In each case, the trial judge must determine whether the officers went to the place to make a lawful arrest, and in making it, looked for evidence lawfully subject to seizure or whether the officers used a pretended arrest for one offense as a "trojan horse" in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in greater crime. Handly at page 834. [Handley v. State, 430 P.2d 830 (Okl.Cr. 1967)]
Appellant contends that his arrest on a municipal bench warrant was a subterfuge to gain entrance to his home in order to search for evidence of other offenses, specifically illegal drugs, without having the benefit of a search warrant.
From the majority opinion in Lyons v. Clark, 1989 OK CR 86, 787 P.2d 460:
In support of his proposition Appellant directs this Court's attention to four cases, each from a different court, wherein it was held that the arrest was merely a pretext for an unlawful search. See United States v. Causey, 818 F.2d 354 (5th Cir. 1987), [787 P.2d 462] McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950), Harding v. State, 301 So.2d 513 (Fla.App. 1974), and Handley v. State, 430 P.2d 830 (Okl.Cr. 1967). A review of these cases reveals that in evaluating alleged violations of the Fourth Amendment the relevant test is whether the search was reasonable under the facts and circumstances of the case. In upholding the Appellant's claim in Causey, the Fifth Circuit relied on Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), wherein the United States Supreme Court stated that the critical question is an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. The subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional. 818 F.2d at 358.
A review of the facts of each of the cases cited by Appellant reveals situations wherein the arrest was clearly made to avoid operation of the Fourth Amendment. In Causey, a police officer testified that the sole reason for arresting the defendant on a seven year old warrant for failure to appear for a misdemeanor charge was to gain the opportunity for custodial interrogation of the defendant regarding a bank robbery. In McKnight, officers rejected an opportunity to arrest the defendant on a public street for carrying on a lottery, and instead waited until he entered a house, for which they had no search warrant, in order to seize evidence they hoped to find. In Harding, officers went to the defendant's house to arrest another individual with the clear knowledge that the defendant was involved in the local drug scene.
In Handley v. State, 430 P.2d 830 (Okl.Cr. 1967),the only case from this Court cited by Appellant, county sheriff's deputies, accompanied by two State Narcotic Agents, attempted to serve the defendant with an arrest warrant for the offense of second degree Burglary. As the officers approached the door to serve the warrant, they could see the defendant and his wife run into the bathroom and then return to the front door to admit the officers. Upon entering the house, the officers immediately went to the bathroom to see what had been hidden by the defendant and found drug paraphernalia. The narcotics officers then proceeded to crawl underneath the house and discovered a fruit jar containing morphine. This Court held that the facts did not constitute a reasonable search incident to the arrest for burglary. We stated that the conduct of the officers showed that the arrest warrant was a subterfuge for gaining entrance to the house and searching the premises without obtaining a search warrant. The Court specifically noted the pertinent facts resulting in that conclusion: the presence of State Narcotics Agents to serve a warrant for burglary, that the warrant was not one in which the officers would have been looking for evidence to support the burglary charge (as the defendant had been previously arrested on the same charge and it was assumed that the state had previously found the evidence for the burglary charge), and that the narcotics agents "miraculously discover[ed]" the fruit jar buried underneath the house. Id. at 832-833. This Court concluded that the proper test of a reasonable search and seizure is based upon the entire factual situation. In each case, the trial judge must determine whether the officers went to the place to make a lawful arrest, and in making it, looked for evidence lawfully subject to seizure or whether the officers used a pretended arrest for one offense as a "trojan horse" in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in greater crime. Id. at 834.
The above is from Judge Lumkin’s opinion in LYONS v. STATE, 1989 OK CR 86, 787 P.2d 460, which ruled against the defendant and upheld the conviction despite the “Trojan horse” arguments.
Trojan horse entry of home to serve city arrest warrant and search home
Necessity Defense and the Fleeting Moment Defense - Jury Instructions
Defenses to Possession of Firearm After Prior Conviction of Felony or Possession of Controlled Drug: Necessity Defense and the Fleeting Moment Defense
http://www.kscourts.org/ca10/cases/2006/07/03-4158.htm
U.S. v. HAYDAR HAMEED AL-REKABI, No. 03-4158 (10th Cir. July 17, 2007)
A defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury’s finding in defendant’s favor on that theory. See United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999); United States v. Swallow, 109 F.3d 656, 658 (10th Cir. 1997).
The Fifth Circuit earlier emphasized the knowledge or intent element of the fleeting possession theory when it discussed it in the context of a drug possession case: “[Defendant’s] possession of the one [marijuana] cigarette was a mere fleeting possession, not inconsistent with honest intention or mere curiosity, and his throwing the cigarette away upon being ordered to stop is not, in our opinion, substantial evidence of a guilty knowledge or intent. Criminal intent is a sine qua non of criminal responsibility.” Rent v. United States, 209 F.2d 893, 900 (5th Cir. 1954); see also United States v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary is immaterial” to prosecution for possession of unregistered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S.C. § 922(g), this court noted “federal firearms laws impose ‘something approaching absolute liability.’” United States v. Marquez, No. 90-1230, 1991 WL 145264, at *2 (10th Cir. Aug. 1, 1991) (cited as persuasive authority pursuant to 10th Cir. R. 36.3) (quoting United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983)).
“If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.” See, United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999).
Consider United States v. Panter, 688 F.2d 268 (5th Cir. 1982), one of the principle cases relied upon by Adkins. 196 F.3d at 115. There, the Fifth Circuit held the defendant, a former felon, who reached under a bar to grab a handgun to fend off a convicted murderer who was assailing him by stabbing him in the abdomen was justified in doing so. 688 F.3d at 269, 272. Based on our precedent, such conduct, if adequately established, would clearly fall under the necessity defense, as it did in Panter itself. 688 F.3d at 272 n.7 (discussing the differences between a "self-defense" and "necessity" justification and concluding defendant met both). Panter's discussion of the temporary nature of the defendant's otherwise illegal possession of the firearm was tied to the necessity defense. The court pointed out that "our holding protects a . . . defendant only for possession during the time he is endangered. Possession either before the danger or for any significant period after it remains a violation." Id. at 272. We find Panter's discussion of the temporary nature of the necessity defense in accord with our own view.
Independent Evaluation of 3rd Party Consent to Search Containers Separate from Premises
Apparent authority for third party consent requires the court to> independently evaluate the consent's authority over containers onthe> premises separate from the premises. Authority over containers maybe> obviously or apparently limited. United States v. Smairat, 2007 U.S. Dist.> LEXIS 57769 (N.D. Ill. August 8, 2007)
