Brief in Support of Motion to Quash & Suppress

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA

STATE OF OKLAHOMA,
Plaintiff,
vs.

Defendant. Case No.

BRIEF IN SUPPORT OF MOTION’S TO QUASH THE ARREST
AND/OR TO SUPPRESS EVIDENCE

Comes now the Defendant above by and through counsel, Glen R. Graham, and for the brief in support of the motion to quash the arrest and/or to suppress evidence would inform the court as stated hereinafter.

AUTHORITIES IN SUPPORT OF MOTION
INSUFFICIENT EVIDENCE OF DOMINION & CONTROL:

In, Brown v. State, Okl.Cr., 481 P.2d 475 (1971), the court held that where a person is present where marihuana is found, but does not have exclusive access, use, or possession of the premises, it may not be inferred that he had knowledge of the presence of marihuana and had control of it, "unless there are additional independent factors showing his knowledge and control." Further, the Court held that possession means more than just being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed; and, that mere proximity is insufficient proof of possession.
In the Staples v. State, 1974 OK CR 208, 528 P.2d 1131, the court held that proof of mere proximity to a prohibited substance is insufficient. Whether the case is tried on the theory of sole or joint possession, proof that the accused was present at a place where drugs were being used or possessed is, in and of itself, insufficient to justify a finding of possession. There must be additional evidence of knowledge and control. In accord, McCarty v. State, supra; McBride v. State, Okl.Cr., 507 P.2d 63 (1973); Osburn v. State, Okl.Cr., 497 P.2d 471 (1972); Riggs v. State, Okl.Cr., 486 P.2d 643 (1971); Brown v. State, Okl.Cr., 481 P.2d 475 (1971).
As cited in the Staples case, supra, many cases from other jurisdictions have explicitly recognized the principle that the mere presence of the defendant in even such a confined area as an automobile interior in which illicit drugs are found does not, standing alone, constitute sufficient proof of his possession of such drugs. See e.g., Arellanes v. United States, 302 F.2d 603 (9 Cir. 1962); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); Pryor v. State, 48 Ala.App. 465, 265 So.2d 907 (1972); People v. Connie, 52 Ill. App.2d 221, 201 N.E.2d 641 (1964); State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967); Payne v. State, Tex.Cr.App., 480 S.W.2d 732 (1972); State v. Olson, R.I., 319 A.2d 27 (1974); Holden v. State, Del. Supr., 305 A.2d 320 (1973); Corrao v. State, Ind. App., 290 N.E.2d 484 (1972).
Holden v. State, supra, is particularly apposite here. In that case an automobile owned and operated by Holden was stopped by the police on an informant's tip. There were three passengers riding in the car with Holden. On the back seat between two passengers was a container of Chinese food and in it a plastic bag containing heroin. Stating that the law places a heavier burden upon the custodian of an automobile than upon a mere passenger in this respect, the Delaware Court held that the evidence was sufficient to sustain the conviction of the driver of the automobile but insufficient to establish that the passengers had dominion and control over the narcotic and hence insufficient to establish the "possession" prohibited by law.
The facts in Payne v. State, supra, are also similar. The defendant in that case was a passenger seated in the front seat of an automobile in which a matchbox containing a narcotic substance was found upon the dashboard. Inn Payne v. State, supra, the Texas court held that such evidence was insufficient to justify the conclusion that the passenger knowingly possessed the narcotic substance.
In the Staples case, supra, the evidence showed that the defendant was neither the owner nor the operator of the vehicle; there was no evidence direct or otherwise that the vehicle was under his control. The only evidence of his contact with the grocery sack containing the baggie of marijuana was that, upon inquiry by the police officer, the defendant held it out for the officer's inspection. There is no evidence that he was under the influence of marijuana at the time of his arrest; that he had marijuana on his person, or that his conduct preceding or following his arrest was in some way suspicious or incriminating. There is, in short, a total absence of "additional independent factors" from which it may be fairly inferred that he knew of the presence of the marijuana or its location in the vehicle. The evidence shows only that Staples was a passenger in the vehicle sitting close to the concealed drug. The court held there was insufficient evidence of dominion and control in such circumstances.

SCOPE OF THE SEARCH EXCEEDS BASIS FOR SEARCH
AND ILLEGAL DETENTION AND CONSENT INVALID

The U.S. Supreme Court case of Wyoming v. Houghton (98-184) 526 U.S. 295 (1999) 956 P.2d 363, was based upon the facts of that case which are distinguishable from the facts of the case at bar. In Houghton, the court upheld the search of a passenger’s purse based upon the fact that the driver had a drug syringe sticking out of his pocket and the strong probability that there would be additional drug evidence in the vehicle. Houghton’ s purse was in the vehicle and the officer searched the purse for drugs and the court upheld the search as legal.
A routine traffic stop is a seizure under the Fourth Amendment. U.S. v. West, 219 F.3d 1171 (10th Cir. 2000). Its reasonableness must be judged under the principles of a Terry analysis. That analysis is based on two questions: Was the stop justified at its inception? And were the officer’s actions during the detention reasonably related in scope to the circumstances which justified the interference in the first place? Terry v. Ohio, 88 S.Ct. 1868 (1968). In the event that the scope of the search exceeded the justification for the stop then the search is illegal under a Terry analysis.
In United States v. Botero-Ospina, the Tenth Circuit found that “if an officer’s initial traffic stop, though objectively justified by the officer’s observation of a minor traffic violation, is motivated by a desire to engage in an investigation of more serious criminal activity, his investigation is nevertheless circumscribed by Terry’s scope requirement.” 71 F.3d 783, at 788.
In United States v. West, the court held that a traffic stop may become a consensual encounter “if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” Supra, at 1176. However, the court goes on to say that
Whether an encounter can be deemed consensual depends on “whether the police conduct would have conveyed to a reasonable person that he or she was not free
to decline the officer’s requests or otherwise terminate the encounter.” At 1176.

The court in West held that any “coercive show of authority” including use of a “commanding tone of voice” may suggest that a detention has not ended. At 1176.
The question of consent versus coercion is not based on a single factor, but rather on the totality of the circumstances.
In determining whether a driver and police officer are engaged in a consensual encounter in the context of a traffic stop, there are few, if any bright-line rules….Instead, the court must focus on the totality of the circumstances in a particular case….In particular, ‘a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ United States v. Elliot, 107 F.3d 810 (10th Cir. 1997) at 813.

The court in Elliot stressed that “the return of documentation would render a subsequent encounter consensual only if a ‘reasonable person under the circumstances would believe he was free to leave or disregard the officer’s request for information.’ Supra at 813.
It is the burden of the state to demonstrate that the consent to a search was voluntarily given. See, U.S. v. West, Supra at 1177.
Terry v. Ohio, 392 U.S. 1, (1968), authorizes a protective pat down of a person’s clothing when articulable suspicion alerts the officer to a legal basis for approaching the individual. A pat down pursuant to a Terry investigative detention must be solely used to discover weapons and not evidence of a crime.
The rule in Oklahoma concerning a warrant-less arrest or search is that the burden is on the prosecution to prove it was lawful, once it is challenged. Leigh v. State, 587 P.2d 1379 (Okla. 1978), Greene v. State, 508 P.2d 1095, 1100 (Okl.Cr. 1973).
The standard in Oklahoma concerning a seizure of the person or an arrest in an objective standard and not a subjective standard. It has been held that the facts that allegedly justified a particular seizure must be judged against an objective standard and that the good faith or an inarticulate hunch of the arresting officer is not enough. Revels v. State, 666 P.2d 1298 (Okla. 1983).
An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. Title 22 O.S. Sec. 190.
If a suspect is interrupted and his liberty of movement is restricted by an arresting officer, then the arrest is complete. Castellano v. State, 585 P.2d 361 (Okla. 1978), citing in support, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Arrest is the taking into custody of the defendant and does not depend upon the exact words used by the arresting officer. “No particular form of words is necessary to constitute an arrest.” Henry v. State, 494 P.2d 661, 663 (Okla. 1972), citing Heinzman v. State, 283 P. 264 (1929). It is apparent that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
It has been held that one does not have probable cause to arrest unless he has information or facts which, if submitted to a magistrate, would require the issuance of an arrest warrant; mere suspicion is not enough. Beeler v. State, 677 P.2d 556 (Okla. 1984), in accord, Jacobson v. State, 684 P.2d 556 (Okla. 1984).
The test for a valid warrant-less arrest is whether at the moment the arrest was made the officer had probable cause to make it and whether at that moment the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense. Castellano v. State, 585 P.2d 361 (Okla. 1978), in accord, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Moran v. U.S., 404 F.2d 663 (10th Cir. 1968); State v. McLemore, 561 P.2d 1367 (1977).
In Minnesota v. Dickerson, (1993) the court held that if an officer in conducting a lawful search for weapons discovers an object by feeling the outer clothing that could be either a weapon or contraband and the officer recognizes it and can identify it by “plain feel” prior to removing the same from the clothing then it is a lawful search and the officer can remove it. In Dickerson, the court upheld the stop and pat down of an individual leaving a drug house but suppressed the search as the officer did not know what the lump in the pocket was prior to removing it.
In Sibron v. New York, 392 U.S. 40 (1968), the court ruled that no probable cause existed for the stop thereby derogating the officer’s justification to search for weapons. Quoting Chief Justice Warren in Sibron, “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (p.1903)
There is no specific amount of time that is an acceptable lapse of time between the time of arrest and the time of the search. However, in U.S. v. Sharpe, 470 U.S. 675 (1985), the court announced that for a detention to remain acceptable the police must pursue the investigation diligently. In Sharpe, the suspect was detained for 20 minutes before the inception of the vehicle’s search and the court believed that the delay was not intentional by the officer, but still held the search was illegal as the product of unreasonable delay.
The Tenth Circuit has ruled that a defendant was illegally seized while agents held his driver’s license for over 20 minutes, see U.S. v. Little, 60 F.3d 708 (10th Cir. 1995).
In Florida v. Royer, 460 U.S. 491 (1983), the court noted, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (p.1320). In U.S. v. Place, 462 U.S. 696 (1983), involved an illegal detention that lasted 90 minutes. A man’s luggage was seized until a narcotics K-9 was brought to the airport to confirm the officers’ suspicion of drugs. The police had prior knowledge of the man’s arrival but had not prepared for the essentiality of the drug dog when the man failed to consent. The delay was held to be unreasonable.
Mere nervousness and inconsistencies did not validate a continued traffic stop in U.S. v. Mesa, 62 F.3d 159 (6th Cir. 1995), limited by U.S. v. Guimond, 116 F.3d 166 (1997).
The Tenth Circuit held that consent to look in a trunk was not consent to open all containers within the trunk, see, U.S. v. Elliott, 107 F.3d 810 (10th Cir. 1997).
In Knowles v. Iowa, 525 U.S. 113 (1998), the Supreme Court held that a police officer was not justified in conducting a full-blown search of a motor vehicle based upon a speeding offense. In Knowles, the State of Iowa had passed a law that in any case where a speeding citation or other citation was issued that the police could conduct a search of the motor vehicle. The Supreme Court held that such a law was unconstitutional and a violation of the 4th Amendment to the U.S. Constitution because there was no evidence of speeding that would be obtained by allowing a search of the vehicle.
It has been held that an arrest is not justified by what a subsequent search discloses. Greene v. State, 508 P.2d 1095 (Okla. 1973), 361 U.S. 103, in accord, State v. McLemore, 561 P.2d 1367 (Okla. 1977).
It is well settled in Oklahoma that before one may be convicted of possession of a controlled drug the State must prove that the accused had the requisite knowledge, dominion and control. See, Magann v. State, 601 P.2d 123 (Okla. 1979), [no link other than the accused was the driver of the stopped car in which marijuana was found. In Magann, he made no incriminating or conflicting statement that it was his (same is true in this case)]; Freeman v. State, 617 P.2d 235 (Okla.Cr. 1980), [truck the accused was driving was searched after his arrest on unrelated charges. Marijuana was located under the front seat and an unmarked container of pills was found in the glove compartment. Prescription pills issued to his ex-wife were located on the dashboard. Testimony at trial revealed that no inquiry had been made of the accused, his wife or the father who owned the truck, as to the ownership of the pills.]; Doyle v. State, 759 P.2d 223 (Okla.Cr. 1988), [drugs found not on the accused but on premises that several people had access to]; Staples v. State, 528 P.2d 1131 (Okla.Cr. 1974)[see cases cited from other jurisdictions which have held that the mere presence of the accused in the confined area or an automobile interior where illegal drugs are found is not sufficient to convict); see also, Hishaw v. State, 528 P.2d 1131 (Okla.); Brown v. State, 481 P.2d 475 (Okla. 1971).
The Tenth Circuit Court of Criminal Appeals has recognized three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment[;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity[;] and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause. United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996) (quotations omitted). In determining whether a police-citizen encounter is consensual, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)); see also United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc). No per se or absolute rules govern this inquiry. See Ohio v. Robinette, 519 U.S. 33, 39 (1996); Little, 18 F.3d at 1503-04. "Rather, every case turns on the totality of the circumstances presented." Little, 18 F.3d at 1503.
The Tenth Circuit has identified various factors relevant to whether a reasonable person would not feel free to terminate the encounter with police:
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public. United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). The 10th Circuit has "steadfastly refused to view any one of these factors as dispositive." United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
Wherefore, Defendant does pray that the court grant a hearing on the motions and review this brief and the evidence and based thereon sustain the motions filed in this case.

Respectfully submitted,


Glen R. Graham
Attorney for Defendant
1612 S. Cincinnati Ave
Tulsa, Oklahoma 74119 (918) 583-4621

Certificate of Service

This is to certify that the undersigned hand delivered a true and correct copy of the above and foregoing to the Tulsa County District Attorney, 9th Floor, 500 S. Denver, Tulsa, OK, on the same day it was filed with the Tulsa County Criminal Court Clerk.

By:_________________________
Glen R. Graham