Revels v. State, F-82-680

• Decision Date: 25 July 1983
• Docket Number: No. F-82-680,F-82-680
• Citation: 666 P.2d 1298
• Parties: Charles REVELS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1298

666 P.2d 1298

Charles REVELS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-82-680.

Court of Criminal Appeals of Oklahoma.

July 25, 1983.

An Appeal from the District Court of Comanche County; Kenneth L. Youngblood, District Judge.

Charles Revels, appellant, was convicted in the District Court of Comanche County, Case No. CRF-82-86, of Feloniously Carrying a Firearm, was sentenced to four (4) years in prison, and he appeals. REVERSED and REMANDED.

Patti Palmer, Deputy Appellate, Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen. of Oklahoma, John O. Walton, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

Charles Revels was convicted in Comanche County District Court of Feloniously Carrying a Firearm and was sentenced to four (4) years' in prison.

At the jury trial, the parties stipulated to Revel's two prior felony convictions for burglary. The arresting officer testified that on February 16, 1982, at about 11:30 p.m., he, along with a second officer and an agent, all in plain clothes, were cruising in an unmarked car when he saw a man coming out of the office building of a closed used car lot. Lights were on in the building but the outside lights were off. The officer knew the owners and had seen them at the used car lot late at night on previous occasions but he did not see them this night.

Fearing a burglary, the officer decided "to go back and stop the individual to see if the place had been broken into ...." (Tr. 83) The officer made a U-turn and pulled next to appellant who was walking along the sidewalk. The officer "hollared" "Hay!" Revels kept walking. The officer stopped the car, got out, and said "Stop. Police." He turned around, looked at the officer and started to walk on. The officer walked up to him, said "Hay! Police. I need to talk to you", and showed his badge. The officer then recognized him as someone with whom he had had dealings before.

The officer testified that appellant's hands were in his coat pockets and that he acted "nervous" whereas during previous dealings with the officer he had not acted "nervous." For his own protection, the officer frisked him, patting down his clothes until he felt an object like a gun. Putting his hand into the coat pocket, the officer found a .38 caliber pistol. Later investigation revealed nothing amiss at the used car lot. In fact, the record indicates that appellant was employed by the owners of the car lot. Revels offered no evidence in his behalf.

Appellant argues that the trial court erred in failing to suppress the pistol as evidence obtained in violation of his Fourth Amendment right to be free from unreasonable search and seizure. We agree.

"The Fourth Amendment to the United States Constitution governs not only traditional arrests but also 'seizures' of the person which do not eventuate in a trip to the station house...." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968).

[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.

To justify a particular seizure, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The facts must be judged against an objective standard:

[W]ould the facts available to the officer at the moment of seizure ... 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?

88 S.Ct. at 1880, 20 L.Ed.2d at 906. Good faith or an inarticulate hunch is not enough.

When the officer "hollared" "Stop. Police.", appellant was "seized" within the meaning of the Fourth Amendment. The officer himself testified that he was not free to go, that "he could not have just walked away if he wanted to", even before the frisk. (Tr. 113). The question, then, before this Court is whether the facts, and reasonable inferences therefrom, available to the officer at the moment of seizure, warranted him in concluding that Revels had committed, was committing, or was about to commit a crime? We think not.

The officer based his decision to stop Revels upon two facts: (1) he came out of a closed business at 11:30 p.m. and (2) he was not the owner of that business. Treated objectively as Terry requires, these facts and inferences are insufficient to warrant the conclusion that appellant might have burglarized the car lot office.

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