Abraham v. State

1998 OK CR 29, 962 P.2d 647, 1998 WL 295887

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 12, 1998
• Docket: F-97-463
• Status: Published

Opinions

ACCELERATED DOCKET ORDER

¶ 1 Appellant was found guilty after a non-jury trial before the Honorable E.R. Ned Turnbull, District Judge, in the District Court of Tulsa County, Case No. CF-96-4572, of Possession of Controlled Dangerous Substance. He was sentenced to three (3) years. From this Judgment and Sentence, Appellant appeals.

¶ 2 On appeal Appellant raised three propositions of error:

1. The officer lacked an adequate basis for conducting a stop of the Appellant;

2. The officer lacked an adequate basis for conducting a weapons search of the Appellant; and

3. Assuming the search was permissible, the officer had no right to seize an item he did not have reason to believe was a weapon.

¶3 Pursuant to Rule 11.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997), this appeal was assigned to the Accelerated Docket of this Court upon Petitioner’s application. The propositions or issues were presented to this Court in oral argument December 18, 1997, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court. It is the finding of this Court that the officer’s conduct in stopping Petitioner, searching him, and seizing the contraband found incidental to that search, was proper.

¶4 There was probable cause to stop Petitioner for questioning based upon the information presented to the officer in question and the officer’s duty to investigate a reported crime. We have stated that even when there is no probable cause to make an arrest, if an officer has “reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then [an investigative] stop may be made to investigate that suspicion.” Coulter v. State, 777 P.2d 1373, 1374 (Okl.Cr.1989); Peters v. State, 725 P.2d 1276, 1277 (Okl.Cr.1986). Moreover, as the offense reported was an offer to sell drugs, the officer had an adequate basis for conducting a weapons search of the Appellant. It was reasonable for the officer to conclude that Appellant might be armed, therefore justifying the weapons search. And, pursuant to the Supreme Court’s decision in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), seizure of the drugs was proper. The Court noted:

“If a police officer lawMly pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.” 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334, 345-46.

¶5 IT IS THEREFORE THE ORDER OF THIS COURT, by a three (3) to two (2) vote, that the Judgment and Sentence is AFFIRMED.

¶ 6 IT IS SO ORDERED.

¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7th day of January, 1998.

/s/ Reta M. Strubhar RETA M. STRUBHAR, Vice Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ James F. Lane JAMES F. LANE, Judge

CHAPEL, P.J., and JOHNSON, J., dissent.