State v. Strawn

• Citation: 419 P.3d 249
• Decision Date: 08 February 2018
• Docket Number: Case Number: S-2016-963
• Parties: STATE of Oklahoma, Appellant, v. Kelly STRAWN, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

419 P.3d 249

STATE of Oklahoma, Appellant,

v.Kelly STRAWN, Appellee.

Case Number: S-2016-963

Court of Criminal Appeals of Oklahoma.

Decided: February 8, 2018

APPEARANCES AT HEARING, CAROL ISKI, FIRST ASSISTANT DISTRICT ATTY, 314 WEST 7TH STREET, OKMULGEE, OK 74447, COUNSEL FOR THE STATE.

JAY K. RAMEY, 1408 SOUTH DENVER AVENUE, TULSA, OK 74119, COUNSEL FOR DEFENDANT.

APPEARANCES ON APPEAL, CAROL ISKI, FIRST ASSISTANT DISTRICT ATTY, 314 WEST 7TH STREET, OKMULGEE, OK 74447, COUNSEL FOR APPELLANT.

JAY K. RAMEY 1408 SOUTH DENVER AVENUE, TULSA, OK 74119, COUNSEL FOR APPELLEE.

OPINION

HUDSON, JUDGE:

¶1 On February 25, 2016, Appellee Kelly Strawn, was charged with Count 1: Unlawful Possession of Controlled Drug With Intent to Distribute, in violation of 63 O.S.Supp.2012, § 2401(B)(2) ; and Count 2: Driving with a Cancelled, Suspended or Revoked License, in violation of 47 O.S.2011, § 6-303(B), in the District Court of Okmulgee County, Case No. CF-2016-75. Strawn was bound over at preliminary hearing on the felony charge. Strawn thereafter filed a motion to suppress all narcotics evidence arising from the traffic stop of his vehicle. District court arraignment was held August 5, 2016. Strawn then filed supplemental authority with the district court in support of his motion to suppress. On October 7, 2016, a hearing was held on Strawn's motion to suppress. At the conclusion of this hearing, the Honorable Kenneth E. Adair, District Judge, granted the motion to suppress and, upon the State's oral notice of its intent to appeal, stayed further proceedings in the case.

¶2 Appellant, the State of Oklahoma, now appeals. We exercise jurisdiction pursuant to 22 O.S.2011, § 1053(5). For the reasons discussed below, we reverse the district court's ruling and remand for further proceedings.

BACKGROUND

¶3 Both the district court and the parties relied largely upon the transcript of the preliminary hearing testimony in litigating the motion to suppress below. What follows is a summary of testimony from Oklahoma Highway Patrol (OHP) Trooper Daren Koch, the sole witness presented at that hearing. Trooper Koch, a seventeen (17) year OHP veteran, described for the court his training and education in relation to narcotics interdiction and certified drug K-9 handling. Trooper Koch also discussed his drug dog and the certifications they hold as a team for drug detection. Trooper Koch then turned to the events in the present case.

¶4 On February 16, 2016, Trooper Koch initiated a stop of a truck driven by the defendant, Kelly Strawn, on Interstate 40 near Mile Marker 242 in Okmulgee County. Strawn was stopped for speeding, specifically, driving 73 miles per hour in a 70 mile-per-hour zone. Trooper Koch made contact with Strawn at the truck's driver-side window, informed him of the violation and asked for a driver's license. Trooper Koch then instructed Strawn to come back to the patrol unit so Trooper Koch could write him a warning. Trooper Koch noticed that Strawn's hand was shaking and that he had two large dogs inside his truck. Strawn complied. Once both men were seated in the front of the patrol unit, Trooper Koch started running Strawn's license and vehicle registration and began writing out the warning.

¶5 During his brief conversation with Strawn while sitting in the patrol unit, Strawn said he was from Northern California and was driving to Memphis to see a girl. Trooper Koch, based upon his training and experience as a narcotics interdiction officer, recognized Northern California as "a hotspot" for the origin of narcotics, particularly high-grade marijuana. When Trooper Koch inquired about Strawn's destination, Strawn paused before saying he was going to Memphis to see a girl. Trooper Koch "thought possibly this pause that he had in his speech was a sign of deception."

¶6 Strawn also repeatedly engaged in what Trooper Koch described as a "fake yawning[.]" Trooper Koch estimated that Strawn "fake yawn[ed]" at least six or seven times during the course of his contact with Strawn in the front of the patrol unit. Based on his training, Trooper Koch testified that he recognized Strawn's "fake yawning" as an indicator of nervousness. Trooper Koch is trained to pay attention to body language and, based upon his training and experience, he determined the fake yawns were "nervousness that was leaking from [Strawn's] body."

¶7 When Trooper Koch ran Strawn's driver's license, he discovered it was suspended in California and was not valid. Continuing the conversation, Trooper Koch asked Strawn what he did for a living. Strawn paused, then responded that he cut wood. Trooper Koch believed this was possibly another deceptive answer. In addition, Trooper Koch observed other signs of nervousness by Strawn. For example, Strawn's carotid artery was visible in his neck and Trooper Koch observed that it was "beating heavily, rapidly." Trooper Koch noticed too that Strawn, in addition to the yawning, was "making weird movements with his mouth." Trooper Koch testified that he also could see Strawn's heart beating through both his chest and shirt.

¶8 At this point, Trooper Koch thought Strawn "maybe ... was tweaking. It looked like he was on meth." Trooper Koch recognized Strawn as being "extremely nervous." Strawn's behavior was well outside the norm of what he had observed in similar situations where he had written warnings to motorists whose only offense was speeding. At this point, Trooper Koch believed that he had reasonable suspicion that criminal activity was afoot. Trooper Koch asked Strawn about his license being suspended. Strawn admitted knowing his driver's license was suspended; Strawn said it was suspended for not having insurance.

¶9 Trooper Koch printed out the written warning for the speeding violation and gave it to Strawn along with his license and other documents. Trooper Koch then explained the warning and told Strawn he could not drive away due to the suspended license. Trooper Koch testified that, at this point, "most people are gonna say thank you. They'll get out" but Strawn did not exit the patrol unit. Instead, Strawn remain seated in the vehicle.

¶10 Trooper Koch testified that he "entered into a consentual [sic] encounter" with Strawn at that moment. Trooper Koch asked whether Strawn was transporting anything illegal such as an open container of alcohol, weapons or drugs of any kind. In response, Strawn "basically just sat there and looked at his truck" and did not answer. Strawn was "[j]ust ... locked up. He would look at me, then look at his truck, look at me, look at his truck." Strawn looked at Trooper Koch and "didn't know what to say." Trooper Koch recognized this as more nervousness on Strawn's part and told him: "you can say yes or no." Strawn abruptly responded "no."

¶11 Trooper Koch then told Strawn he was going to run his K-9 unit around the truck. Trooper Koch explained the four odors to which his drug dog alerted and asked Strawn whether there was any reason his dog would alert on his truck. Strawn responded that there were "crumbles of pot" all over his truck. Strawn then confirmed that by "pot" he meant marijuana. Trooper Koch told Strawn that, based on that information, he now had probable cause to search the truck and intended to search the vehicle. Trooper Koch asked Strawn whether he had anything else in the truck, and, specifically, whether he "had any pounds." Strawn did not answer but instead merely looked at his truck.

¶12 Trooper Koch next placed Strawn in handcuffs and asked again whether he, Strawn, had "any pounds" in the truck. Strawn replied "a couple" behind the backseat. Trooper Koch had Strawn (while handcuffed) leash and remove the two large dogs from his truck. Trooper Koch then searched the truck and found five (5) large vacuum-sealed bags of high grade marijuana weighing 1.06 pounds each.

¶13 On cross-examination, Trooper Koch acknowledged that when he handed the written warning to Strawn, he did not tell Strawn he was free to go. Instead, Trooper Koch told Strawn he could not drive away. When defense counsel suggested that Strawn sat in the patrol unit because he had no other place to go, Trooper Koch responded "[h]e could step out and hang out on the shoulder." Trooper Koch further acknowledged that he started talking to Strawn about the other things a few seconds after telling Strawn he could not drive away.

¶14 Strawn's written motion to suppress alleged that Trooper Koch unlawfully prolonged the traffic stop without reasonable suspicion beyond the time needed to address the traffic violation that warranted the stop (speeding) and the traffic violation which subsequently arose during the stop (the cancelled or suspended driver's license). Strawn argued there was no consensual encounter leading to the search. Strawn too complained that the trooper's stated reliance upon his nervousness was insufficient to establish reasonable suspicion of criminal activity. Strawn argued that nervousness alone is insufficient to warrant prolonging a traffic stop to investigate perceived criminal activity. Further, Strawn reasoned, the video of the traffic stop did not show "extreme nervousness" as Trooper Koch claimed. Finally, none of the other factors cited by the trooper—Strawn being from Northern California, his work cutting wood or his stated destination of Memphis and his reason for going—supplied reasonable suspicion under the totality of circumstances to prolong the traffic stop for further investigation after writing the warning.

¶15 The State did not file a written response to Strawn's motion to suppress. At the hearing on the motion to suppress, defense counsel offered as an exhibit the video of the traffic stop recorded from Trooper Koch's patrol unit. Judge Adair admitted the video as an exhibit but did not view it at the hearing because he did not have a device on which to play the CD-ROM video. The video of the stop is part of the record before this Court on appeal.

¶16 Defense counsel then called Strawn...