Ruhm v. State, A--16390

• Decision Date: 11 April 1972
• Docket Number: No. A--16390,A--16390
• Parties: Myer Aaron RUHM, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 809

496 P.2d 809

Myer Aaron RUHM, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--16390.

Court of Criminal Appeals of Oklahoma.

April 11, 1972.

Rehearing Denied April 26, 1972.

Leon E. Tabor, Oklahoma City, and Roehm A. West, Tulsa, for plaintiff in error.

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Yvonne Sparger, Asst. Attys. Gen., for defendant in error.

OPINION

SIMMS, Judge:

Defendant in Error, Myer Aaron Ruhm, was convicted in the District Court of Oklahoma County, Oklahoma of Possession of Marijuana. A jury found the defendant guilty, fixed punishment at seven (7) years in the penitentiary, and assessed a fine of Two Thousand Five Hundred Dollars ($2,500), from which judgment and sentence a timely appeal has been perfected to this Court.

Evidence on trial was that on August 5, 1970, Oklahoma City Police Department Narcotics Officers Jerry Legg and Charlie Acox observed the defendant in a group of 15 to 20 people congregated in the 3000 Block on North Paseo Street in Oklahoma City, Oklahoma County, Oklahoma. The officers directed the group to disperse, which it did.

The defendant proceeded to his automobile, and the officers did likewise. The police officers proceeded in a southerly direction on Paseo Street, and upon crossing the intersection of Northwest 29th and Paseo Streets, they heard the sound of an automobile taking off at a high rate of speed, at which point the officers stopped and backed up into the intersection of 29th and Paseo and gave pursuit to a vehicle they saw approximately 100 yards away traveling west on 29th Street, approaching Shartel Street. At the time the officers undertook pursuit, they did not know the identity of the person driving the vehicle. The officers observed that the vehicle did not have a license plate light. They observed the vehicle stop at the stop sign at 29th and Shartel, at which time the vehicle made a right turn and proceeded north on Shartell with the officers in pursuit. The police officers caught up with defendant's vehicle as it crossed 30th Street, heading north, and then the defendant's vehicle made a wide turn onto Northwest 31st Street in an easterly direction and drove left of center on that street, at which point the officers put the 'red light' on the vehicle and stopped the car midway in the first block on 31st Street, east of Shartel. Officer Acox proceeded to the driver's side of the vehicle, while Officer Legg proceeded to the passenger's side of the defendant's vehicle. Officer Acox ordered the defendant to dismount from his automobile, advised him that he was under arrest for three traffic violations, and asked him to produce a driver's license. When the request was made, the defendant turned and reached under the front seat of his automobile; at that point, Officer Legg, who thought the defendant might have been reaching for a weapon, opened the passenger's side door on the vehicle and leaned into the car, where he observed a partially burned marijuana cigarette lying on the floorboard under the front seat. A search for weapons produced nothing. The defendant was placed under arrest for possession of marijuana, and a further search of the car revealed five marijuana seeds in the crease between the back rest and the front seat. The defendant was then transported to police headquarters where he was booked in on the felony, and additionally cited for improper turn, improper equipment, driving left of center, and no state driver's license, which charges were subsequently dismissed.

The defendant testified that he kept his driver's license under the front seat, and later on found his driver's license under the front seat after his arrest and prior to trial. The defendant's testimony with regard to his turning and reaching under the front seat of the automobile at the time he was asked for his driver's license did not differ substantially from that of the police officers. The defendant also testified that he had seen and had smoked marijuana on occasions and admitted misdemeanor convictions for uttering a forged instrument to obtain a stimulant, as well as attempting to obtain a stimulant by fraud and deceit. He denied any knowledge of the marijuana found in his vehicle.

Approximately six months after perfecting the appeal in this case and filing briefs, in May, 1971, the defendant obtained additional appellate counsel and filed on January 29, 1972, a supplemental brief which was thereafter, on February 25, 1972, the subject of a supplemental answer brief on behalf of the State of Oklahoma. Since new and additional questions are raised in the supplemental brief, they will also be treated.

I.

Defendant contends initially that the trial court erred in failing to sustain the motion to suppress the evidence as the fruit of a subterfuge arrest and subsequent illegal search and seizure.

The motion to suppress was filed after the preliminary hearing and prior to trial, but no hearing was had until the trial, at which time the jury was excluded and the two arresting officers were called in support of said motion, which motion was overruled by the trial judge, and properly so in this Court's opinion.

The law is settled in Oklahoma that where a defendant files a motion to suppress, the burden is upon him to offer any evidence in support of the allegations contained in the motion, and further, that the question of suppressing evidence is a judicial one based on the facts and circumstances in each case, and this Court will not reverse the trial court on a question of fact where there is competent evidence reasonably tending to support the finding of the court. Bagwell v. State, Okl.Cr., 327 P.2d 479 (1958).

Defendant contends that because the officers 'heard' an automobile take off at a high rate of speed and trailed the defendant's automobile approximately four blocks before stopping him (at least half of which was in pursuit) and then arrested him for three traffic violations committed in their presence, the arrest was a 'subterfuge for conducting the search.'

The evidence in the record simply fails to support this contention. First, there is no showing that the officers either knew who was in the vehicle or suspected there was any contraband in the automobile. The only testimony, and it was uncontradicted, is that the officers observed the violations and arrested the defendant for same. The defendant did not deny the traffic violations.

In support of his argument, the defendant cites Bagwell, supra, Fields v. State, Okl.Cr., 463 P.2d 1000 (1970), Lawson v. State, Okl.Cr., 484 P.2d 1337 (1971), and in the supplemental brief, Brumley v. State, Okl.Cr., 484 P.2d 554 (1971).

The factual distinctions between the cases cited by the defendant and the instant case are patent.

In Bagwell, supra, the officers observed a violation, gave pursuit, and stopped the defendant after a high-speed, bullet-punctuated chase, and searched his automobile after both smelling and seeing illicit whiskey. The court there affirmed the conviction despite allegations the traffic arrest was subterfuge after the officers And the defendant testified as to the motion to suppress. (Emphasis Added) In Fields, supra, the officers testified that they followed the defendant 11 blocks and waited behind him at a red light before making the arrest, based on a defective tail light, which defect was refuted by testimony, and 'suspicious' movements. There the court suppressed the evidence, a hand gun, found in the glove box after the defendant left his vehicle. This Court, in the Fields Syllabus, stated:

'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist or effect his escape.'

In connection with the Fields case, defendant in both briefs makes much of the fact that the traffic citations in the instant case were dismissed and not prosecuted, since the Fields decision, supra, stated such was indicative of a lack of conclusive evidence of a misdemeanor violation.

We note that at pages 24, 25, and 26 of the preliminary hearing transcript, Officer Legg testified that on the day the traffic violations were to be tried, he was involved in an investigation on South Shields Street in Oklahoma City, his vehicle broke down, and he was unable to get to court on time. He testified he did not use his police radio to seek a continuance because he felt he could still get to court on time.

The facts in Brumley, supra, bear no resemblance to the case at bar inasmuch as the officers observed suspicious activities at a motel and then trailed the defendant's automobile 14 blocks before they observed the car straddle the center line on a three-lane divided highway. The officers obviously were looking for a pretext to stop the automobile, especially since they jailed both the driver and his passenger for the violation.

Finally, the defendant cites the Lawson case wherein the defendant was convicted of narcotics possession. Lawson was the passenger in a vehicle stopped for a ten-mile-per-hour speeding violation and no tag light. After the driver and Lawson were removed from the auto, officers seized a hatchet, which had been in plain view, from the front floorboard. Also seized, and the subject of the major complaint, was a brown alligator bag taken from the back floorboard in a 'search for weapons.' Only after the bag was seized and opened was Lawson arrested.

Syllabus Number One in Lawson states:

'Ordinarily, a minor traffic violation will not support a search and seizure.' (Emphasis Added)

Judge Nix concluded his opinion in Lawson, supra, as follows:

'Therefore, we reaffirm that on arrest for a traffic violation there is no lawful predicate for a search of the driver or the vehicle Absent special circumstances where the officer has probable cause to search the area in which the Arrestee may reach for a weapon * * *.' (Emphasis...