State v. Bass

• Citation: 300 P.3d 1193
• Decision Date: 01 May 2013
• Docket Number: No. S–2012–363.,S–2012–363.
• Parties: The STATE of Oklahoma, Appellant, v. Robert Harrell BASS, JR., Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

300 P.3d 1193

The STATE of Oklahoma, Appellant,

v.Robert Harrell BASS, JR., Appellee.

No. S–2012–363.

Court of Criminal Appeals of Oklahoma.

May 1, 2013.

An Appeal from the District Court of Sequoyah County; the Honorable J. Jeffrey Payton, District Judge.

Matthew R. Orendorff, Attorney At Law, Sallisaw, OK, attorney for defendant at trial.

Anthony J. Evans, Assistant District Attorney, Sequoyah County D.A.'s Office, Sallisaw, OK, attorney for state at trial.

Anthony J. Evans, Assistant District Attorney, Sequoyah County D.A.'s Office, Sallisaw, OK, attorney for appellant on appeal.

Donn F. Baker, Attorney At Law, Tahlequah, OK, attorney for appellee on appeal.

SUMMARY OPINION

SMITH, Vice Presiding Judge.

¶ 1 On January 17, 2011, Robert Harrell Bass, Jr. was charged by Information in the District Court of Sequoyah County, Case No. CF–2011–26, with Trafficking in Illegal Drugs (marijuana), under 63 O.S. Supp.2007, § 2–415 (Count I), and Misdemeanor Possession of Drug Paraphernalia, under 63 O.S.2011, § 2–405 (Count II).¹ On February 3, 2011, Bass filed a Motion to Quash, Suppress, and Dismiss.² On February 15, 2011, a preliminary hearing was held before the Honorable L. Elizabeth Brown, Associate District Judge. The State announced at the hearing that it would amend Count I to “Possession with Intent.” At the conclusion of the hearing, the Honorable L. Elizabeth Brown denied Bass' motion to suppress, overruled his demurrer, and bound Bass over for trial on the Count I charge of Possession with Intent to Distribute. On February 16, 2011, the State filed an Amended Information, amending Count I to Possession of Controlled Drug with Intent to Distribute (marijuana), under 63 O.S.2011, § 2–401.

¶ 2 On March 24, 2011, Bass filed a new Motion to Quash, Suppress and Dismiss. ³ On April 19, 2012, a hearing was held on this motion before the Honorable J. Jeffrey Payton, District Judge. The court noted that it had reviewed the transcript of the preliminary hearing, a video of the stop, and the filings of the parties and then announced that it was granting Bass' motion to suppress, without allowing any argument from the parties.⁴ The court did not, however, dismiss the case against Bass. The State now appeals the district court's grant of Bass' motion to suppress, under 22 O.S.Supp.2011, § 1053(5). and the matter is properly before this Court. ⁵

¶ 3 The State raises the following propositions of error in its appeal:

I. The Appellee does not have standing to challenge the search of the vehicle.

II. The Appellee's rights were not violated because his detention and subsequent search of the vehicle were reasonable under the law and Miranda does not apply.

¶ 4 In Proposition I, the State argues that Bass does not even have standing to challenge the search of the van, because he was not an authorized driver of the van. The State cites both Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in support of its “standing” argument. Yet in Carter, the Supreme Court described the “standing” approach to the question of who can properly assert a Fourth Amendment challenge to a search or seizure as “an analysis that this Court expressly rejected 20 years ago in Rakas.” 525 U.S. at 87, 119 S.Ct. at 472 (citing Rakas ); see Rakas, 439 U.S. at 139, 99 S.Ct. at 428 (“[W]e think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.”).

¶ 5 Nevertheless, the State is raising a plausible claim that because Bass was not listed as an authorized driver on the rental contract for the van, he did not have a reasonable expectation of privacy regarding the contents of that van. In Carter, the Supreme Court recognized as follows:

[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

525 U.S. at 88, 119 S.Ct. at 472 (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12).⁶

¶ 6 The State argues that Bass was “committing the felony of unauthorized use of a vehicle.” The record, however, does not establish this claim. The record establishes only that Bass was not the named renter of the van, nor was he listed as an authorized driver, and that the van was not reported stolen. The only evidence in the record regarding whether the person listed on the rental contract authorized Bass to drive the van is Bass' statement to Officer Cody Hyde that the named renter did authorize him to drive the van. Hence the question before this Court is whether the driver of a rental vehicle, who is not listed on the rental contract for that vehicle, but who claims to have been given permission to drive the vehicle by the person listed on the contract, has a reasonable expectation of privacy in the contents of that vehicle. Thus this is not a case where the vehicle stopped is determined to be stolen or where the driver admits that he or she had no legal right to be driving the vehicle at issue.

¶ 7 In United States v. Soto, 988 F.2d 1548 (10th Cir.1993), the court considered whether a driver who asserted that the car he was driving had been loaned to him by his uncle, whose name was on the car's registration, had a protected Fourth Amendment privacy interest in the car.⁷ The Soto court found that “[w]here the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle.” Id. at 1552 (quoting United States v. Rubio–Rivera, 917 F.2d 1271, 1275 (10th Cir.1990)). The Soto court then concluded that because the defendant had produced a registration bearing the name “Corral” and stated that Mr. Corral had loaned him the car, in combination with the fact that the car had not been reported stolen, the defendant had a sufficient expectation of privacy in the vehicle to challenge a search of that vehicle in a motion to suppress.⁸

¶ 8 In Parker v. State, 182 S.W.3d 923, 924 (Tex.Crim.App.2006), the Texas Court of Criminal Appeals recently addressed a situation where the driver of a car stopped for “following another car at an unsafe distance” was driving a rental car that had been leased by his girlfriend. The driver was not on the rental The court stated.⁹ “The question in the case before us is whether someone driving a rental car with permission only from the person who rented the car has an expectation of privacy that society is prepared to recognize as reasonable.” Id. at 926. The Parker court reviewed authority from the United States Supreme Court, other Texas cases, and other jurisdictions, id. at 925–26, and rejected the approach of focusing upon whether the car rental contract allowed the renter to allow others to drive the vehicle.¹⁰ The court then concluded that under the factual circumstances of that case, “society would recognize as reasonable Appellee's expectation of privacy in the use of his girlfriend's rental car with her permission even though he was not listed as an authorized driver on the rental agreement.” Id. at 927.

¶ 9 Given these authorities and the analysis therein, this Court declines to find that Bass, who was in sole possession of the van he was driving, did not have a reasonable expectation of privacy in the contents of the van. Although Bass was not listed on the rental contract for the van, he told Officer Hyde that the person listed on the contract gave him permission to drive the van; and the record contains no evidence to the contrary. Furthermore, the rental agency confirmed that the van had not been reported stolen. Under these circumstances, we find that Bass had a right to challenge the search of the van, which led to the discovery of the marijuana that Bass was then charged with possessing.¹¹

¶ 10 In Proposition II, the State argues that the district court abused its discretion in granting Bass' motion to suppress, because the stop of the van, detention of Bass, and subsequent search of the van were all reasonable and proper. This Court reviews the district court's grant of Bass' motion to suppress for abuse of discretion. See State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369 (“In appeals prosecuted pursuant to 22 O.S.1991, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion.”).

¶ 11 Officer Hyde's original stop of the white van was clearly a valid traffic stop. Bass does not challenge the validity of the original stop, which was based upon Hyde's observation that the van was following another vehicle too closely and that it had crossed over the “fog line” onto the shoulder. This valid traffic stop ended, however, when Hyde gave Bass the warnings that he had written up for him, handed Bass his license, and told him to “be careful.”

¶ 12 In State v. Goins, 2004 OK CR 5, 84 P.3d 767, this Court addressed the question of when an officer may continue to question a person originally detained for a valid traffic stop, after the initial traffic stop has concluded. We found that an officer can continue to question a driver after a valid traffic stop has concluded in two specific situations: “First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.” Id. at ¶ 13, 84 P.3d at 770 (quoting United States v....