Rene GOMEZ, Appellant v. STATE of Oklahoma, Appellee.
No. F-2005-526.
Court of Criminal Appeals of Oklahoma.
Sept. 5, 2007.
2007 OK CR 33 | 168 P.3d 1139
J. David Ogle, Josh T. Welch, Ogle & Welch, P.C., Oklahoma City, OK, Attorneys for Appellant.
E.A. Gates, Office of District Attorney, Kingfisher, OK, Attorney for State.
W.A. Drew Edmondson, Attorney General of Oklahoma, Theodore M. Peeper, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.
OPINION
JOHNSON, J.
¶1 Appellant Rene Gomez was tried in a non-jury trial in the District Court of Kingfisher County before the Honorable Susie Pritchett in Case No. CF-2004-19 for Possession of a Controlled Dangerous Substance (Methamphetamine) (
¶2 The district court sentenced Gomez to five years in prison on the methamphetamine possession count. The district court also ordered that when space became available, Gomez would be sent to the Bill Johnson Correctional Center in Alva, Oklahoma, and directed that when he successfully completed the “RTP”1 program there, “the balance of the sentence to incarceration shall be suspended, under the supervision of the Department of Corrections for two (2) years” (Judgment and Sentence at 1).2 The district court sentenced Gomez to one year each in the county jail on the paraphernalia and obstruction counts and further ordered the sentences on all three counts to run concurrently. From this judgment and sentence, Gomez appeals and advances two propositions of error:
(1) The evidence seized as a result of the warrantless search of his car should have been suppressed by the trial court because the search was not supported by probable cause or a showing of exigent circumstances; and
(2) The five year sentence, even with its conditional partial suspension, is excessive.
¶3 On May 16, 2004, around 1:00 a.m., Gomez was stopped by Officer Burpo of the Kingfisher County Police for swerving across the center yellow line twice while traveling on Highway 81. As Officer Burpo asked Gomez for his license and registration, he noticed the smell of alcohol and saw two six-pack alcoholic beverage containers inside Gomez‘s car. The visible containers were unopened, but one container was missing.3 Officer Burpo directed Gomez to get out of the vehicle because he wanted to search the car for an open container. Officer Burpo escorted Gomez to the front of his patrol car and began to search the immediate driver‘s area of Gomez‘s car. Before Officer Burpo began searching, Gomez clearly stated that he did not consent to the search. As Officer Burpo searched the driver‘s immediate area, he noticed the center console lid was ajar and opened it. Inside the console was an open bottle of alcohol. Underneath the bottle Burpo found a glass pipe, a small amount of methamphetamine, and a digital scale.
I. Warrantless Search
¶4 This case raises two issues: (1) whether the smell of alcohol and under the circumstances, the absence of an alcoholic beverage container provide sufficient probable cause for a warrantless vehicle search; and (2) whether a warrantless vehicle search must be supported by a showing of exigent circumstances as well as probable cause. Gomez contends that the district court erred by denying his motion to suppress the drug and drug paraphernalia evidence that was seized as a result of the search of his car. According to Gomez, the evidence seized during the search of his car should have been suppressed because Officer Burpo lacked probable cause necessary to conduct a warrantless search, and there were no exigent circumstances requiring an immediate roadside search of his vehicle.
¶5 We review a trial court‘s denial of a suppression motion for an abuse of discretion. State v. Goins, 2004 OK CR 5, ¶ 7, 84 P.3d 767, 768. When reviewing a trial court‘s ruling on a motion to suppress evidence based on a complaint of an illegal search and seizure, we defer to the trial
A. Probable Cause
¶6 The
¶7 In Hallcy v. State, 2007 OK CR 2, ¶ 10, 153 P.3d 66, 68-69, we held in a slightly different context that the “test for judging the existence of probable cause is whether a reasonably prudent police officer, considering the totality of the circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed.” We explained in Hallcy that “probable cause is a flexible, common-sense standard, requiring that the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be contraband or useful as evidence of a crime.” Id. Logically then, probable cause sufficient to justify a warrantless search of a vehicle exists if an officer reasonably believes the vehicle contains contraband or evidence of a crime. Under this standard, based on the centerline swerving, the smell of alcohol, and the missing bottle, Officer Burpo‘s belief that Gomez‘s car contained evidence of a crime (i.e., an open alcohol container) was reasonable. Officer Burpo therefore possessed sufficient probable cause to search Gomez‘s car for an open container of alcohol.5 Cf. Lozoya v. State, 1996 OK CR 55, ¶¶ 34-36, 932 P.2d 22, 33 (holding that officer who smelled odor of marijuana while approaching van validly stopped for failure to dim headlights had probable cause to search for contraband); Cole v. State, 1986 OK CR 150, ¶¶ 9-10, 728 P.2d 492, 494 (holding that officer who smelled burning marijuana while approaching defendant‘s vehicle stopped for tail light violation had probable cause to search for contraband).6
¶8 Gomez contends, however, that regardless of whether Officer Burpo legitimately searched for and seized an open container of alcohol, the contraband drugs and paraphernalia that were ultimately found in the vehicle‘s center console underneath the open container were the fruit of an unlawful search. According to Gomez, once Officer Burpo removed the bottle from the center console there was no further justification “to rummage around” in the console searching for contraband (Appellant‘s Reply Brief at 5). We disagree. Officer Burpo‘s warrantless search of the interior of Gomez‘s car for an open container of alcohol was lawful because it was supported by probable cause, and, because the officer reasonably believed there might be an open container in the car, he was entitled to search the entire interior of the car, including the center console of the front seat. See Wyoming v. Houghton, 526 U.S. 295, 300-01, 119 S.Ct. 1297, 1300-01, 143 L.Ed.2d 408 (1999) (relying on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), to hold that if probable cause justifies search of lawfully stopped vehicle, it justifies search of every part of vehicle that may conceal object of search including all containers within vehicle without showing of individual probable cause for each container);7 Castleberry v. State, 1984 OK CR 30, ¶ 14, 678 P.2d 720, 723 (“[i]f an officer has probable cause to believe there is contraband somewhere in the car, but he does not know exactly where, he may search the entire car as well as any containers found therein“). When the officer found the open container and removed it from the console, he was lawfully positioned to observe the methamphetamine, pipe, and digital scale when they came into plain view with removal of the bottle that had been sitting on top of them. The drug-related items were found in plain view during a valid warrantless search. They were lawfully seized. Cf. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (finding that once door to vehicle had been lawfully opened, registration card in plain view was legally seized); State v. Baxter, 1974 OK CR 198, ¶ 15, 528 P.2d 347, 349 (holding that officer lawfully in any place may, without obtaining warrant, seize from motor vehicle, any item which he observes in plain or open view, if he has probable cause to believe item is contraband, or evidence of crime).
B. Exigent Circumstances
¶9 We now turn to Gomez‘s claim that the warrantless search that arose from the initial investigatory encounter was unlawful due to a lack of exigent circumstances. Gomez contends that
(1) Federal Constitution
¶10 In Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999), the United States Supreme Court expressly rejected any exigency requirement for the vehicle exception to the Fourth Amendment‘s warrant rule. In Dyson, the Supreme Court held that the “automobile exception” to the warrant rule has no separate exigency requirement by explaining that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the
(2) Oklahoma Constitution
¶11 In light of Dyson and Ross, Gomez concedes there is no federal constitutional requirement for a showing of exigent circumstances in addition to probable cause to support a warrantless vehicle search. Gomez asserts, however, that
[T]here are two occasions on which a [vehicle] search without a warrant may be justified as reasonable: one is where the search is incident to a lawful arrest; and, the second is when probable cause exists to believe that the defendant is in possession of that which is subject, by law, to seizure. However, the second occasion is limited by the requirement that there be “exigent circumstances.”
1980 OK CR 114, ¶ 4, 620 P.2d 1346, 1347. Davis clearly holds a warrantless vehicle search requires a showing of probable cause and exigent circumstances.
¶12 While the Davis opinion did not specify whether it grounded its exigent circumstances requirement on federal or state constitutional grounds,8 it did refer to two prior decisions of this Court in which warrantless searches of vehicles were at issue. The first, Lawson v. State, 1971 OK CR 184, ¶ 15, 484 P.2d 1337, 1341, held that “there is no lawful predicate for a search of the driver or the vehicle absent special circumstances where the officer has probable cause to search the area in which the arrestee may reach for a weapon or destroy evidence.” Lawson reached its holding after discussing the unreasonable search provisions of both the Oklahoma and federal constitutions. Five years later, however, in Whitehead v. State, 1976 OK CR 35, ¶ 4, 546 P.2d 273, 275, relying entirely on
¶13 The question before the Court now is whether to retain our construction of
¶14 It is well established that this State may grant protections to its citizens that are more expansive than those conferred by federal law. Brumfield v. State, 2007 OK CR 10, ¶ 15, 155 P.3d 826, 833. It is also settled that this Court‘s independent interpretation of Oklahoma constitutional provisions is not circumscribed by United States Supreme Court interpretations of similar federal provisions. Dennis v. State, 1999 OK CR 23, ¶ 20, 990 P.2d 277, 285-86. There is no doubt, therefore, that we may continue to construe
¶15 In Gore v. State, 24 Okla.Crim.App. 394, 411, 218 P. 545, 547-48 (1923), this Court explained that if construction of federal constitutional provisions made by the United States Supreme Court appears to rest on “sound principles,” the decisions of this Court construing equivalent provisions of the Oklahoma Constitution should harmonize with those of the United States Supreme Court construing the federal constitution. The stated basis for the rule was to promote uniformity of judicial decisions. Id. This view is buttressed by
¶16 Because we believe the United States Supreme Court‘s decisions in Ross and Dyson rest on sound principles, we are persuaded they should inform our construction of
¶17 Because the warrantless search of Gomez‘s car was supported by probable
II. Sentence
¶18 In his second proposition of error, Gomez complains that his sentence is excessive and should be modified. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149. Gomez was sentenced to five years in prison with a portion conditionally suspended contingent on successful completion of a drug abuse rehabilitation program. The sentencing range for possession of a controlled dangerous substance is between two and ten years (
DECISION
¶19 The Judgment and Sentence of the trial court is AFFIRMED. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22 Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
LEWIS, J.: Concurs.
LUMPKIN, P.J.: Specially Concurs.
C. JOHNSON, V.P.J. and CHAPEL, J.: Concurs in Part and Dissents in Part.
LUMPKIN, Presiding Judge: Special Concur.
¶1 I concur in Judge Arlene Johnson‘s well reasoned application of this Court‘s jurisprudence relating to the warrantless search of an automobile. I write separately to address further the history of this jurisprudence.
¶2 The relationship between
This provision of our Constitution [Article II Section 30] is almost an exact copy of the fourth amendment of the Constitution of the United States, which is as follows: “Article IV(30). The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” It is true that the language is not in all respects the same in the two provisions; but the substance is identical. For a proper understanding of the question before us, it is important to find out what construction the United States courts have placed upon this provision.
¶3 This was subsequently reaffirmed in Keith v. State, 30 Okla.Crim. 168, 171, 235 P. 631, 632 (1925) (“[s]ection 21 [of the Oklahoma Constitution] corresponds in substance with article 5 [of the federal constitution], and section 30 [of the Oklahoma Constitution] is identical with article 4, respectively, of the amendments to the Constitution of the United States“); Buxton v. State, 37 Okla.Crim. 402, 258 P. 814, 815 (1927) (“this court has followed the decisions of the Supreme Court of the United States in construing section 21 and 30 [of the Oklahoma Constitution]“); Layman v. Webb, 1960 OK CR 19, ¶ 24, 350 P.2d 323, 335 (“[t]herefore, for an answer to the problem we must determine whether in view of Sections 21 and 30, Art. II, Oklahoma Constitution, commonly known as the Bill of Rights, found as the 5th and 4th Amendments to the United States Constitution...“).
¶4 More recently in State v. McNeal, 2000 OK CR 13, ¶ 10, 6 P.3d 1055, 1057, this Court stated:
We have previously held that article II, section 30 of the Oklahoma Constitution
and the Fourth Amendment of the U.S. Constitution contain almost exactly the same wording, and in substance are identical. Years ago this Court recognized the close relation of the Oklahoma Constitution‘s Article II, § 30 and the Fourth Amendment to the United States Constitution when we stated “[t]his provision of our Constitution [Art. II, Section 30] is almost an exact copy of the fourth amendment of the Constitution of the United States....” Long v. State, 1985 OK CR 119, ¶ 6, 706 P.2d 915, 917 (quoting DeGraff v. State, 2 Okl. Cr. 519, 103 P. 538 (1909)).
¶5 In Long, this Court specifically rejected a request to apply a different standard to Article II, § 30 than the United States Supreme Court had applied to the Fourth Amendment of the United States Constitution.1 1985 OK CR 119, ¶ 6, 706 P.2d 915, 917. See also my separate writing in Dennis v. State, 1999 OK CR 23, 990 P.2d 277, 287 (Lumpkin, V.P.J., concur in part/dissent in part).
¶6 As these cases indicate, this Court has historically chosen to interpret Article II, § 30 the same as the Fourth Amendment.2 The majority correctly recognizes that this Court‘s independent interpretation of Oklahoma constitutional provisions is not bound by the United States Supreme Court‘s interpretations of similar federal provisions. However, when the Supreme Court‘s interpretation of federal constitutional provisions, similar to state constitutional provisions, is based on well-reasoned legal principles, this Court has appropriately chosen to follow that reasoning. That is very apparent in our jurisprudence regarding the warrantless search of an automobile, and we should honor the doctrine of stare decisis in applying it here.
¶7 The “automobile exception” was first set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In determining under what circumstances a warrantless search of an automobile was permitted, the Court held that “the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported“. Id., 267 U.S. at 155-56, 45 S.Ct. at 286. This Court thereafter held that a lawful search of an automobile may be made without a warrant where there is probable cause to believe that it contains that which by law is subject to seizure. See Merwin v. State, 1954 OK CR 111, ¶ 6, 277 P.2d 208, 210-11; Thompson v. State, 1968 OK CR 163, ¶ 14, 444 P.2d 849, 850; Gaston v. State, 1969 OK CR 208, ¶¶ 6-7, 457 P.2d 807, 808-09.
¶8 In 1970, the Supreme Court decided that the existence of probable cause alone would not satisfy a warrantless search, that only when there are “exigent circumstances” in addition to the existence of probable cause could an officer legitimately search an automobile without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This Court subsequently adopted the probable cause plus exigent circumstances standard for warrantless searches of automobiles. See Lawson v. State, 1971 OK CR 184, ¶ 8, 484 P.2d 1337, 1339; Norton v. State, 1972 OK CR 261, ¶¶ 7-8, 501 P.2d 877, 879-80; Gonzales v. State, 1974 OK CR 133, ¶ 11, 525 P.2d 656, 658; Hughes v. State, 1976 OK CR 164, ¶¶ 6-8, 552 P.2d 1154, 1155-56; Whitehead v. State, 1976 OK CR 35, ¶ 4, 546 P.2d 273, 275-76; Blackburn v. State, 1978 OK CR 24, ¶ 22, 575 P.2d 638, 642; Phelps v. State, 1979 OK CR 76, ¶ 10, 598 P.2d 254, 257-58; Davis v. State, 1980 OK CR 114, ¶ 4, 620 P.2d 1346, 1347.
¶9 However, in 1982, the Supreme Court recognized that a separate exigency requirement was not necessary in the case of an automobile search and determined that probable cause alone was sufficient to support a warrantless search of an automobile. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). This has since been reaffirmed in Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam) and Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999). This Court similarly determined that separate exigent circumstances were not necessary and the warrantless search of an automobile was permitted on the basis of probable cause to believe that the instrumentalities or fruits of a crime were contained within. See Castleberry v. State, 1984 OK CR 30, ¶ 13, 678 P.2d 720, 724; Cole v. State, 1986 OK CR 150, ¶¶ 9-10, 728 P.2d 492, 494; Davis v. State, 1990 OK CR 20, ¶ 23, 792 P.2d 76, 84; Lozoya v. State, 1996 OK CR 55, ¶ 35, 932 P.2d 22, 33; State v. Paul, 2003 OK CR 1, ¶ 4, 62 P.3d 389, 390.
¶10 There are admittedly certain caveats to the above history. It has not always been clear in our opinions whether a particular case was decided strictly on Fourth Amendment grounds or on both Fourth Amendment and section 30 grounds. Further, our case history is somewhat inconsistent. For instance, after the Chambers decision, certain cases from this Court relied solely on Carroll and did not discuss the exigent circumstances requirement.3 And after Ross was decided we still had an occasion to require a finding of exigent circumstances.4
¶11 However, with the exception of a few cases, it is clear that it is well established law that this Court interprets
¶12 Further, practically speaking, it would be virtually unworkable to interpret
¶13 Therefore, I agree with the majority opinion that the warrantless search of an automobile is legally permissible based solely upon a finding of probable cause to believe that the instrumentalities or fruits of a crime are contained therein, and the existence of exigent circumstances is not a consideration. I further agree that cases inconsistent with this opinion should be overruled.
CHAPEL, J., Concurring in Part and Dissenting in Part:
¶1 The majority disregards settled Oklahoma law which could be used to affirm this unremarkable case, preferring instead to rely on an interpretation of federal law which conflicts with settled law based on the Oklahoma Constitution. Essentially, the majority holds that, despite Oklahoma constitutional law to the contrary, probable cause to search for any reason justifies a search of an entire vehicle and any containers within it. I see no reason to substitute this conclusion for our own settled precedent. The only possible reason I can see for the majority‘s approach is to allow it to overturn Oklahoma precedent which interprets the Oklahoma Constitution differently than federal law interprets the federal Constitution.
¶2 This Court held in State v. Paul that, when interpreting the United States Constitution, the Fourth Amendment vehicle exception applies.1 In Paul, we held that a dog sniff alert created probable cause for an offi4cer to search a vehicle without a warrant.
¶3 The majority admits that this Court can, and has, interpreted various provisions of the Oklahoma Constitution differently than federal courts have interpreted their federal constitutional counterparts.5 The majority recognizes that this is one such instance. The majority offers no particular criticism of this Court‘s analyses or holdings in Davis and Whitehead. However, the majority concludes that we should abandon our separate state constitutional protection, since the federal interpretation of federal law rests “on sound principles“. In fact, the federal interpretation of the Fourth Amendment on this issue is most unsound. However, irrespective of one‘s view as to the Fourth Amendment, I fail to see why we should abandon the protections afforded to our citizens by our state constitution.
¶4 Applying all the applicable law, I would affirm this case. Officer Burpo saw Gomez commit a traffic violation and pulled him over.6 When he approached the car, Burpo smelled alcohol and saw two unopened six-packs of some alcoholic beverage, with one missing. Burpo looked in the car for the missing container. He found an open Bacardi cooler in the center console. When he picked up the bottle, he could see a pipe, methamphetamine, and a scale. As the majority notes, a stop is justified where an officer has probable cause to believe a traffic law has been violated.6 Officer Burpo had probable cause to stop Gomez. After smelling the alcohol and seeing the bottles, Burpo also had probable cause to search the car for an open container.7 I can agree with the majority that Burpo lawfully looked around the car for an open container.
¶5 At this point I part ways with the majority analysis. The majority suggests that Burpo‘s probable cause to search for an open container gave him the right to search
¶6 This conviction could be upheld under existing law. However, in affirming the case the majority needlessly overrules Oklahoma precedent interpreting the Oklahoma Constitution, in order to substitute a less demanding federal standard. This Court has determined that, in this area, Oklahoma citizens are afforded more protection than federal Fourth Amendment law requires. I cannot agree to any decision which would lessen that protection. I dissent to the portion of the majority opinion that does so.
¶7 I am authorized to state that Judge Charles Johnson joins in this opinion.
Notes
By comparison, the Fourth Amendment states:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.