*1 GONZALES, Appellant, Jermiah Oklahoma, Appellee.
The STATE of
No. F-73-411. Appeals
Court Criminal Oklahoma.
July 16, 1974. Tulsa, Frazier, appellant. E. Gen.,
Larry Atty. Derryberry, Robert Gen., McDonald, Atty. Asst. C. Peck, Intern, appellee. Legal OPINION BLISS, Presiding Judge: Court, Rogers County, District In the CRF-73-1, appellant Case No. Jermiah *2 Hamby, VanHorn and to as de- der Sheriff Gonzales, hereinafter referred James residence, proceeded to defendant’s defend- convicted fendant, charged, tried and was door, ant knocked at the his answer- wife Possession of of Unlawful for the offense ed, prem- the officers were admitted to the His Intent to Marihuana With premises re- ten ises and their term of of fixed at a punishment was quantity in vealed a of marihuana found additional imprisonment years with (10) the bedroom of defendant’s home. dollars ($5,000.00) Thousand fine Five of James stated his was specifically side arm never and sen- judgment said From assessed. ap- during process the in- timely drawn entire of tence, perfected a has defendant vestigation of this incident. peal to this Court. Flint, Don chemist for the Oklahoma revealed evidence at trial The Investigation, Bureau of testified he exam- at Dan Trooper January James ex- ined the State’s exhibits and his p. parked approximately 9:30 m. amination concluded the substance con- por- Forty-Four near side of Interstate therein tained to be marihuana. highway into the which divides Officer Darrell VanHorn of the Okla- through Turnpike. Looking Rogers Will Highway homa testified he State Patrol mirror, de- observed his rearview James companion in- during the above Opel. approach fendant model James’ testimony substantially cident. His corrob- headlight vehicle was left front The of testimony given by orated that pursued stopped burning. and not James. James command, Upon de- defendant. Hamby, Rogers B. Under of Sheriff James’ J. a license stepped from the car for fendant County, regarding testified the chain of checking defend-
check. While custody containing of the exhibits marihua- James license, front door na, ant’s driver’s the left introduced into evidence. open. left the car was dome Thereafter the State rested. the con- within defendant’s car illuminated The defense called Officer Don James tents a box of and observed James he ap- who testified arrived at the scene at between the magnum shells on console proximately p. 9:30 m. further that defend- front seats. He noted Thereafter the defense rested. large money which ant had a of In defendant’s first proposition counsel pocket of he front observed argues the defendant’s vehicle Also, wearing. jacket that he was was unlawful. The at evidence adduced passenger in the floor front the front the trial and the Motion Hear- a burlap bag seat saw which con- James ing conducted at trial following: reveal the discovering his Upon tained marihuana. the defend- Officer he related testified was seated James James fin- “you’ve got along highway I’m ant stated: me and the heretofore men- ished, position good is at the house.” tioned and stuff observed defendant’s Thereafter, (Tr 17) approach his defendant informed car. As in approached that “there’s the back left front another James headlight (Tr upon seat the car.” And 17) burning. Officer James plastic it, green pursued information stopped retrieved then and James garbage bag which marihua- walked also contained to the driver’s side the car. Ac- Thereafter, cording testimony na. radioed Under Hamby. emerged response Defendant was Sheriff B. and the officer’s J. handcuffed, demand, patrol his li- wallet for driver’s given warnings. A consent to cense At that check. time Officer James search defendant’s was hand headlight informed defendant left his front by backup Darrell burning. According written Officer Van- was Horn, companion officer, and de- testimony, ant’s defendant walked James’ signed fendant consent to search. Un- front bent down and question as whether there were his headlamp palm with
bumped the
justifying a search
Simultaneously Two Thousand
hand.
We,
bills,
dollars
Nine-Hundred
entirety
in its
studying the record
to the
pocket, fell
coat
carrying in his
unnecessary
turn the
va-
ground.
lidity
the search of the vehicle
companion
*3
the contraband therein contained
seizure of
money and then
up the
pick
helped him
probable
search
con-
the
cause to
it. Defend-
he obtained
him where
asked
traband.
replied he had obtained
ant testified
to
then walked
VanHorn
friends.
from
adduced from the de
The evidence
his flash-
shined
right side of
the
testimony revealed the
fendant’s
officers
a
observed box
the
inside
their
of the vehicle
an
conducted
search
casings on the
empty magnum
they
find a firearm
believed
be
effort to
discovery,
asked
After this
sole.
upon their
therein contained
observance of
inside
gun
a
doing with
what he was
him
empty
casings upon
the
the vehicle’s
shell
replied there
the car.
the shell
console. Their observation of
the
Thereafter
gun
a
within
car.
them
casings
give
was sufficient to
reason
while
by VanHorn
was searched
ant
a
was within the vehicle.
believe firearm
warnings. Sub-
the Miranda
administered
weapon falls
We find a search for this
the vehicle
searched
sequently VanHorn
protective
purview a
search.
within the
search,
burlap
the
product
and as a
permitted
necessity an
be
It is of
officer
marihuana
containing contraband
danger
himself
the use
free
from
from
only
Finally
found.
weapon
may possibly
an offensive
which
his residence
a search of
consented to
subject.
be in the
of a
In
by Van-
a firearm
he was coerced with
instant
the defendant was outside
case
Horn.
person
vehicle
a search of his
would
ar
Defense counsel
detailed
danger
abate
from the
immediate
use of
gument submits
However,
weapon.
a
the offi
should
to es
are
preceded
search
insufficient
per
cers
the defendant and
have released
a search for
reasonable cause for
tablish
re-enter
mitted him to
offi
contraband,
nothing
as there was
safety
cers’
could have been
justi
would
preceding
events which
by
The vehicle driven
jeopardy.
fy
cause to
the contra
reasonable
believe
The interior of such
was a
model.
band was
the vehicle. We
within
interi-
a
is of a size that the entire
arguments
and sufficient
these
meritorious
reasonably within the
or of the vehicle is
a
the issue of
to raise
Coupling
reach
the accessi
the driver.
probable
general
As a
rule the
bility
the vehicle
of the interior of
present
must
suf
preceding
facts
a search
and the officers’ observance of
driver
to rea
ficient facts to warrant
officer
console,
shell
we find the
casings on the
sonably infer
is
the ve
contraband within
properly search the
officers could
interior
Further,
exigent
hicle.
there must be
cir
be
a vehicle for a firearm which could
justify
cumstances which
officer
re
against
used
them after defendant was
make the search without a warrant. The
custody. Consequently,
leased
generating
cause
lawfully
officers could
search
vehi
may,
ambig
a
consist
chain of
firearm,
cle
in
for a
all contraband found
coupled
innocent activities which
to
uous
lawfully
cidental to that search could have
gether
lead a
officer to
would
reasonable
been seized.
find the search
We therefore
within a
believe contraband is
vehicle. See
of the vehicle and the seizure of the con
Patterson,
F.2d
United
States
traband therein contained was a lawful
at trial
(9th
1974). The facts adduced
Cir.
very
a
one.
Suppress Hearing present
BRETT, J., concurs in
argues
next
results.
Defense counsel
unlaw
residence was
of defendant’s
into
coerced
consent
defendant was
as
ful
BUSSEY, J.,
specially.
concurs
adduced
The evidence
to said search.
ing
part
Hearing
BUSSEY, Judge (specially concurring):
npt
did
know
revealed defendant
defense
waiver,
I am of the
that under
sign
consent
all the
ingly
is
facts and
1. This evidence
attendant
No.
circumstances in
exhibit
State’s
Aft
evidence.
instant
when
by
arresting officer,
the State’s
controverted
record,
find the
after stopping
we
studying the entire
defendant for a
er
defec-
headlight,
trial and
tive
expended
at both
adduced
car-
support
tridges
automobile,
within the
Suppress Hearing
he had a
only
the consent
to search
the court’s
product
automobile,
was not the
search the
the cartridges
search the
*4
observed,
find the con which
plain
therefore
were
were in
view.
of coercion. We
residence The sack containing
marijuana
defendant’s
might
found within
traband
well
pistol,
into evidence. Con
have contained a
properly
although
admitted
pistol
found,
no
discovery
sidering all of
of this
case,
to sustain
contraband
evidence
found incident
there is sufficient
lawful ar-
rest
weapon,
the contraband
and search for
the court’s determination
admissi-
State,
v.
Okl. ble.
Burns
admissible. See
State,
Cr.,
Bell v.
(1955);