Hall v. State

1988 OK CR 286, 766 P.2d 1002, 1988 Okla. Crim. App. LEXIS 308, 1988 WL 135546
Court of Criminal Appeals of Oklahoma·Decided December 8, 1988·No. F-85-754·Published·Cited by 4 cases

Opinions

OPINION

BUSSEY, Judge:

Clifford Avriett Hall, appellant, was tried by jury in the District Court of Garvin County Case No. CRF-83-247 for the crime of Possession of a Controlled Dangerous Drug With the Intent to Distribute. Appellant was represented by counsel. The jury returned a verdict of guilty of the lesser offense of Possession of a Controlled Dangerous Drug (Phencyclidine) and set punishment at ten (10) years imprisonment. The trial court sentenced appellant in accordance with the jury’s verdict. From this judgment and sentence, appellant appeals to this Court.

At approximately 5:30 p.m. on May 17, 1983, Elmore City police officer Ted Campbell stopped appellant for speeding 52 miles per hour (m.p.h.) in a 25 m.p.h. zone. As Officer Campbell approached the vehicle, he saw appellant reaching behind the seat. Suspicious that appellant might be reaching for a weapon, Campbell drew his gun and ordered appellant to keep his hands in sight.

Satisfied that appellant was not armed, the officer asked for appellant’s driver’s license. Appellant could not produce one and stated that he must have left it at home. Campbell then ran a radio check to see if appellant did, in fact, have a license. From the check, the officer discovered that appellant was driving under suspension, so he placed appellant under arrest and conducted a “pat down” search for hidden weapons.

During the “pat down” search, appellant dropped what was later proven to be a marijuana cigarette. Because there was no one with appellant who could drive the car, it had to be impounded. In conformance with standard police policy in such situations, the car was towed to the impound lot. Accordingly, Campbell called for assistance in inventorying the car before leaving the scene. During the course of the inventory, additional quantities of suspected drugs and drug paraphenalia were found, including a small mouthwash bottle approximately half full of Phencyclidine (P.C.P.). Additionally, during the inventory, Officer Campbell noticed appellant moving around alot in the back seat of the patrol car where he was sitting. Campbell subsequently found a plastic bag of marijuana in the area where appellant was sitting. He testified that the bag was not there earlier when he had conducted a routine search of the patrol car prior to going out on patrol.

When the inventory was completed, the car was impounded. Campbell then advised appellant of his Miranda rights and [1004]*1004took him to the Elmore City police station. During the drive to the station, appellant asked Campbell to “throw that P.C.P. ... out the window.” Upon their arrival, Campbell helped appellant out of the patrol car, retrieved the bag of marijuana, and took appellant inside for booking.

As the first of eight assignments of error, appellant argues that there was insufficient evidence to support his conviction. Appellant argues that Hishaw v. State, 568 P.2d 643, (Okla.Crim.App.1977), applies here. In Hishaw, this Court held that “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.” Id., at 645. Appellant contends that since the automobile did not belong to him, an inference that he was unaware of its presence arose, and thus, the jury could have reasonably concluded that he lacked knowledge of the bottle’s presence. He follows by arguing that the State failed to present sufficient evidence to exclude the inference that he knew nothing about the bottle in the back seat.

The test for determining the sufficiency of evidence where both direct and circumstantial evidence is presented is “whether, after reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.” See, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Spuehler v. State, 709 P.2d 202, 203 (Okla.Crim.App.1985). Aside from appellant's “mere presence” in the vehicle, there are a number of other facts the jury could consider in finding the essential elements of the crime beyond a reasonable doubt. For instance, appellant’s reaching toward the back seat as Campbell approached the vehicle and his own incriminating statement suggesting he knew that the bottle contained P.C.P. were evidence before the jury. Our examination of the record compels us to conclude that the Jackson-Spuehler test is met in this case. The assignment of error is without merit.

In his second assignment of error, appellant argues that the inventory search of his vehicle was a subterfuge which violated his constitutional rights under Article II, Section 30 of the Oklahoma Constitution and the Fourth Amendment to the United States Constitution. This Court has repeatedly held that inventory searches conducted pursuant to standardized impoundment procedures are not violative of either the Fourth Amendment to the U.S. Constitution or to Article II, Section 30 of the Oklahoma Constitution. Fallon v. State, 725 P.2d 603, 604 (Okla.Crim.App.1986); Starks v. State, 696 P.2d 1041, 1042 (Okla. Crim.App.1985). Additionally, we have held that the inventory search must be grounded upon the need to impound the vehicle. Lee v. State, 628 P.2d 1172 (Okla.Crim.App.1981). Officer Campbell testified that appellant was the only occupant of the vehicle, and police department policy required him to impound the vehicle in such situations for the driver’s and the police department’s protection. We held such grounds to be proper in Fallon, and again so hold. Accord, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed. 2d 1000 (1976), in which the U.S. Supreme Court noted that the authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

Having found legitimate grounds for impoundment we now look to the inventory search. Appellant relies on Magann v. State, 601 P.2d 123 (Okla.Crim.App. 1979), in arguing that the officer’s failure to fill out an inventory sheet suggests that the search was merely a subterfuge to find evidence. The record shows that as Officer Campbell came across items in the vehicle another member of the police department’s personnel listed them on a piece of paper. Furthermore, we find that other facts, such as Officer Campbell’s more complete search, rather than the narrowly tailored search in Magann, help to distinguish the instant case from Magann. Therefore, we find that the officer conducted a proper inventory search of the car [1005]*1005pursuant to police department policies. This assignment of error is without merit.

Appellant further contends in his third assignment of error that the trial court erred in refusing to suppress the drugs found in the vehicle driven by appellant. He asserts that his Fourth Amendment rights and Article II, Section 30 rights were violated under three theories: (1) the search was not a proper inventory search; (2) the search was not a proper search incident to an arrest; and, (3) appellant had not given consent to the search.

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Hall v. State, 1988 OK CR 286, 766 P.2d 1002, 1988 Okla. Crim. App. LEXIS 308, 1988 WL 135546 (Okla. Ct. App. 1988).

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