DARITY v. State

2009 OK CR 27, 220 P.3d 731, 2009 Okla. Crim. App. LEXIS 26, 2009 WL 3166637

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 2, 2009
• Docket: F-2007-1192
• Status: Published

Opinions

OPINION

LEWIS, Judge.

T1 Clifford Dale Darity, Appellant, was tried by jury in the District Court of MeCur-tain County, Case Number CF-2006-519, and found guilty of Count I, trafficking illegal drugs, in violation of 63 0.8.8upp.2004, § 2-415; Count II, possession of a controlled substance with intent to distribute within 2,000 feet of a school, in violation of 68 0.8.Supp.2005, § 2-401(F); and Count III, unlawful possession of drug paraphernalia, in violation of 63 00.98.2001, $ 2-405(B). The jury sentenced Appellant to forty (40) years imprisonment and a $100,000 fine on Count I, life imprisonment and a $200,000 fine on Count II, and one (1) year in the county jail and a $1,000 fine on Count III. The Honorable Michael DeBerry, Associate District Judge, imposed judgment and sentence accordingly. Mr. Darity appeals.

FACTS

¶2 On October 12, 2006, state and federal law enforcement agents executed a search warrant on Appellant's mobile home and a nearby shop building located about 1,400 feet from a public school in Eagletown, Oklahoma. The searchers discovered and confiscated over 152 grams of what proved to be methamphetamine in various containers, three sets of digital scales, more than three pounds of marijuana in various packaging, 24 grams of cocaine, and over $14,000.00 in cash.

T3 For safety reasons, the agents who obtained the search warrant planned in advance to conduct the search when Appellant was away from the residence. In connection with this plan, they knew Appellant had reported a breakin at his business. On the day of the search, a property erimes investigator arranged to meet Appellant at his place of business to discuss the break-in investigation. When Appellant arrived at the business for the meeting, the property crimes investigator signaled the waiting search team. An investigator then went to the door of Appellant's mobile home, announced "Police. Search warrant," and knocked. Hearing no response inside, he forcibly entered the residence. Agents then made an initial protective sweep of the premises and secured the nearby shop. Appellant's wife soon arrived at the residence, along with her young child. An officer informed Mrs. Darity that he had a search warrant for the residence and that she was not under arrest at that time. Police then searched and detained Mrs. Darity and continued their search of the premises.

T4 According to the agents' plan, if they developed probable cause to arrest Appellant during the search they intended to arrest him immediately at his place of business. During the initial sweep of the residence, the agents discovered marijuana in plain view. Two agents then left the residence, drove the short distance to Appellant's business, and arrested him for possession of marijuana. In the search of his person incident to arrest, the agents seized $960 from his person as evidence. After being advised of his Miranda rights, Appellant confessed that the drugs and paraphernalia in the house belonged to him, telling the agents to "put it all on me." Appellant was transported to the McCurtain County Jail. During the remaining search of the premises, the agents recovered the trafficking quantity of methamphetamine, the cocaine, digital scales, and cash. Mrs. Darity was subsequently released and never charged. Appellant denied possession of the contraband in his testimony at trial.

ANALYSIS

15 The Court granted oral argument in this case, which was largely devoted to a consideration of Appellant's Proposition Five.¹ In that claim, Appellant argues that the search party violated the requirements of 22 0.98.2001, § 1227 by failing to personally serve him with a copy of the search warrant, and the resulting evidence must be suppressed. Appellant filed a motion to suppress the evidence on this ground in the District Court. After hearing argument of counsel, the District Court denied the motion. We review a ruling on a motion to suppress evidence for abuse of the District Court's discretion. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141-42. The burden of proving the invalidity of a search warrant rests on the accused who seeks to suppress the resulting evidence. Daniels v. State, 1967 OK CR 165, ¶¶ 4-6, 441 P.2d 494, 495-96. Although defense counsel presented argument to the Court concerning the alleged failure to serve Appellant with a copy of the warrant, the record contains no actual evidence to support the claim. In fact, the search warrant return filed after the search recites that the same was served on Appellant. As the burden to produce any contrary evidence was Appellant's, we have no basis on this record to say that the District Court abused its discretion in denying the motion to suppress.

16 We find it appropriate to also discuss Appellant's argument that the agents' diversionary tactic of having Appellant meet another officer elsewhere, and executing the warrant when Appellant was away from the scene, amounted to an unlawful evasion of the personal service requirements of section 1227 and invalidated the search. In answer to this question, we first turn to the language of the statute itself:

A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.

We faced a similar argument concerning the proper service of warrants and section 1227 in Pennington v. State, 1956 OK CR 98, 302 P.2d 170. In that case, officers searched a residence when the occupants were not present and left a copy of the search warrant inside the residence on a television set. The defendants found the warrant on their return and moved to suppress the evidence due to a violation of section 1227.

T7 The appellants in Pennington argued that because section 1227 made "no provision as to what constitutes service of the search warrant," the Court must apply a strict construction under which personal service on the defendant is required. Pennington, at ¶ 9, 302 P.2d at 173. We rejected such an absolute rule, for reasons that bear repeating here:

We are of the opinion that to so hold would constitute a narrow and strained construction since all the constitution requires is that the search and seizure be reasonable. If such were not the case, reasonable efforts of the officers to enforce the law against the possession of contraband would oftentimes convert what in fact is a reasonable search and seizure into an unreasonable one by judicial construction. In the absence of express provisions in 22 0.8. 1951 § 1227 as to the method of service of a search warrant, we are therefore limited only by the constitutional inhibition against unreasonable searches and seizures. What is reasonable is what is ordinarily fair and if the manner of service is such as does not subject the defendant to unreasonable treatment, the same will meet the requirements of both the law and justice.

Id. at ¶ 10, 302 P.2d at 173-74.

T8 The Court in Pennington found the language of section 1227 ambiguous regarding the proper manner of service, and turned to another legislative source, the language of now-repealed 37 0.8.1951, § 84, which set forth a more specific procedure for the service of search warrants involving violations of the prohibitory act:

A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.

87 0.S.1951, § 84 (repealed, 1959). The Court then read sections 1227 and 84 together as "an exposition of legislative policy," from which it derived the rule that "where personal service is possible the same should be made and substituted service should not be resorted to." Pennington, at ¶ 12, 302 P.2d at 174. Based upon this construction of the statutes, the Court held in Pennington that service of a search warrant by leaving a copy of the warrant in an unoccupied dwelling, where it was found by the defendant after the search was concluded, did not violate the defendant's statutory right to personal service under section 1227. Id. at ¶ 16, 302 P.2d at 175.

€ 9 Pennington demonstrates that personal service of a search warrant has never been a condition precedent to a reasonable search under the Oklahoma Constitution or any act of the Oklahoma Legislature. Perningtion's rule of personal service "where possible" arises solely from a statutory interpretation of this Court based, at least in part, on the language of a repealed statute. The proper limits of this rule are shown in cases decided before and after Pennington, in which the Court historically has required personal service only where officers executing the warrant found some person present within and in charge of the premises to be searched at the time the search warrant is executed. Borchers v. State, 1936 OK CR 49, 59 Okl.Cr. 116, 56 P.2d 922 (officers searching unoceu-pied residence violated statutory service requirement by failing to post copy of the warrant on the door); Thompson v. State, 1949 OK CR 78, 89 Okla.Crim. 383, 208 P.2d 584 (service on eighteen year-old boy who was in charge of premises complied with section 1227); Walker v. State, 1950 OK CR 118, 92 Okla.Crim. 247, 222 P.2d 766 (failure to serve copy of warrant on employee in charge of premises at time of search rendered search illegal under section 1227); Edwards v. State, 1951 OK CR 162, 95 Okla.Crim. 37, 239 P.2d 434 (failure to serve copy of warrant on thirteen year-old boy found within premises did not invalidate search where child was not in charge of premises or in possession of contraband).

T 10 In Thompson, supra, where the Court was applying the more restrictive terms of service found in the text of 37 0.S.1951, § 84, the Court said:

This section would indicate that it would be required if a person was present and in possession of the liquor contraband a copy of the warrant should be served upon such person. The record herein clearly supports a compliance of the statute in this regard. Under the defendant's theory the search could not be had in absence of service of the warrant ... Such a contention is clearly not within the contemplation of the provisions of the statute ... While ordinarily the law contemplates if some person is present and in possession of the place to be searched the warrant will be served, before the search is commenced, but it is not always essential to a valid search, for it is not always possible so to do in the enforcement of the law. It is therefore apparent that personal service of the warrant before search is commenced is not essential to a valid search and seizure.

89 Okla.Crim. at 385-86, 208 P.2d at 586 {emphasis added). A much earlier interpretation of the same statute (when it was codified as section 7009 of the Compiled Oklahoma Statutes of 1921) in Sturns v. State, 1930 OK CR 84, 46 Okla.Crim. 322, 287 P. 805, was to the same effect: "The statute is mandatory and requires the officer to serve a copy of the search warrant upon the person or persons found in possession of the building, if any are in possession where the liquors are found." Sturns, 46 Okla.Crim. at 325-26, 287 P. at 806.

11 The strict rule of personal service for which Appellant contends in this case was also rejected expressly in Walker, supra, where the Court held that personal service was not required on the tenant, in whose name the searched rooms were registered, because the tenant "was at no time present when the search was made or appeared on the scene while the same was in progress." Walker, 92 Okla.Crim. at 250, 222 P.2d at 768 (emphasis added). The following year, in Edwards, supra, the Court stated that the purpose of personally serving the warrant is "to lessen the likelihood of resistance to the search and that such interested party may know that the search is by authority of law." Edwards, 95 Okla.Crim. at 39, 239 P.2d at 437. This purpose is substantially diminished when no one is found present within the premises at the time of search. Knowlton v. State, 1978 OK CR 11, ¶ 7, 574 P.2d 1059, 1062 ("[slince the defendant was not present with the vehicle when it was searched, personal service [of the search warrant] upon him was not an essential requirement of a lawful search"), citing Howe v. State, 1947 OK CR 64, 84 Okla.Crim. 279, 181 P.2d 571, Pennington v. State, supra, and 79 C.J.S. Searches and Seizures, § S3.

$12 Personal service of the warrant on a person found within the premises at the time of the search protects both officers and occupants by discouraging resistance and informing those within the premises that the intrusion is under lawful authority. Howeyver, personal service on persons located elsewhere when the warrant is executed is unnecessary to ensure the reasonableness of the search or protect the legitimate interests of the parties affected. Other statutes serve to safeguard the liberty and property interests of persons affected by execution of a search warrant on their property. 22 O.S. 2001, §§ 1283-1240. These laws provide for a publicly filed inventory of the search, delivery of an inventory to the person whose property was seized, the right to judicial hearing on the issuance of the warrant, the right to restoration of property unlawfully seized, and criminal sanctions against officers who maliciously procure warrants without probable cause or execute them with "unnee-essary severity." 22 O.S.2001, §§ 1233-1240.

113 Appellant argues that the agents' efforts to divert him from the scene of the intended search amounted to official misconduct and a purposeful evasion of the duty to serve the warrant on him personally under section 1227. We disagree. In Swink v. State, 1976 OK CR 219, 554 P.2d 795, this Court held that a deception practiced against unwitting defendants by undercover officers, who thereby secured an invitation to defendant's house to purchase drugs, did not violate the Fourth Amendment or invalidate the seizure of incriminating evidence. The Court in Swink noted that "[the Supreme Court has long recognized that the use of deception by law enforcement officials in the detection of erime is not in itself improper." Id. at ¶ 5, 554 P.2d at 797, citing Grimm v. United States, 156 U.S. 604, 610, 15 S.Ct. 470, 472, 39 L.Ed. 550, 552 (1895), et al. Likewise, nothing in the Oklahoma Statutes or Constitution requires that police always deal truthfully with the targets of criminal investigations. Pierce v. State, 1994 OK CR 45, 878 P.2d 369 (rejecting claim that statements made to police in attorney's office were inadmissible because police deceived appellant during the interview); see also Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (officers lawfully obtained confession by falsely telling suspect that his cousin had already confessed).

T 14 In Carr v. State, 1952 OK CR 112, 96 Okla.Crim. 16, 248 P.2d 251, this Court rejected a similar argument that an official ruse in the execution of a warrant violated the personal service requirement of 37 O.S. 1951, § 84. In Carr, three deputies with a search warrant for liquor devised a plan for the first officer to obtain an invitation to defendant's home on the pretense of buying whiskey, the purpose of the ruse being to quickly locate the hiding place of liquor on the premises. 96 Okla.Crim. at 16-17, 248 P.2d at 251-252. According to plan, the first deputy knocked at the door and the wife of defendant answered. Rather than serving the search warrant at that time, the deputy expressed interest in a purchase of liquor. The wife first denied having lHquor to sell, but after the deputy told her that a particular person sent him, she agreed to get the whiskey. The deputy followed her through the house to the back door and outside, where she entered a garage. The other two deputies immediately joined the first deputy in the yard. When the wife appeared from the garage with a bottle of whiskey, the first deputy served her with the search warrant, searched the garage and located the whiskey, which was hidden by sliding panels. Like the instant case, the defendant later told the officers that the whiskey did not belong to his wife, but to him. His trial and conviction followed. Id. >

{15 Carr appealed his liquor possession conviction on grounds almost identical to those before us: "[The search warrant herein was not served in the manner as required by statute, and that an unlawful search was made and begun in violation of the constitutional rights of the defendant." 96 Okla.Crim. at 16, 248 P.2d at 251. The case first reiterates a point made in several other cases cited above: Personal service of the warrant on the defendant was not required, because he was not within the premises at the time of its execution. The Court said "the only question that presents itself from the facts stated, is whether or not the artifice of the officer prior to serving the warrant and search would preclude the state from using the liquor discovered by reason of such conduct in evidence in the prosecution for unlawful possession, that followed." 96 Okla.Crim. at 17, 248 P.2d at 252 (emphasis added).

1 16 The Court in Carr held that the officers could properly effect personal service of the warrant by handing it to the defendant's wife after gaining their initial entry by deceiving her. Id. The Court cited numerous prior cases where officers used trickery or deception to obtain evidence, and said the question of whether officers can use this type of artifice to obtain evidence of criminal activity "has been long settled in this jurisdiction." Id., citing Tipton v. State, 80 Okla. Cr. 49, 156 P.2d 825; Finley v. State, 91 Okla. Cr. 137, 217 P.2d 189; Caveness v. State, 3 Okla. Cr. 729, 109 P. 125; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Medlock v. State, 66 Okla. Cr. 27, 89 P.2d 377; Hiatt v. State, 67 Okla. Cr. 372, 94 P.2d 262. Taking the Appellant's view of the facts in this case, the agents here procured his absence from the premises by diverting him to another location and receiving a signal to begin their search once he had arrived. We see no important difference between the diversion used here and the artifice used in Carr, and no violation of Appellant's statutory or constitutional rights.²

17 Appellant's argument for a strict rule of personal service contains a certain irony, as law officers have on other occasions been criticized for needlessly entering into confrontations with occupants during service of arrest and search warrants, which they might have avoided if those likely to resist were drawn away from the scene, even by means of an official ruse. The shootings at Ruby Ridge, Idaho, the loss of life in Waco, Texas, and the service of a warrant which resulted in the shooting death of an Oklahoma Highway Patrolman are constant reminders of the foreseeable dangers in the execution of search warrants. The diversionary tactic used by the agents in this case kept the peace during the execution of a warrant and did not result in violation of Appellant's statutory or constitutional rights.

1 18 When the Court interpreted the seope of section 1227 in Pennington, it began from the important premise that "all the constitution requires is that the search and seizure be reasonable." Id. at ¶ 10, 302 P.2d at 173. This Court has never held that the Constitution or the Oklahoma Statutes require personal service of a warrant on someone who is not present within the premises to be searched, and we decline to take this extraordinary step now. In Pernington, our predecessors wisely avoided an interpretation of section 1227 which would "convert what in fact is a reasonable search and seizure into an unreasonable one by judicial construction." Id. at ¶ 10, 302 P.2d at 173. The search in this case complied with statutory and constitutional law. Appellant's motion to suppress was properly denied. His remaining assignments of error warrant no relief.

DECISION

{19 The Judgment and Sentence of the District Court of MeCurtain County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

C. JOHNSON, P.J. and CHAPEL, J.;: Dissent. A. JOHNSON, V. P.J. and LUMPKIN, J.; Concur.

1 . Appellant raised the following propositions on appeal: (1) The search warrant in this case was void ab initio; the U.S. Forestry Agent had no authority to seek and obtain a warrant from a state judge to search a residence in Eagletown, Oklahoma; (2) The trial court erred in failing to order that the identity of the confidential informant be disclosed; (3) The trial court committed reversible error in failing to suppress certain statements of Mr. Darity which were the "fruit" of an improper seizure and arrest; (4) The search warrant was lacking in probable cause; the evidence seized in the alleged residence must be suppressed; statements made after the execution of the search warrant must be suppressed as "Megal fruit of the poisonous tree;" (5) The evidence seized from the alleged residence of Mr. Darity must be suppressed as the warrant was not executed as required by Oklahoma law; (6) Mr. Darity was denied a fair trial due to improper remarks made by the prosecutor; (7) Two convictions for trafficking drugs violates state and federal prohibitions against double jeopardy and multiple punishments; (8) There was insufficient evidence to support two of the convictions.

2 . Cases involving official deception or artifice in the execution of search and arrest warrants in several jurisdictions reach the same conclusion. State v. Bentley, 132 Idaho 497, 975 P.2d 785, 787-89 (1999) (officers lawfully maneuvered defendant out of house and onto his driveway to arrest him with warrant, using phony request for car registration); United States v. Vasiliavitchious, 919 F.Supp. 1113, 1117 (N.D.Ill.1996) (arrest was valid where officers lured suspect outside with false story that someone had broken into his car); United States v. Contreras-Ceballos, 999 F.2d 432, 435 (9th Cir.1993) (police deception used to induce occupant to open door did not implicate knock and announce rule); People v. Witherspoon, 216 Ill.App.3d 323, 160 Ill.Dec. 76; 576 N.E.2d 1030, 1036 (1991) (finding no violation where police officers lured defendant from apartment to serve warrant by activating his car alarm); United States v. Rengifo, 858 F.2d 800, 804 (1st Cir.1988) (agents could properly lure suspects from motel room to arrest them); People v. Moore, 105 Ill.App.3d 264, 61 Ill.Dec. 147, 434 N.E.2d 300, 303 (1982) (officers induced defendant to leave his home by falsely telling him he was not target of investigation); People v. Sunday, 109 Ill.App.3d 960, 65 Ill.Dec. 461, 441 N.E.2d 374, 378-79 (1982) (deception to lure defendant from his home to arrest him without a warrant did not violate fundamental fairness).