State v. Rhodes
788 P.2d 1380
Okla. Crim. App.
1990
Check Treatment

*1 Elizabeth J. Dudash Dudash,

Elizabeth J.

Panel Member Oklahoma, Appellant,

STATE RHODES, Appellee. Kentt Lamar Cohen, Atty., L. Dist. Tul- Mitchell Asst. sa, appellant. for No. S-89-614. Fischer, Tulsa, appellee. Jeffrey D. Criminal

Feb. OPINION 21, 1990. As Feb. Corrected PARKS, Presiding Judge: April Rehearing Denied 8, 1988, Tulsa Police On November Offi- pulled Chevy

cer Brian Comfort over signal Blazer for failure to hand approached the turn. As Officer Comfort vehicle, recognized it as the same Blazer he attempted stop he had about two which time, earlier. At that Officer Com- weeks over a routine pulled fort had the Blazer he inside the ve- stop traffic noticed view, hicle, laying plain empty holsters However, during shotgun holders. off and stop, that traffic the Blazer took him. eluded incident, previous Officer Based on the driving appellee, had the who was Comfort Blazer, step out and stand at rear pat-down search. The vehicle for not the appellee officer realized that incident, but he same driver of the earlier appellee might was still concerned weapon. appellee’s hands were Blazer and Officer placed on the roof of the arms, at the Comfort started body. down moving search, During appellee moved right hand from the roof and reached his into, inner left breast or in toward the Thinking jeans. ap- that the pocket of reaching weapon, Officer pellee for a grabbed appellee’s hand and Comfort *2 1381 the Blazer. OFFFICER COMFORT: I didn’t think it it on the roof of placed back appel- weapon.” then reached inside the was a The officer doing jacket pat pocket. While lee’s (O.R.38). so, crinkling sound Officer Comfort heard Thus, ap- once the officer ascertained that baggie. He also plastic resembled a that pellee weapons person, no on his had small, hard, Fig- objects.' some round felt to search him terminated and the contraband, objects uring the to be pocket warrantless search of the was un jacket appellee’s reached inside the officer State, lawful. Neal v. See baggie which pocket pulled and out a small (Okl.Cr. 1985). crack cocaine. contained Therefore, the order of the Tulsa District County Appellee charged in Tulsa Court is AFFIRMED. Court, CF-88-4532, with District Case No. Drug, Possession of a Controlled Unlawful LANE, V.P.J., JOHNSON, J., preliminary hearing A was held Cocaine. concur. 13, hearing, At the on December Special Magistrate Jesse Harris sustained BRETT, J., concurs in results. suppressed the appellee’s demurrer and LUMPKIN, J., dissents. evidence, ruling that Officer Comfort had pock- legal right appellee’s no to search LUMPKIN, Judge, dissenting: appealed ruling, and on et. The State respectfully I must dissent to the Court’s 1989, 3, January hearing was held before in this case. decision Jay Dalton. At that hear- the Honorable Judge Harris’s ing, Judge Dalton affirmed scope of a The Court determines ruling, holding that Officer Comfort had “Terry pat-down” strictly must be limited legal a search exceeded the limitations for weapons. to a for offensive While I Ohio, 1, out in Terry as set U.S. application Terry concur with 1868, (1968). S.Ct. Pursu- 1868, Ohio, 1, 88 S.Ct. 20 L.Ed.2d 1089.1, O.S.Supp.1987, to 22 the State ant (1968), § purpose as to the basis and appeal. brings this intrusion, agree I cannot with initial is the rationale that a officer who brief, agrees In that its the State war- legally conducting Terry search and dis- per rantless searches and seizures are se disregard illegal covers contraband must under the Fourth Amend- unreasonable just because it is not a contraband States, ment. See Katz v. United 389 U.S. interpretation completely weapon. This 347, 507, (1967). (touch)” disregards the However, argues excep- the State that two “exigent exceptions to the circumstance” exigent applicable tions are this case: requirement. search warrant plain view/plain circumstances and touch. disagree. We doc- application of the a novel trine to other human senses is not “Terry scope pat-down” previously We have issue for this Court. strictly is and must limited to a search be smell to serve as a allowed the sense of weapons. When in the course for offensive uphold probable cause to a war- basis object, a frisk the officer feels an he is Ferguson rantless search and seizure. See seizing it justified not it unless reason State, (Okl.Cr.1974), P.2d 819 ably weapon. an offensive resembles State, (Okl.Cr.1977). P.2d 83 Gray v. State, (Okl. Francis v. 584 P.2d enforce- logical It not to hold that a law is Cr.1978). State, also Ricci v. See disregard he officer must ment (Okl.Cr.1973). A review of the he of a crime when is knows to be evidence following: record reveals right to in a where he has the Now, you patted “THE COURT: performing Terry search. is valid pocket, of this inside and felt the outside II, material, that article plastic crinkly previously held and'this did We you weapon? think it was a section 30 of Oklahoma quoted n. of the L.Ed.2d and the Fourth Amendment [61 235] [United Constitution are almost exactly the same in States v.] Ross, 655 F.2d [1159] at 1170 wording, are identical. [D.C.Cir.1981], and in substance Officer Medaris unavoid P. Okl.Cr. ably gun felt the outline of as he drew *3 DeGraff v. (1909). also, v. Long See bag from the paper the out under seat. (Okl.Cr.1985). Therefore, interpreta 915 Uncovering touch sense of re tions Amendment of the of the Fourth U.S. require vealed did not a warrant. See by other state federal and 1313, Portillo, F.2d United States v. 633 of in courts on this are arriv issue benefit Cir.1980) (9th (police 1320 officer rested ing proper application the in this case. at bag lying in car trunk felt hand on and at handgun). outline of 655 F.2d D.C.Circuit, Appeals, Court of

The U.S. provided compendium authority a has of “plain exception has The touch” also Williams, this in 822 F.2d issue U.S. v. Diaz, in applied v. 577 F.2d 821 been U.S. (D.C.Cir.1987). the 1174 In U.S. Williams (2d Cir.1978), 650 Ocampo, and v. F.2d U.S. of light of held that “In (2d Cir.1981). 421 authority, strongly even more we endorse Appeals, The U.S. Court of Fourth Cir- Russell, in our that no earlier conclusion cuit, analyzed concept this extended of opening warrant is needed for an Norman, in 701 v. F.2d U.S. container whose contents become known (4th Cir.1983), 295 in the context of odor touching through a lawful the outside.” of the a alone as basis for warrantless search Id. at 1184. The Court then set out three and seizure. First, principle: limitations on this the plain court held that en This has exception only applies touch” where compasses simply seeing more than con legally an officer is authorized to touch the Rather, to object for an be in traband. Second, place; in container the first the view, plain only it must ‘obvious to any use of doctrine would not sanction the added) (emphasis the senses.’ United beyond justified by sense touch that of the Sifuentes, 845, v. 504 F.2d 848 States container; initial the contact with (4th Cir.1974). To be obvious to Third, package a the contents of cannot be senses, only reveal it contraband need plain deemed in view unless a lawful touch one way self in a characteristic to of ing the officer convinces to reasonable Thus, in senses. United certainty that the container holds contra Sifuentes (4th 669 F.2d 201 Haley, States v. Cir. at band or evidence of a crime. Id. 1982),it was held that odor alone is suffi The in was a item touched Williams brown place marijuana plain cient to into view. large paper bag bag which contained “five police opened In a truck Sifuentes, gies baggies containing 44 her with small impoundment and after discovered sever strong oin”. at Id. 1177. The Court relied Russell, al cardboard The boxes were boxes. ly on in its decision U.S. v. marijuana. 31, (1981), and found to contain searched U.S.App.D.C. 655 F.2d 1261 (Russell I), court that the odor of the mari The held part, modified vacated 165, (Rus juana in the to U.S.App.D.C. truck was sufficient F.2d denied, 1108, plain II), the contraband into view. 504 F.2d sell cert. (1982). In Similarly, Haley, S.Ct. at 848. court Rus gar item upheld sell the touched and seized was warrantless search paper bag containing marijuana. bags nine-millimeter to contain bage found The Browning handgun. automatic Rus While it did so on basis of both the sell Court determined packages’ configuration and distinctive marijuana, court the smell made recognized

Both and Ross an Sanders that odor alone was sufficient. clear exception requirement to the warrant imply not ‘We do both distinctive can contents ‘the[ ] [of container] configuration necessary and odor are appear be inferred from outward [its] containers,' Sanders, justify the ance.’ [Arkansas v.] at [753] 765 n. 99 S.Ct. [2586] at wrote court, for ‘odor alone is suffi- Chrisman, as Washington 1, 6, dent cause to search such containers 455 U.S. 812, 816, (1982). cardboard boxes.’ 669 F.2d at 204 n. 3. 102 S.Ct. Haynie, See also United States exception applies This if it is shown that: 227, 233, (4th Cir.1980). F.2d (1) legitimately posi- The were in a F.2d at 297. view; (2) tion to obtain the object The view; (3) in plain incriminating The Supreme Court of Colorado has re readily appar- nature of the article was cently on this exact fact ruled situation ent; (4) discovery of the article People Hughes, (Colo. Coolidge v. New inadvertent. 1989). doing pat- As a detective was Hampshire, 403 U.S. Hughes weapons, down search of *4 State, (1971); Fritz v. Hughes “dropped right his arm and ducked (Okl.Cr.1986); Teeman v. P.2d head in a manner over” which caused State, (Okl.Cr.1983). 664 P.2d 1071 trying the detective to that he believe was something right pock to conceal in his shirt long It has been established that the Hughes right et. The then felt detective protects Fourth Amendment people and not pocket cylindrical object. and felt a hard States, simply places. Katz v. United object removed and to found opened film canister. The it detective (1967). Further, it has been established Id. at plastic bags found two of cocaine. underlying the purpose of an initial discovery 1203. The court held that the of pat-down protect search to police is offi- during pro contraband a lawful frisk can cer from immediate harm due to an individ- probable thorough vide cause for a more Terry, carrying weapon. ual at Id. at 1206. Citing United States search. 25-26, However, logi- 88 S.Ct. at 1882. the Chavez, v. (10th Cir.1987); 812 F.2d 1295 application principles cal of the set forth Lee, People Cal.App.3d 240 Cal. “plain exception under the view” in con- Tate, (1987); People Rptr. junction right with the established (Colo.1983) Hughes P.2d the court not Terry police officer to conduct a search ed that evidence discovered the course of weapons would allow seizure of or contra- weapons a lawful search generally for is during properly band discovered conduct- admissible, object even when the which the pat-down. ed weapon, long not a discover is as as discovery authority its as was reasonable under all of Court cites for its deci- State, Id. at 1205. The con the circumstances. Ricci v. sion in this case State, (Okl.Cr.1973); tents of the Francis v. canister could not be deter State, by mined observation the (Okl.Cr.1978); but this case and Neal v. P.2d 1359 opened pursuant court held that it could be (Okl.Cr.1985). Each of these to the search warrant issued on the premis per- the decisions is based what Court scope es because it was within the of the Terry. proper application ceived as a of likely search warrant as a vessel to contain These decisions were not rendered on an Id. at 1206. cocaine. independent Each state basis. of deci- Terry sions found that the initial recently guide- We have reaffirmed the however, proper, since the items seized applied application lines to be in the of wbapons they were not ruled exception to the warrant re- rigid supressed. application must be This quirements of the Oklahoma and Federal See, Terry requires disregard of the officer to Lyons Constitutions. (Okl.Cr.1989). activity contraband or evidence of criminal In Lyons we P.2d at 461 legitimately stated which he has discovered through probable his senses has cause ‘plain exception view’ to the Fourth [t]he type discovery to seize. This of meets all requirement Amendment per- warrant (touch)” the criteria of the war- mits a law enforcement officer to seize clearly exception rantless search and seizure we incriminating is evidence or recognized previously pursuant contraband when it is to discovered right where the officer has a and the to be. both the United States Constitution of the State principles application Adopting this deprive a defendant

discussed would not judicial of the reason- to review police officer’s actions of the

ableness compliance with established

the officer’s Suppress to would

guidelines. A Motion if the trial court to determine

require the applying the after was admissible

evidence law rules forth in the case

facts set Therefore, apply I would criteria

cited. Williams, reverse the order

set forth in evidence, suppressing trial court to the District Court

and remand case proceedings. County further

of Tulsa *5 RAY, Appellant,

Larry Kenneth Oklahoma, Appellee.

STATE

No. F-87-551. Criminal

March April

Rehearing Denied