Peterson v. State, A-12093

• Decision Date: 02 February 1955
• Docket Number: No. A-12093,A-12093
• Citation: 280 P.2d 1029
• Parties: Robert George PETERSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1029

280 P.2d 1029

Robert George PETERSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12093.

Criminal Court of Appeals of Oklahoma.

Feb. 2, 1955.

Rehearing Denied March 2, 1955.

Syllabus by the Court.

1. The finding of a trial court at a hearing on motion to suppress evidence on a disputed question of fact will be sustained where there is competent evidence in the record to sustain the finding.

2. Evidence, on motion to suppress evidence obtained by search of automobile containing intoxicating liquor, was insufficient to disclose that the arrest was a subterfuge, and sustained finding that arresting officers did in good faith arrest motorist for traffic violation in their presence.

3. Officers are not justified, after a valid arrest of motorist for minor traffic violation, in searching his automobile, except that, where arresting officers have reasonable ground for such action, the seat and glove compartment may be searched for firearms, and this only as a precaution for safety of arresting officers and to prevent escape.

4. The cardinal proposition for consideration in the determination of the lawfulness of a search of a motorist, after arrest for a minor traffic violation, such as may be found in some of the provisions of the Uniform Traffic Code, Tit. 47 O.S.1951 §§ 121.1-121.13, or municipal ordinances covering traffic, is, was it reasonable? And this is a judicial question to be determined in each case in view of all the facts and circumstances under which the search and seizure was made.

5. Where officers arrested motorist for traffic violation and discovered large quantity of intoxicating liquor in automobile of accused exposed to view without a search having to be made for said liquor, the seizure of such intoxicating liquor was justified and evidence concerning same was admissible in a prosecution for transportation of intoxicating liquor.

Shelton Skinner, Shawnee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

JONES, Presiding Judge.

The defendant, Robert George Peterson, was charged by an information filed in the County Court of Pottawatomie County with the unlawful transportation of whiskey, was tried, convicted, and pursuant to the verdict of the jury, was sentenced to serve 5 months in the county jail and pay a fine of $500 and has appealed.

The only proposition presented in the brief of the accused is the contention that the trial court erred in overruling the motion to suppress evidence filed and presented by the accused prior to the commencement of the trial. In response to that contention the State in the answer brief makes two contentions:

1. The automobile being driven by the accused did not belong to him and therefore he cannot question the legality of the search.

2. The seizure of the whiskey followed a lawful arrest of the accused and the observation of whiskey in the automobile without a search having to be made for it.

There is some merit to the contention of counsel for the State that the accused is in no position to complain of the legality of the search for the reason that the automobile did not belong to him. Defendant admitted in his testimony that the panel truck being driven by him at the time he was stopped by the highway patrolmen had formerly belonged to him but that he had transferred the title to Norton Brothers in a trade for a new car about two weeks before the date of the alleged violation of the law herein involved, but he stated that Norton Brothers had loaned the car back to him for his use pending the arrival of the new automobile which he had ordered. Assuming without deciding that the accused had sufficient proprietary interest in the automobile to question the validity of the search, we shall proceed to determine the other question herein involved as to the validity of the seizure of the whiskey. Reece v. State, Okl.Cr., 259 P.2d 336.

The arrest of accused and seizure of the whiskey occurred on December 31, 1953. Peterson testified at the hearing on the motion to suppress that he had been quail hunting on that day and that he had his two bird dogs and shotgun in the car with him; that he was driving a panel truck with a window in the rear about 10 inches wide and 30 inches long. A picture of the panel truck was identified and admitted as evidence. It showed that the truck was completely enclosed without windows except a small window at the top of the car on the rear of the truck. Defendant testified that he was driving on the highway between Dale and McLoud about 50 miles per hour when the highway patrolmen came up behind his automobile and flashed their warning light which caused him to pull off the road and stop. That the patrol car stopped about 30 feet back of his car and that he left the car which he had been driving and walked back and met the highway patrolmen about 3 or 4 feet in front of the highway patrol car. That Trooper Taylor said, 'Bob, I am going to have to give you a summons for speeding.' That he got in the patrol car at the command of Taylor and saw Patrolman Morris go to the rear of the panel truck and flash his light in it which caused his bird dogs to jump around excitedly on the inside of the truck. That he could see the bird dogs jumping up against the rear window. That after Morris flashed his light in the rear of the truck, Peterson saw Morris go to the door of the truck, push the seat forward, raise the blanket, turn toward the patrol car and flash his light on and off. That when Morris flashed his light on and off, Patrolman Taylor asked him, 'How much whiskey do you have?' and he answered, 'I don't know.' That Morris then drove the panel truck to the courthouse and Peterson rode with Taylor; that he helped unload the whiskey at the courthouse.

Patrolman Nat Taylor testified at the hearing on the motion to suppress evidence but Patrolman C. A. Morris did not testify at that hearing but Morris did testify at the trial of the case. Taylor testified that he and Morris were patrolling the road between Dale and Shawnee proceeding in an easterly direction about 7:30 P.M. when a panel truck passed them going at what they thought was an excessive rate of speed; that they immediately turned around and started in pursuit of the truck; that they came upon it near the town of Dale when the truck was forced to slow down because of a large transport truck in front of it. That the panel truck pulled around the transport and was followed by the patrol car; that they followed the panel truck about a mile and a half on the highway from Dale and clocked the speed of the truck during that time at 80 miles per hour. After becoming firmly convinced that the defendant was far exceeding the speed limit, the troopers pulled alongside of the truck and turned on their spot light which caused the defendant to pull his car off the road and come to a stop. That the patrol car stopped immediately behind the truck about...