Williams v. State

• Decision Date: 27 September 1972
• Docket Number: No. A--16326,A--16326
• Citation: 501 P.2d 841
• Parties: John Paul WILLIAMS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 841

501 P.2d 841

John Paul WILLIAMS, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--16326.

Court of Criminal Appeals of Oklahoma.

Sept. 27, 1972.

David Cook, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Sondra Leah Fogley, Asst. Atty. Gen., for appellee.

BRETT, Judge:

Appellant, John Paul Williams, hereinafter referred to as defendant, was convicted in the District Court of Oklahoma County, Case No. CRF--70--1331, of possession of marihuana with punishment fixed at six months imprisonment, and a fine of $1,000.00. Judgment and sentence was imposed on September 21, 1970, and this appeal perfected therefrom.

It was charged by information that the defendant on May 26, 1970, was in possession of marihuana (hashish) found in his pocket. On appeal defendant contends that the trial court erred in overruling his motion to suppress the evidence for the reason that the search of his person was unlawful which renders the evidence obtained thereby inadmissible. The trial court ruled that defendant was searched incident to arrest; and that both the arrest and search were lawful.

The evidence established that on May 23, 1970, a package was received at the Oklahoma City Airport Railway Express Agency office via air express. The package, about the size of a shoe box wrapped in brown paper and secured with packing tape, was addressed to Grace Slick with the notation, 'hold airport,' and had the shipping number 576436. M. A. Peterson, an R.E.A. employee at the airport, testified that the package 'was about half broke open so I examined it.' Peterson said the package 'had some powder falling out of it and I didn't know what it was.' Peterson then telephoned the Federal Narcotic Bureau on May 25, and told them, 'I had a package they might be interested in.' The Federal Bureau notified the Oklahoma Bureau of Investigation about the package. Officers Sparks and Ryan, agents in the Oklahoma Bureau of Investigation, telephoned Mr. Peterson and then went to the R.E.A. office to investigate the package on May 26 at about 8:30 a.m. Officer Sparks testified that the package 'was sealed up. I couldn't see anything inside it.' Peterson then 'opened the package to show us what was in it.' Officer Sparks then 'asked Mr. Peterson to get us a small sample out of the package so we could have it analyzed.' Peterson gave the officers a sample and then resealed the package. The sample was sent to the Bureau lab which reported about 10:00 a.m. that the sample was LSD.

Officers Sparks and Ryan remained at the R.E.A. office keeping the package under surveillance. At about noon, Linda Kosoff, after having earlier inquired by telephone, arrived at the R.E.A. office and claimed the package signing the receipt 'Grace Slick by Linda Kosoff.' Miss Kosoff left the office with the package in an automobile with two male companions, one being the defendant Williams. The officers followed the car for several miles until it reached the corner of Northwest 30th and Lee, in Oklahoma City, where they arrested the occupants while the car was stopped at a stop sign. Officer Sparks testified he arrested the three for possession of LSD because 'we knew the LSD was in the car.' The officers found the still sealed package on the floor of the car. After removing Williams from the car, Officer Sparks testified that as he searched Williams' person he 'felt a lump in his shirt pocket and I pulled it out to see what it was.' The lump, about the size of a ping-pong ball, was a plastic sandwich baggie containing a black powder identified as 'hashish,' a form of marihuana. It is this marihuana alone which forms the incriminating evidence against defendant Williams in this prosecution.

Defendant contends that the search at the airport disclosing the LSD in the package was unlawful which renders the arrest for possession of LSD unlawful. Thus, defendant argues the search disclosing the marihuana was not incident to a valid arrest.

There was no search warrant or arrest warrant at any stage in the facts of this case. 'When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.' Johnson v. United States, 333 U.S. 10, at 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1947). Searches without a warrant are per se unlawful unless falling within one of the specific and well-delineated exceptions. State v. Harwood, 94 Idaho 615, 495 P.2d 160 (1972). One such exception is search incident to arrest. But for a search incident to arrest to be lawful, the arrest itself must be lawful. That is, the arrest must be made upon probable cause to believe that the person arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). If there is no probable cause, then the arrest is unlawful. If the arrest is unlawful, then a search cannot be lawful as incident to arrest. Thus the legality of the search of defendant's person and seizure of marihuana from his pocket turns upon whether there was probable cause for his arrest for possession of LSD.

According to the officers, defendant was arrested for possession of LSD because they 'knew the LSD was in the car.' This knowledge was gained from the warrantless search of the package at the airport and seizure of the sample by the R.E.A. employee at the request of the officers. When the officers arrived at the R.E.A. office the package was sealed, and then opened by the R.E.A. employee so the officers could see it. The package was opened in the presence of the officers for their benefit. The officers asked for and received a sample. Such a search and seizure without a warrant is per se unlawful unless there is some exceptioned circumstances justifying such an invasion. None exists here. There was no explanation why a warrant was not sought, and it is apparent there was sufficient time to secure a warrant. It is uncontested that the package was entitled to Fourth Amendment protection from unreasonable search, since what a person 'seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.' Katz v. United States, 389 U.S. 347, at 351--352, 88 S.Ct. 507, at 511, 19 L.Ed.2d 576 (1967).

The State urges that the search of the package and seizure of the sample was by a private person, not a police officer, and thus it was not an unlawful seizure prohibited by the Fourth Amendment. It is true that an invasion of privacy by a private person is quite different from such an invasion by a police officer, and that the results of such an invasion by a private person might be competent evidence while the results of such an invasion by an officer would be incompetent evidence. Reed v. State, 50 Okl.Cr. 287, 297 P. 327 (1931). Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).

However, the Fourth Amendment cannot be evaded by the use of a private person to do what an officer cannot do. Evidence obtained by a private person is nevertheless incompetent where the officers, through suggestion, order, or request, made the private person their agent for purposes of criminal investigation, or where the officers participate in the search and seizure. Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520 (1927). Stapleton v. Superior Court of Los Angeles County, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967 (1969). Thacker v. Commonwealth, 310 Ky. 702, 221 S.W.2d 682 (1949). People v. Fierro, 236 Cal.App.2d 344, 46 Cal.Rptr. 132 (1965). See Annotation: Private Search--Evidence, 36 A.L.R.3d 553, § 9.

In State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963), stolen articles reclaimed from defendant's...