Phipps v. State, F-90-307

• Decision Date: 04 May 1992
• Docket Number: No. F-90-307,F-90-307
• Citation: 841 P.2d 591,1992 OK CR 32
• Parties: Anna Louise PHIPPS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 591

841 P.2d 591

Anna Louise PHIPPS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-90-307.

Court of Criminal Appeals of Oklahoma.

May 4, 1992.

Publication Directed Nov. 9, 1992.

An appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Anna Louise Phipps, appellant, waived her right to a jury trial and proceeded to non-jury trial by stipulating to the testimony given at preliminary hearing. Appellant was found guilty by the trial court of the crime of Unlawful Possession of Marijuana with Intent to Distribute, in Case No. CF-88-5270 in the District Court of Tulsa County, before the Honorable Joe Jennings, District Judge, and sentenced to four (4) years imprisonment and a $4,000 fine. From this Judgment and Sentence, appellant appeals. Judgment and Sentence is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

C. Rabon Martin and Stuart Southerland, Tulsa, for appellant.

Robert H. Henry, Atty. Gen. of Oklahoma and Elizabeth J. Bradford, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

Anna Louise Phipps, appellant, waived her right to a jury trial and proceeded to non-jury trial by stipulating to the testimony given at preliminary hearing. Appellant was found guilty by the trial court of the crime of Unlawful Possession of Marijuana with Intent to Distribute, in violation of 63 O.S.Supp.1988, § 2-401, in Case No. CF-88-5270 in the District Court of Tulsa County, and sentenced to four (4) years imprisonment and a $4,000 fine. From this Judgment and Sentence, appellant now appeals.

The record of the preliminary hearing reveals the following. On December 23, 1988, Larry Kinney, an off-duty Police Undercover Narcotics Officer, was driving his personal vehicle when he observed a woman driving a blue Lincoln that he recognized as being connected with a marijuana investigation he had conducted six months earlier. Kinney had been unable to learn the residence of the registered owner of the car during the previous investigation, so he began to follow it.

Before long, the Lincoln pulled into a Tulsa convenience store parking lot and stopped next to appellant's Oldsmobile. The driver of the Lincoln got out and approached appellant. After a short conversation, both women drove to the back of the parking lot, next to an empty store, where they had another short conversation. Afterwards, they drove about a block and stopped in an apartment complex parking lot. Both women exited their cars and opened up their trunks. The driver of the Lincoln removed a box from her trunk and placed it in the Oldsmobile trunk. The cars then left, each going in a different direction.

Based on his suspicion that a drug transaction had just occurred, Officer Kinney radioed for a uniformed police officer with a marked car to stop appellant. Meanwhile, Kinney followed appellant as she drove through Tulsa and approached Broken Arrow. Officer Kinney's radio reception began to weaken as he followed appellant out of Tulsa, so the officer in the marked backup responding to Kinney's request for assistance radioed for a Broken Arrow police officer to assist him.

Before any of the officers in the marked cars were able to catch up, appellant apparently recognized that she was being followed by Kinney, and pulled into a Broken Arrow convenience store. Officer Kinney pulled in next to her. She immediately began to back out, so Kinney backed out as well. Appellant then quickly pulled back in, as did Kinney. Both then exited their cars. Appellant angrily approached Officer Kinney and asked if he were following her. He identified himself as a Tulsa police officer and showed appellant his badge. He then asked her for identification, which she produced in the form of a drivers license.

Officer Kinney then began to question appellant about where she had been and with whom she had met. At this point, two Tulsa patrol units and one Broken Arrow unit arrived on the scene. Kinney continued the questioning and told appellant that he had observed the transfer of the box in Tulsa. He also told her that he suspected the person she got the box from was involved in marijuana trafficking. He then asked her what was in the box. According to Kinney, appellant said nothing in response, but sighed, walked over to her trunk, opened it, and threw her keys on the sidewalk. Kinney then asked appellant for permission to look in the box, to which she replied, "Go ahead, it's not mine. I don't know what's in it." Kinney sliced open the box with a knife, and saw and smelled what appeared to be marijuana. He then arrested appellant and placed her in one of the Tulsa patrol cars.

I.

The sole issue determinative of this appeal is whether a police officer, under the facts and circumstances presented herein, acting under color of law, can conduct a consensual search of a car outside of his jurisdiction. We conclude that he cannot.

Generally, a police officer's authority cannot extend beyond his jurisdiction. Meadows v. State, 655 P.2d 556, 557 (Okl.Cr.1983). There are, of course, exceptions for (1) hot pursuit and (2) when one municipality has requested the assistance of another municipality's officers pursuant to Title 11, Section 34-103. However, neither of these exceptions is applicable in the present case.

Once he left Tulsa, Officer Kinney was acting outside his jurisdiction, and as such, outside the scope of his authority as a police officer. Graham v. State, 560 P.2d 200, 203 (Okl.Cr.1977). In this situation, his authority was no greater than that of a private citizen. Meadows at 557. In Oklahoma, a private person may arrest another: (1) for a public offense committed or attempted in his presence; (2) when the person arrested has committed a felony although not in his presence; (3) when a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. 22 O.S.1981, § 202. Here, however, Officer Kinney cannot be said to be merely a private citizen since he was acting under color of law. When he got out of his car, Kinney showed appellant his badge and told her he was a police officer. ¹

The Superior Court of New Jersey, Law Division, Criminal, was faced with a situation similar to the case before us in State v. Williams, 136 N.J.Super. 544, 347 A.2d 33 (Ct.Law Div.1975). In that case, the defendant was attempting to suppress evidence of possession of stolen property, claiming that the search of his vehicle was unlawful because it was conducted by a city patrolman outside of city limits. There, as here, the officer obtained consent to search defendant's vehicle. However, the New Jersey court held that this consent was invalid because the defendant believed he was consenting to police officer's request to search his vehicle, not to a request by a private citizen. Williams, 347 A.2d at 35. The court then held the State could not justify the consent to search on the basis of a private citizen's right to arrest. Id.

We find this reasoning very persuasive and in accord with our previous decisions. See Nickell v. State, 746 P.2d 1155 (Okl.Cr.1987); Meadows v. State, 655 P.2d 556 (Okl.Cr.1983); Graham v. State, 560 P.2d 200 (Okl.Cr.1977). Had Officer Kinney been acting within his jurisdiction, appellant's consent would certainly have been adequate to allow his search of her vehicle. Lumpkin v. State, 683 P.2d 985 (Okl.Cr.1984).

There can be no doubt, however, that had a private citizen told appellant that they suspected she was transporting marijuana and asked to look in her trunk, appellant would not have let them. Thus, it is clear that Officer Kinney was acting under color of...