Starks v. State
696 P.2d 1041
Okla. Crim. App.
1985
Check Treatment

*1 PARKS, Presiding Judge, dissenting. opin- am of the “same transaction” test for

ion that explained jeopardy, skillfully

double Swenson, Brennen in

Justice Ashe v. 436, 448,

U.S. S.Ct. (1970) correct, eminently

L.Ed.2d proper interpretation

affords the of both

the Fifth Amendment to the Constitu- U.S. article

tion and section Okla- view, my

homa Constitution. both the

conspiracy and murder part were and, accordingly, petition-

same transaction plea

er’s nolo contendré to one bars

subsequent prosecution of the other.

Rodney Anthony STARKS, Appellant, Oklahoma, Appellee. STATE

The

No. F-83-545. Appeals

Court Criminal of Oklahoma.

March O’Neal, Defender,

Johnie Asst. Public Tulsa, appellant. for Turpén, Atty. Gen., Michael C. Thomas Gen., Spencer, Atty. L. Asst. Oklahoma City, appellee. for OPINION BRETT, Judge: Anthony Starks, Rodney with, herein, charged for, and tried convicted in the District Court of Tulsa County, CRF-82-3227, No. Case of Know- Concealing ingly Property, Stolen 21 O.S. § 1981, 1713. He was sentenced to three years imprisonment ninety with all but days suspended. 1, 1982, September

On a Tulsa appellant officer a 1973 observed *2 1042 high

Grand Prix in reverse at a rate of without a cause. As speed. engaged emergency explained: The officer Justice Powell his equipment, appellant pulled and his car into The officer discretionary does not make a parking a lot. judg- determination to search on based ment that present. certain conditions are appellant Because did not have a driver’s Inventory searches are conducted in ac- regarding license and unclear his cur- was cordance depart- with established address, rent appellant the officer took into policy ment rules or and occur whenever TULSA, custody authority under the an automobile is seized. There are thus OKLA., 37, ORDINANCES, TITLE REV. special magistrate no facts for a neutral § 133(A)(Supp.1971). Appellant’s car was to evaluate. impounded, and the officer seized and in- purpose related of the warrant re- ventoried two televisions and a stereo quirement prevent hindsight is to from property the back seat of the car. This affecting the evaluation of the reason- burglary was later linked to a which had of a In ableness search.... the case of day. occurred earlier in the search conducted in accord- appeal pro- The lone issue on this is the police department ance with standard car, priety appellant’s of the search of and procedures, significant there is no dan- the seizure of the televisions and stereo. ger hindsight justification. justify The State seeks to this intrusion as Opperman, South v. Dakota 428 U.S. at a valid automobile search. 383, (Powell, J., 96 S.Ct. at 3104 concur- ring). It is clear searches, if conducted to stan clearly distinguishable This case is impoundment procedures, dardized are not Lee, from P.2d Kelly, violative of either the Fourth Amendment P.2d 707. both of those cases the initial to the Federal Constitution or to OKLA. pri confrontation commenced and ended on CONST, §II, 30. South Dakota v. property. vate In the appel instant Opperman, 428 U.S. 96 S.Ct. driving lant was observed a reckless (1976); State, L.Ed.2d 1000 Satterlee v. 549 manner, driving wrong in the reverse (Okl.Cr.1976). Thus, P.2d 104 before an lane of traffic at an excessive rate of may upheld, it must be speed. This initial offense was substantiat lawfully established that vehicle was im by appellant’s possess failure to a valid

pounded. license. The fact private property drove onto after the offi impoundment We held that the have emergency cer equipment turned on his if according lawful conducted to the au preclude pursuing does the officer from ordinance, thority of a or as a legal appel his task of confrontation with requirement police department regula permit lant. To such to interfere with the State, (Okl.Cr. tions. Lee v. 628 P.2d 1172 officer’s duties would be tantamount 1981); State, (Okl.Cr. Kelly v. P.2d 706 providing easy escape responsibili from 1980). The reason for this re threshold ty by the offender. quirement apparent by examining is made Once the officer commenced the fulfill- the basis for the search: The duties, ment of his he was authorized to impound appellant’s vehicle when the ar- the warrant or completed. rest was This function is like- requirements of either the supported by wise the officer’s observance fourth Amendment of the Oklahoma Con of items the vehicle that caused him to constitutionally stitution. It is a reason they might believe have been stolen. See only intrusion able because it is conducted State, (Okl.Cr.1979). Dick P.2d 1265 This dangers standardization eliminates those Impoundment personal liberty engendered by proceeding accomplished authority under the TULSA, ORDINANCES, City TI- Tulsa under the circumstanc- OKLA.REV. 126(A) out (Supp.1972). As set es enumerated: TLE hereinafter earlier, appellant drove onto the fact that has declared a 1. When vehicle been private property, under these circumstanc- impounded by and ordered nuisance es, impound- not vitiate the authorized will provisions court under the of Title inventory of the vehicle. ment and *3 Ordinances, Tulsa Revised Section 189: reasons, foregoing are of the For the we is left 2. When vehicle unattended should opinion conviction upon any bridge, causeway viaduct or or AFFIRMED. be any or tunnel where such tube vehicle traffic; constitutes an obstruction to BUSSEY, J., concurs. upon or 3. When a vehicle a street PARKS, P.J., dissents. highway is so disabled or as to defective PARKS, dissenting: Presiding Judge, constitute an obstruction or hazard to person persons traffic or and/or agree I respectfully Although by charge of the vehicle are reason of brother, by my much of what is stated with physical injury incapacitated to such Brett, Judge agree I cannot with his con- provide extent as to to for its be unable inventory in this clusion that removal; custody or proper. case was 4. is left unattended When vehicle majority opinion correctly Judge Brett’s upon by a street reason of arrest search, states that “[t]he otherwise, parked upon or is so driver or by any other street, highway public way or require- or cause to constitute a definite hazard or obstruc- or ments of either the Fourth Amendment traffic; the normal movement of tion to the Oklahoma Constitution. It is constitu- parked or left conduct- 5. When a vehicle is tionally reasonable because it is twenty-four standing to or excess of ” me, p. means Re- Supra at 2. To this hours in violation of Title Tulsa Ordinances, needed in the inven- Section 204. vised “[w]hat context, tory then is not ... cause language in this ordinance I fail to find regularized procedures rather a set of but auto- requiring seizure or of an guard against [police] ar- adequately which under the circumstances found mobile LaFave, II bitrariness.” Search & Sei- case. Because the this zure, A Treatise on the Fourth Amend- regularized authorized § 74(a), ment, p. predicate must 576. be law, under policy or it was unreasonable prior to seized made admission evidence Const, Amendment and Okla. the Fourth by that the pursuant municipal ordi- was conducted Therefore, DISSENT. police regulation. nance or wholly In this the State failed to majority

meet this burden. The states that

this was conducted under Ordinances, Ti-

authority of Tulsa Revised § 126(A). However, this

tle states:

ordinance Depart-

A. Members of the Police hereby are authorized to remove or

ment removed a vehicle from a garage highway to the nearest

street

designated by the Police maintained

Department or otherwise maintained