Tomlin v. State

• Decision Date: 16 February 1994
• Docket Number: No. 8,No. F-90-0230,F-90-0230,8
• Citation: 1994 OK CR 14,869 P.2d 334
• Parties: Larry TOMLIN, Appellant, v. The STATE of Oklahoma, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 334

869 P.2d 334

Larry TOMLIN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-90-0230.

Court of Criminal Appeals of Oklahoma, Emergency Appellate Division, Panel No. 8.

Feb. 16, 1994.

An appeal from the District Court of Cleveland County; Edward M. McDanel, District Judge.

Larry Tomlin, Appellant, was tried by the Court and convicted of Trafficking in Illegal Drugs in violation of 63 O.S.1987, § 2-415, in the District Court of Cleveland County, Case No. CRF-88-1710, and was tried by the Court and convicted of Possession of a Firearm in the Commission of a Felony in violation of 21 O.S.1982, § 1287, in the District Court of Cleveland County, Case No. CRF-88-1711. The trial court sentenced Appellant to ten years' imprisonment and a $25,000 fine for the drug charge and four years' imprisonment for the firearms charge, and it is from these judgments and sentences that this appeal has been perfected. REVERSED.

Allen Smith, Asst. Appellant Public Defender, Norman, for appellant.

Susan Brimer Loving, Atty. Gen., Jennifer B. Miller, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LINDER, Judge:

Appellant, Larry Tomlin, was charged by informations filed December 21, 1988, in Cleveland County District Court, with Trafficking in Illegal Drugs, 63 O.S.Supp.1987, § 2-415 (CRF-88-1710), and Possession of a Firearm in the Commission of a Felony, 21 O.S.Supp.1982, § 1287 (CRF-88-1711). A bench trial was held July 27, 1989, before the Honorable Edward M. McDanel, District Judge. The trial court found Appellant guilty as charged, and on September 6, 1989, sentenced him to ten years' imprisonment and a $25,000 fine for the drug charge, and four years' imprisonment for the firearms charge. From these Judgments and Sentences Appellant now appeals. This panel reverses.

Numbers in parentheses refer to page citations in the Original Records of Cleveland County District Court Case Nos. CRF-88-1710 and CRF-88-1711; transcript of bench trial held July 27, 1989 (Tr. I); transcript of hearing held August 2, 1989 (Tr. II); and transcript of hearing held August 3, 1989 (Tr. III).

FACTS: The charges in this case stem from the seizure of sixty-one pounds of marijuana and two firearms during an inventory of Appellant's vehicle. The inventory was pursuant to Appellant's arrest for allegedly violating a Norman city ordinance against trespassing. Appellant was placed under citizen's arrest for trespassing by Garrick Ragon, a security guard employed to patrol the Robinson Crossing Shopping Center in Norman.

About 9 p.m. on December 20, 1988, Ragon was patrolling the Robinson Crossing Shopping Center when he noticed a blue station wagon with Arizona license tags driving through the center's parking lot. Ragon stopped the vehicle and asked the driver, Appellant, if he needed any help. According to Ragon, Appellant was acting irrationally. After talking with Ragon, Appellant voluntarily left the shopping center lot. (Tr. I 5-11).

A short time later, Ragon saw Appellant's car in the shopping center lot again. Ragon approached Appellant's vehicle and asked him to leave the premises. Appellant complied.

Approximately two hours later, Ragon left the area that he was employed to patrol and drove to a nearby 7-11 convenience store, where he spotted Appellant's vehicle. Ragon called Boyd Security, his employer, and asked that the Norman Police be notified, and then Ragon left. A short time later, Ragon again pulled into the 7-11 lot, and saw Appellant's car pulling in. (Tr. I 12-13, 19-20, 47). Ragon stopped Appellant and told him not to leave, that Appellant would have to explain his presence and actions to police. When Appellant protested, Ragon grabbed hold of Appellant's car and ordered him to stay.

Norman Police Officers Nicholson and Schultz arrived at the store in separate patrol cars. Nicholson spoke with Ragon, then approached Appellant and asked for identification. Appellant complied, and explained to Nicholson, as he had to Ragon, that he was working for Sergeant Hill of the Oklahoma City Police Department, taking down tag numbers for an investigation. (Tr. I 63, 82-83, 97-98).

Sergeant Schultz arrived and conferred with Nicholson and Ragon. (Tr. I 26-28, 112-13). As the officers approached Appellant's car a second time, they noticed an unloaded pistol lying on the passenger-side front seat. The officers drew their weapons and ordered Appellant out of the car. (Tr. I 67, 104, 117). After handcuffing and frisking Appellant, the officers instructed Ragon on how to make a citizen's arrest for trespassing. (Tr. I 29-31, 44-45, 86-87).

Ragon testified that he detained Appellant at the convenience store, a location not within the area of Mr. Ragon's employment, because he considered Appellant a suspicious character. (Tr. I 38). Ragon admitted at trial that Appellant had left the shopping center when he was asked to. (Tr. I 48). Ragon testified he told the Norman officers that Appellant was acting "irrationally." (Tr. I 27).

According to the officers, Ragon was interested in filing a complaint against Appellant, and the officers were debating whether to take Appellant into custody when they approached Appellant's car for the second time and saw the gun. (Tr. I 65-67, 101-04). The officers admitted that the pistol was being transported legally, and that they had no probable cause to arrest Appellant for any felony, nor had they seen him commit any other public offense in their presence. (Tr. I 63, 84, 86, 95, 117, 121).

Ragon testified that the idea of a trespassing charge did not occur to him until after he had conferred with Nicholson and Schultz; he was unsure who brought up the idea. Ragon testified that when he first conferred with the officers, they all agreed Appellant was acting somewhat strangely; but that was the gist of the conversation. Ragon testified that the officers suggested he make a formal citizen's arrest after they walked back to Appellant's car and spotted the gun. (Tr. I 27-30, 45-46, 64-65, 101-02, 114-15).

Following Appellant's arrest, the officers impounded his vehicle and conducted an inventory search in the parking lot of the 7-11 store. Three large containers, holding a total of sixty-one pounds of marijuana, and two rifles were found in the vehicle. (Tr. I 70-74, 125-144).

I-Appellant's first assignment of error is that because Appellant's arrest was illegal, the evidence obtained from his vehicle was illegally seized.

The evidence on which Appellant's convictions were based was obtained during an inventory search of his vehicle, pursuant to this arrest in the 7-11 parking lot for committing a trespass some hours earlier at another location, to-wit, at the Robinson Crossing Shopping Center. Appellant urges this arrest was illegal for a number of reasons. The trial court ultimately found that Appellant did not, in fact, commit a trespass. Nevertheless, the trial court concluded that Ragon's, and the Norman Police officers', actions were protected because they had all acted in "good faith" in effecting the arrest. This conclusion was error and the trial court also erred in refusing to suppress the evidence used against Appellant. We hold Appellant's convictions must be reversed with instructions to dismiss.

While the evidence in this case is detailed and somewhat confusing, the issues presented may be simply stated: (1) Is an arrest for a misdemeanor offense legal, when the misdemeanor never occurred, when officers had no probable cause to believe that it occurred, and where the arrest was made by a private citizen at the suggestion and under the guidance of police officers? (2) Is evidence obtained pursuant to an illegal, warrantless, misdemeanor arrest otherwise admissible, because the arresting parties may have acted in good faith"? The answer to both of these questions is "No."

Under both federal and state constitutional law, all warrantless seizures are presumptively unreasonable. U.S. Const. amends. IV, XIV; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Okla. Const. art. II, § 30; Lucas v. State, 704 P.2d 1141, 1143 (Okl.Cr.1985). An arrest is a "seizure" within the constitutional prohibition against unreasonable seizures. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). When a warrantless arrest is challenged, the State carries the burden of proving that the arrest was lawful. Leigh v. State, 587 P.2d 1379, 1383 (Okl.Cr.1978); Greene v. State, 508 P.2d 1095, 1100 (Okl.Cr.App.1973).

Although the search of Appellant's vehicle was termed an "inventory," its legality still rests on the legality of the arrest which led to the impoundment and inventory. Patrick v. State, 545 P.2d 819, 820 (Okl.Cr.1976). A feigned or counterfeit arrest will not validate an inventory search. Kelly v. State, 607 P.2d 706, 708 (Okl.Cr.1980). If a warrantless arrest is a subterfuge and not justified by the facts, it cannot be justified by what evidence it produces. Fields v. State, 463 P.2d 1000, 1002-03 (Okl.Cr.1970).

In Oklahoma, a peace officer's right to arrest without a warrant is limited not only by federal and state constitutions, but by state statute as well. See Jones v. State, 88 Okla.Crim. 243, 202 P.2d 228, 230 (1949); 22 O.S.Supp.1987, § 196. A private citizen's right to make an arrest is even more limited. See 22 O.S.1981, §§ 202-03. Oklahoma law provides that a citizen may arrest another only when (1) a public offense has been committed or attempted in his presence; (2) the person arrested has in fact committed a felony, although not in his presence, or (3) a felony has been committed, and the arrester has reasonable cause to believe the arrested person committed it. 22 O.S.1981, § 202. One who makes a citizen's arrest

must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in actual commission of the offense or when he is arrested on pursuit...