Smith v. State

1977 OK CR 315, 573 P.2d 713, 1977 Okla. Crim. App. LEXIS 651

Opinions

OPINION

BUSSEY, Presiding Judge:

Appellant, Ronald Gene Smith, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF-76-483, with the offense of Concealing Stolen Property, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1713. He was tried by a jury and found guilty, and punishment was set at a term of ten (10) years’ imprisonment. From said judgment and sentence the defendant has perfected his appeal to this Court.

Briefly stated the facts are as follows. Sergeant Horace Jones, a detective for the City of Nichols Hills, went to defendant’s Oklahoma City place of business, “Smitty’s Car Clean,” to meet an individual named Quinton Lee Armstrong. Officer Charles McNeil, a police officer for the City of Nichols Hills arrived at the premises shortly thereafter. Detective Sergeant Jones noticed a man’s wrist watch sitting on a ledge in one of the car bays, which he believed to be stolen property from a Nichols Hills’ burglary. The defendant consented to the officers looking around his place of business, and even insisted that they search the premises. The premises were searched without a warrant and several items believed to be stolen from the Nichols Hills area were found. The defendant was confronted with the watch, and placed under arrest.

Both Nichols Hills’ officers testified that there was an Oklahoma City Police Officer present. However, their testimony conflicts as to when the Oklahoma City Officer arrived. Officer Jones testified that the Oklahoma City Officer arrived at the defendant’s premises with him. Officer McNeil, on the other hand, testified that the watch was found and the arrest made prior to the time the Oklahoma City Police Officer arrived.

The State called three witnesses in addition to Officers Jones and McNeil. Mr. Henry W. Horn testified his residence was burglarized on January 15,1976, and identified State’s Exhibit No. 1 as being his wrist watch. Mrs. Leota L. Horn, wife of Henry W. Horn, identified State’s Exhibit No. 2 as being her bracelet. Dr. L. C. McHenry testified his Nichols Hills’ residence was burglarized on about December 13, 1975, and identified State’s Exhibit No. 3 as a silver sauce ladle which was taken in the burglary. The two Nichols Hills’ police officers then established that State’s Exhibit Nos. 1, 2, and 3 were found at the defendant’s premises.

At the conclusion of the State’s evidence the defendant urged a motion to suppress, a motion to quash the information, a motion to quash the arrest and a motion to dismiss, all of which were overruled. Defendant then demurred to the evidence, which demurrer was overruled.

As his first and second assignments of error the defendant contends that the examining magistrate and the trial court committed reversible error in overruling defendant’s motion to suppress. Defendant predicates error on the fact that the arrest, search and seizure were made in Oklahoma City by Nichols Hills’ police officers who were not in hot pursuit and had not been summoned to assist the Oklahoma City authorities. The defendant cites Graham v. State, Okl.Cr., 560 P.2d 200 (1977), which holds generally that a police officer’s authority does not extend beyond his jurisdiction. While we are of the opinion that the officers had the right to arrest the defendant as private citizens, assuming arguendo that the arrest was illegal as made by an officer outside his jurisdiction, the evidence may still be admissible. The mere fact that the arrest is illegal will not render evidence obtained at the time of arrest inadmissible providing such evidence is otherwise admissible. Smith v. State, Okl.Cr., 311 P.2d 275 (1957).

It is elementary that evidence discovered by a police officer or private citizen in a place where he has a right to be is admissible to support a criminal charge where such evidence is involved. The watch was observed in plain view in a place of business which was open to the public and was, therefore, properly admitted. After the watch was seized and the defendant placed in custody, the defendant insisted that the officers search the premises. In the absence of any evidence to controvert the fact that defendant voluntarily and intelligently consented to the search, the evidence obtained during the search was properly admitted. See Dangerfield v. State, Okl.Cr., 548 P.2d 662 (1976); see also Fred v. State, Okl.Cr., 531 P.2d 1038 (1975).

For the above reasons we find the defendant’s first and second assignments of error to be without merit.

The defendant urges two additional assignments of error which do not possess sufficient merit to warrant discussion in this opinion. Suffice it to say that the evidence amply supported the verdict of the jury, and that the record is free from any error that would justify modification or reversal.

For all the foregoing reasons, we are of the opinion that the judgment and sentence appealed from should be, and is hereby AFFIRMED.

CORNISH and BRETT, JJ., concur.