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all of the...