Nickell v. State, F-85-293

• Decision Date: 02 December 1987
• Docket Number: No. F-85-293,F-85-293
• Citation: 1987 OK CR 260,746 P.2d 1155
• Parties: Lloyd Mancil NICKELL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1155

746 P.2d 1155

Lloyd Mancil NICKELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-293.

Court of Criminal Appeals of Oklahoma.

Dec. 2, 1987.

Jack L. Shears, Shears and Shears, Ponca City, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Lloyd Mancil Nickell, appellant, was tried by jury and convicted of Larceny of Gasoline [21 O.S.Supp.1982, § 1722], in Case No. CRF-83-248, in the District Court of Kay County, the Honorable Lowell Doggett, District Judge, presiding. The jury set punishment at one (1) year imprisonment and a $7,500.00 fine. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

At approximately 4:00 a.m. on October 14, 1983, Lieutenant Jim Peugh of the Blackwell, Oklahoma, police department made a routine security check at the Nickerson Farms truck stop, which is located about five miles south of the Blackwell city limits. Lt. Peugh observed only one vehicle parked on the lot, a tractor and a moving van semi-trailer. The officer previously had been alerted that a similar type of vehicle was involved in gasoline thefts from local truck stops. Seeing the moving van parked directly over the gasoline storage tanks, Lt. Peugh slowly drove past the apparently unoccupied trailer and smelled the strong odor of gasoline. Lt. Peugh then left the lot, drove to a point out of sight, and radioed the Kay County sheriff dispatcher, requesting that a deputy contact him. Lt. Peugh next turned off his lights and drove to an interstate overpass and parked, where he could observe the Nickerson Farms parking lot.

Deputy Sheriff John Hobbs radioed Lt. Peugh, who advised the Deputy that two men had appeared and were departing in the tractor-trailer from Nickerson Farms. Deputy Hobbs requested that Lt. Peugh check the gasoline storage tanks and determine if they were still locked. Lt. Peugh complied and saw that the locks were missing from two storage tank tops and that one storage tank cap was missing. Deputy Hobbs then directed Lt. Peugh to pursue the vehicle, stop it, and hold the occupants until the deputy's arrival. The officer stopped the vehicle on the interstate while still within Kay county and surrendered the appellant into the custody of Deputy Hobbs. The appellant was transported to the nearest holding facility, the Tonkawa city jail, at the direction of Deputy Hobbs, who further ordered that the tractor-trailer be impounded.

Deputy Hobbs subsequently obtained a search warrant for the tractor-trailer, and the search revealed that the moving van was equipped with two gasoline storage tanks, one with a capacity of 1,000 gallons, the other with a capacity of 3,000 gallons. The manager of Nickerson Farms determined that about 600 gallons of regular gasoline and 3,000 gallons of unleaded gasoline were stolen from his tanks, which corresponded with the amount of fuel found in the tanks located within the trailer. Additionally, the search of the trailer revealed a trap door in the floor of the trailer, boltcutters, various quick release hoses, and a pump. Walkie talkies were found in both the tractor and the trailer.

The appellant raises three assignments of error. The first assignment of error begs the question resolved in the second assignment of error. We, therefore, reassign the appellant's propositions of error for the convenience of the Court.

For his first assignment of error, the appellant asserts that his arrest was unlawful because it was made outside the arresting officer's jurisdiction, and since the search warrant arose from an unlawful arrest, the evidence obtained should have been suppressed at trial. We disagree. We initially observe that an allegedly illegal arrest does not affect the jurisdiction of a court. Simmons v. State, 725 P.2d 309, 310 (Okla.Crim.App.1986). Furthermore, the arrest made by Lt. Peugh while outside his jurisdiction was lawful under either of two alternative theories.

First, 19 O.S.1981, § 516, authorizes every sheriff, under-sheriff and deputy to call to their aid persons they deem necessary to apprehend or secure any person for a felony or breach of the peace committed in the county. Title 19 O.S.1981, § 548, authorizes a deputy sheriff to deputize any person to do a particular act. Under Section 548, a sheriff may deputize a person for one act or one incident only and upon completion of the act, the power of the deputized person terminates. Smith v. State, 510 P.2d 962, 964 (Okla.Crim.App.1973). Here, the Blackwell police officer acted at the direction, and under the authority, of the Kay County Deputy Sheriff to apprehend and secure the perpetrator of a felony committed in Kay County. Lt. Peugh was thus deputized into the Kay County Sheriff's department. The appellant was stopped and arrested while still in Kay County and surrendered into the custody of a Kay County Deputy Sheriff. We find the arrest lawful.

In the alternative, and temporarily setting aside the deputization of the Blackwell police officer by the Kay County Deputy Sheriff, a police officer who witnesses a public offense committed outside his jurisdiction may make a citizen's arrest. See 22 O.S.1981, § 202. Molan v. State, 614 P.2d 79, 80 (Okla.Crim.App.1980); Moran v. State, 95 Okl.Cr. 6, 237 P.2d 920 (1951). See generally 34 A.L.R. 4th 328 (1984). A private person, or a police officer acting as a private person, who makes a citizen's arrest must, without unnecessary delay, take the arrestee before a magistrate or...