Kay v. StateKay v. State
- Reporters:
- , ,
- Before:
- Brett
OPINION
BRETT, Judge:The appellant, Lloyd James Kay, was charged with Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana with Intent to Distribute in violаtion of 63’ O.S.1971, §§ 2-509(1) and 2-401 B(2) in Case No. CRF-80-494. The appellant, represented by counsel, waived a jury trial and was tried in the District Court of Muskogee County before the Honorable William H. Bliss. The trial court found the appellant guilty on both counts and sentenced him to five (5) yeаrs’ imprisonment on each count, to run concurrently, and further ordered him to pay a fine of ten thousand dollars ($10,000). From this judgment and sеntence, the appellant has perfected his appeal to this Court.
After a preliminary hearing, the appеllant and the State entered into a written stipulation of the following facts. At approximately 5:00 p.m. on October 24, 1980, Richard Slader, a police officer for the Muskogee Police Department, received a telephone call frоm a confidential informant that a barn on and a field near the appellant’s premises contained marijuana. Upоn receipt of this information, Officer Slader prepared an affidavit and obtained a search warrant for the Kay premises.
Since the Kay farm was located approximately five miles outside the city limits of Muskogee, Officer Slader contacted Gary Rogers, a member of the Oklahoma Highway Patrol, to assist in the execution of the warrant. Rogers, another highway patrolman and several Muskogee City Police officers, including Officer Slader, went to the appellant’s farm. At apрroximately 9:00 p.m. on the same evening, the officers arrived at the appellant’s farm and Rogers handed him the search warrant. The other officers proceeded to search the premises. The officers found a considerable amоunt of marijuana in the barn on the appellant’s premises and even more marijuana growing in a field near the Kay farm. Officеr Slader testified that he searched the barn and field, signed the return on the warrant and took charge of all the evidence, delivering it to the crime lab.
In his sole assignment of error, the appellant contends that the trial court erred by overruling his motion to suppress the evidence obtained as a result of the search. The appellant argues that the officers did not follow several statutorily required procedures for executing a search warrant, and therefore the evidencе obtained with that warrant should have been suppressed.
First, the appellant maintains that the search warrant did not have а directive which would specifically include highway patrolmen, therefor Patrolman Rogers could not serve the warrant. That warrant contains the following directive:
To the Sheriff of Muskogee County or any Police Officer in the State of Oklahoma.
All search warrants must substantially comply with the form provided in
A search warrant may in all cases be served by any of the officers mentiоned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.
The question raised in the appellant’s assignment of error is whether Patrolman Rogers had the authority to serve the warrant.
Title
To any sheriff, constable, marshal or policеman in the County of Pontotoc, and any peace officer in Pontotoc County, Oklahoma, Greeting:
Three investigators fоr the Department of Public Safety served the search warrant in Mitchell. As stated in Mitchell:
[T]his Court intends to give full effect to the legislative enactment сonferring the right of search and seizure on state investigators and highway patrolmen in certain instances, but it will not by inference extend the right of an investigator or patrolman to make such search and seizure where the warrant is not specifically directed to them.
Id., at 213.
The search warrant in the instant case was not specifically directed to any highway patrolmen. Therеfore, Patrolman Rogers did not have the authority to serve the warrant. However, this Court did include an exception to this rule whiсh is similar to
This leads to the appellant’s next argument which is that the Muskogee police officers did not have the authority to conduct a search and seizure outside the city limits of Muskogee. In
Graham v. State,
560 P.2d 200 (Okl.Cr.1977), this Court stated that exceptions “to the general rule that a police officer’s authority cannot extend beyond his jurisdiction,” could be created either by statute or caselaw. This Court recognized such an exception in the recent case of
Guthrie v. State,
668 P.2d 1147 (Okl.Cr.1983), in which we held that a municipal police officer may properly serve a warrant anywhere in the county when directed to do so in the search warrant. Therefore, the police officers, in the instant case, had the authority to conduct the search and Patrolman Rogers, who assisted them, could properly serve the warrant based on the languagе of
The appellant’s final contention is that the magistrate improperly inserted a direction that the warrant could bе served at any time of the day or night. Relying on
For the above and foregoing reasons, the judgment and sentence of the trial court is hereby AFFIRMED.
BUSSEY, P.J., and CORNISH, J., concur.