Skelly v. State, F-91-747

• Citation: 880 P.2d 401,1994 OK CR 55
• Decision Date: 25 August 1994
• Docket Number: No. F-91-747,F-91-747
• Parties: Barbara June SKELLY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 401

880 P.2d 401

Barbara June SKELLY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-91-747.

Court of Criminal Appeals of Oklahoma.

Aug. 25, 1994.

An Appeal from the District Court of McClain County; Noah H. Ewing, Jr., Associate District Judge.

BARBARA JUNE SKELLY, Appellant, was tried by jury for the crime of Possession of Marijuana with Intent to Distribute in Case No. CRF-90-42 in the District Court of McClain County before the Honorable Noah H. Ewing, Jr., Associate District Judge. Appellant was sentenced to twelve (12) years in the custody of the Oklahoma Department of Corrections and has perfected this appeal. Judgment and Sentence is REVERSED AND REMANDED FOR NEW TRIAL.

Larry Bonnell, Purcell, defense counsel, for appellant, at trial and on appeal.

Gary Barger, Asst. Dist. Atty., Purcell, Prosecutor, at trial.

Susan B. Loving, Atty. Gen., Dan Connally, Asst. Atty. Gen., Oklahoma City, for appellee, on appeal.

OPINION

LANE, Judge:

Barbara June Skelly, appellant, and her husband, Jimmie Lee Skelly, were tried jointly by jury and convicted of the crime, Possession of Marijuana With Intent to Distribute After Former Conviction of a Felony (63 O.S.Supp.1989, § 2-401(A)) in McClain County District Court Case Nos. CRF-90-41 and 42. The jury set punishment for each of them at twelve (12) years in the custody of the Oklahoma Department of Corrections, and the trial court sentenced accordingly. Mr. Skelly's case is not consolidated on appeal. We reverse and remand for new trial on three grounds: the trial court's failure to enforce its discovery order, admission of inadmissible evidence, and prosecutorial misconduct.

This case began as a routine night-time traffic stop based on a broken tag light. Mr. and Mrs. Skelly were driving on South Green in Purcell when Purcell Police Officer Moule noticed the tag light on the Skelly car was not working. He turned on his overhead lights to stop them and they pulled into the parking lot of the Uptown Motel. When Officer Moule approached the car he smelled marijuana smoke. When Mr. Skelly, the driver, could not produce insurance verification he was taken to the squad car. A routine records check revealed Skelly had not properly transferred title of the car.

Meanwhile back-up Officer Jones arrived, shined his flashlight into the car and saw a hand-rolled marijuana cigarette in the ashtray. Officer Jones relayed this information to Officer Moule who then arrested Mr. Skelly for the vehicle related violations and possession of marijuana.

Officer Jones then asked Mrs. Skelly to get out of the car and saw a rolled up plastic bag which resembled customary marijuana packaging in her open handbag. Mrs. Skelly closed her handbag as she exited the car, and twice refused the officer's request to search it.

Officer Kitten and his trained drug detecting dog, Scrapper, were then called to the scene to further the investigation. They arrived within twenty minutes. Appellant placed her handbag on the ground in response to Officer Jones' request to let Scrapper sniff it. Scrapper gave the "alert" response and the appellant was arrested. A search warrant was later obtained to search the handbag. The search yielded eighteen (18) grams of marijuana packaged in three baggies and a film can containing butts of marijuana cigarettes and rings.

Scrapper then sniffed the car and hit on each side between the doors. The car was impounded, and an inventory search yielded a small brown case containing a set of scales, and the butt of the marijuana cigarette from the ashtray which had been seen earlier.

The next day Scrapper sniffed the car again, and again hit on each side between the doors. A search warrant was obtained for the car. This search yielded a plastic baggie containing 10 plastic bags of viable marijuana seeds in the pocket of a coat on the front seat. The seeds weighed 20 grams.

A third warrant was obtained for Room 5 of the Uptown Motel where the appellant and her husband were staying. Seven (7) grams of marijuana were found in the pockets of clothing hanging there.

Appellant argues in her first several propositions of error that the trial court erred by overruling her Motion to Suppress the butt of the "joint", marijuana, marijuana seeds, and the scales. We will discuss the issues raised in their chronological order. Appellant argues the initial traffic stop was a mere pretext and subterfuge for the drug search. By definition a pretextual stop lacks probable cause and thus would be illegal. See Johnson v. State, 92 Okla.Crim. 63, 220 P.2d 469 (1950); Bagwell v. State, 327 P.2d 479 (Okl.Cr.1958); Fields v. State, 463 P.2d 1000 (Okl.Cr.1970). The officer's articulated reason for stopping the Skelly car, that the tag light was out, is a traffic violation committed in his presence. This traffic violation provided probable cause for the initial stop. See 47 O.S.1981, § 12-204(c).

We do not reach Appellant's claim that the sniffing of her handbag by Scrapper, a trained drug detecting dog, was a warrantless, non-consensual search prohibited by the Fourth Amendment due to the fact that the officer's personal observations of the contraband in the car and the purse as Appellant exited the car was sufficient to comply with the "plain view" exception. See, Roney v. State, 819 P.2d 286 (Okl.Cr.1991) (discussion of the current elements of the plain view exception).

This does not end our inquiry, for the Fourth Amendment protects people from both unreasonable searches and unreasonable seizures.

A seizure of a person occurs within the meaning of the Fourth Amendment when, in light of all the attendant circumstances, a reasonable person would have believed he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). Such a seizure of property occurs upon a meaningful interference with a person's possessory interest in that property. U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Supreme Court developed the analytical framework for our present inquiry over the space of fifteen years. In Terry v. Ohio the Court distinguished investigatory stops requiring only reasonable suspicion that a person was armed and dangerous from arrests which require probable cause. The Court expanded the Terry rationale to include investigatory stops based on reasonable suspicion of illegal drug activity in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The Terry- Royer reasonable suspicion exception developed further in U.S. v. Place to apply to the temporary detention of persons and personal effects for the purpose of conducting limited investigations, including sniffs by trained drug-detecting dogs. See 462 U.S. at 702, 103 S.Ct. at 2641. To remain within the Place reasonable suspicion exception, the duration of the seizure must be "minimally intrusive" as well. 462 U.S. at 709, 103 S.Ct. at 2645.

Turning to the facts of this case, it is plain the appellant and her handbag were seized when the traffic stop was extended to bring in the drug dog team. At that point in time she was not free to go and the focus of the police investigation cast a long shadow across her privacy interest in the handbag. These seizures fall within the Terry-Royer- Place exception only if the officers had a reasonable suspicion appellant was involved with a drug transaction of some kind. The marijuana smoke wafting from the interior of the car, the joint in the car ashtray, and the rolled up plastic bags seen by Officer Jones in the appellant's handbag were sufficient to support the officer's reasonable suspicion necessary for these seizures.

This does not end our analysis for a seizure which initially comports with the mandates of the Fourth Amendment may nevertheless develop to unconstitutional proportions if it becomes unreasonably intrusive due to a lack of police diligence or other acts which lead to unnecessary delay. See U.S. v. Place, Id. In the present case the appellant was forced to wait approximately twenty minutes for the dog team to arrive. This response time by the dog team to a traffic stop is completely reasonable under the circumstances and does not offend the Fourth Amendment.

The inventory search of Appellant's car is challenged next. Appellant asserts the impoundment of the car was not accomplished pursuant to Purcell City Ordinance § 18-29, and thus the fruit of the resulting inventory search should have been suppressed. The State concedes the impoundment from private property was not requested by the property owner as required by Purcell City Ordinance § 18-29 but asserts this error is harmless for no evidence discovered by the inventory search was admitted at trial.

It is true impoundments must be conducted in strict compliance with applicable law in order for the consequent inventory search to be legal Kelly v. State, 607 P.2d 706 (Okl.Cr.1980). However, suppression is required only for those fruits of the inventory search, and not evidence which has an independent source, or which inevitably would have been discovered without the inventory search. See accord, State v. Aguilar, 98 N.M. 510, 650 P.2d 32 (1982); State v. O'Bremski, 70 Wash.2d 425, 423 P.2d 530 (1967).

The butt of the marijuana cigarette was discovered in the independent and prior plain view search conducted by Officer Jones. Thus it is not tainted by the inventory search and need not be suppressed.

The scales were discovered during the illegal inventory search. Suppression of this evidence is not required if it inevitably would have been discovered without police misconduct. Nix v. Williams, 467 U.S. 431, 104 S.Ct.2501, 81 L.Ed.2d 377 (1984). The Nix Court explained, "[e]xclusion of physical evidence that would...