State v. Bass

2013 OK CR 7, 300 P.3d 1193, 2013 WL 1850764, 2013 Okla. Crim. App. LEXIS 9

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 1, 2013
• Docket: No. S-2012-363
• Status: Published

Opinions

SUMMARY OPINION

SMITH, Vice Presiding Judge.

T1 On January 17, 2011, Robert Harrell Bass, Jr. was charged by Information in the District Court of Sequoyah County, Case No. CF-2011-26, with Trafficking in Illegal Drugs (marijuana), under 63 0.8. Supp.2007, § 2-415 (Count 1), and Misdemeanor Possession of Drug Paraphernalia, under 63 0.8. 2011, § 2-405 (Count II).¹ On February 3, 2011, Bass filed a Motion to Quash, Suppress, and Dismiss.² On February 15, 2011, a preliminary hearing was held before the Honorable L. Elizabeth Brown, Associate District Judge. The State announced at the hearing that it would amend Count I to "Possession with Intent." At the conclusion of the hearing, the Honorable L. Elizabeth Brown denied Bass' motion to suppress, overruled his demurrer, and bound Bass over for trial on the Count I charge of Possession with Intent to Distribute. On February 16, 2011, the State filed an Amended Information, amending Count I to Possession of Controlled Drug with Intent to Distribute (marijuana), under 63 0.8.2011, § 2-401.

T2 On March 24, 2011, Bass filed a new Motion to Quash, Suppress and Dismiss.³ On April 19, 2012, a hearing was held on this motion before the Honorable J. Jeffrey Pay-ton, District Judge. The court noted that it had reviewed the transcript of the preliminary hearing, a video of the stop, and the filings of the parties and then announced that it was granting Bass' motion to suppress, without allowing any argument from the par-ties⁴ The court did not, however, dismiss the case against Bass. The State now appeals the district court's grant of Bass' motion to suppress, under 22 O.8.Supp.2011, § 1058(5). and the matter is properly before this Court.⁵

T3 The State raises the following propositions of error in its appeal:

I. The Appellee does not have standing to challenge the search of the vehicle.

II. The Appellee's rights were not violated because his detention and subsequent search of the vehicle were reasonable under the law and Miranda does not apply.

T 4 In Proposition I, the State argues that Bass does not even have standing to challenge the search of the van, because he was not an authorized driver of the van. The State cites both Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in support of its "standing" argument. Yet in Corter, the Supreme Court described the "standing" approach to the question of who can properly assert a Fourth Amendment challenge to a search or seizure as "an analysis that this Court expressly rejected 20 years ago in Rakas." 525 U.S. at 87, 119 S.Ct. at 472 (citing Rakas ); see Rakas, 439 U.S. at 139, 99 S.Ct. at 428 ("[Wle think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.").

15 Nevertheless, the State is raising a plausible claim that because Bass was not listed as an authorized driver on the rental contract for the van, he did not have a reasonable expectation of privacy regarding the contents of that van. In Carter, the Supreme Court recognized as follows:

[IJn order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.¢., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."

525 U.S. at 88, 119 S.Ct. at 472 (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12).⁶

16 The State argues that Bass was "committing the felony of unauthorized use of a vehicle." The record, however, does not establish this claim. The record establishes only that Bass was not the named renter of the van, nor was he listed as an authorized driver, and that the van was not reported stolen. The only evidence in the record regarding whether the person listed on the rental contract authorized Bass to drive the van is Bass' statement to Officer Cody Hyde that the named renter did authorize him to drive the van. Hence the question before this Court is whether the driver of a rental vehicle, who is not listed on the rental contract for that vehicle, but who claims to have been given permission to drive the vehicle by the person listed on the contract, has a reasonable expectation of privacy in the contents of that vehicle. Thus this is not a case where the vehicle stopped is determined to be stolen or where the driver admits that he or she had no legal right to be driving the vehicle at issue.

17 In United States v. Soto, 988 F.2d 1548 (10th Cir.1993), the court considered whether a driver who asserted that the car he was driving had been loaned to him by his uncle, whose name was on the car's registration, had a protected Fourth Amendment privacy interest in the car⁷ The Soto court found that "[wJhere the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle." Id. at 1552 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990)). The Soto court then concluded that because the defendant had produced a registration bearing the name "Corral" and stated that Mr. Corral had loaned him the car, in combination with the fact that the car had not been reported stolen, the defendant had a sufficient expectation of privacy in the vehicle to challenge a search of that vehicle in a motion to suppress.⁸

T 8 In Parker v. State, 182 S.W.3d 923, 924 (Tex.Crim.App.2006), the Texas Court of Criminal Appeals recently addressed a situation where the driver of a car stopped for "following another car at an unsafe distance" was driving a rental car that had been leased by his girlfriend. The driver was not on the rental The court stated.⁹ "The question in the case before us is whether someone driving a rental car with permission only from the person who rented the car has an expectation of privacy that society is prepared to recognize as reasonable." Id. at 926. The Parker court reviewed authority from the United States Supreme Court, other Texas cases, and other jurisdictions, id. at 925-26, and rejected the approach of focusing upon whether the car rental contract allowed the renter to allow others to drive the vehicle.¹⁰ The court then concluded that under the factual civeumstances of that case, "society would recognize as reasonable Appellee's expectation of privacy in the use of his girlfriend's rental car with her permission even though he was not listed as an authorized driver on the rental agreement." Id. at 927.

T9 Given these authorities and the analysis therein, this Court declines to find that Bass, who was in sole possession of the van he was driving, did not have a reasonable expectation of privacy in the contents of the van. Although Bass was not listed on the rental contract for the van, he told Officer Hyde that the person listed on the contract gave him permission to drive the van; and the record contains no evidence to the contrary. Furthermore, the rental agency confirmed that the van had not been reported stolen. Under these cireumstances, we find that Bass had a right to challenge the search of the van, which led to the discovery of the marijuana that Bass was then charged with possessing.¹¹

110 In Proposition II, the State argues that the district court abused its disceretion in granting Bass' motion to suppress, because the stop of the van, detention of Bass, and subsequent search of the van were all reasonable and proper. This Court reviews the district court's grant of Bass' motion to suppress for abuse of discretion. See State v. Love, 1998 OK CR 32, ¶2, 960 P.2d 368, 369 ("In appeals prosecuted pursuant to 22 O.S.1991, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion.").

{11 Officer Hyde's original stop of the white van was clearly a valid traffic stop. Bass does not challenge the validity of the original stop, which was based upon Hyde's observation that the van was following another vehicle too closely and that it had crossed over the "fog line" onto the shoulder. This valid traffic stop ended, however, when Hyde gave Bass the warnings that he had written up for him, handed Bass his license, and told him to "be careful."

{12 In State v. Goins, 2004 OK CR 5, 84 P.3d 767, this Court addressed the question of when an officer may continue to question a person originally detained for a valid traffic stop, after the initial traffic stop has concluded. We found that an officer can continue to question a driver after a valid traffic stop has concluded in two specific situations: "First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter." Id. at ¶ 13, 84 P.3d at 770 (quoting United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)). The Supreme Court has recognized that the issue of whether a detaining officer has an adequate and objective basis for detaining an individual suspected of wrongdoing is based upon "the totality of the cireumstances." See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).

113 After the traffic stop was over and Bass had just exited Hyde's OHP vehicle, Hyde asked Bass if he would mind answering a few more questions. When Bass then voluntarily got back in Hyde's car, a consensual encounter began. During this encounter, Bass voluntarily answered Hyde's question about whether he had any weapons or anything illegal in the van. (Bass said "no.") Hyde then asked Bass for permission to search the van, but Bass said "no" and asked if he could leave. Hyde then told Bass that he was not free to leave and that he needed to stay in the patrol car. The consensual encounter ended at this time; and the question for this Court is whether, at this point, Hyde had adequate, articulable "reasonable suspicion" that illegal activity had occurred or was occurring, in order to detain Bass any longer.

114 This Court notes that it is irrelevant to the legality of the ensuing detention that Officer Hyde originally attempted to get Bass to engage in a consensual encounter and to voluntarily agree to a search of his van. There is nothing improper in an officer-who may also have adequate reasonable suspicion to detain a particular individual-initially attempting to prolong his interaction with that person (whom he suspects of illegal activity) through the voluntary consent of that person. This is what Hyde attempted to do in the current case. An officer who has both adequate reasonable suspicion and voluntary consent can feel quite comfortable that his continuing encounter with the stopped individual is lawful and is unlikely to be found improper at a later time.

T 15 In the district court's brief comments at the time it granted Bass' motion to suppress and in the court's later written findings, the court appears troubled (and even offended) by the fact that Officer Hyde "released" Bass to go and then, just moments later, detained him-without any new suspicious behavior on the part of Bass. This Court emphasizes that the legal question remains whether, at the point Hyde detained Bass, the totality of the cireumstances provided Hyde with an adequate, particularized, and objective basis for doing so. This Court does not hesitate to find that Officer Hyde had an adequate reasonable suspicion of Bass under this standard.

116 Bass originally told Officer Hyde that he himself rented the white van, yet he was unable to produce the rental contract. A short time later, Hyde learned from the rental company that it was not Bass who actually rented the van, but someone else-and that the van was supposed to be returned in San Francisco in four days, even though Bass was going east and had stated that he was headed home to North Carolina. The fact that Bass then changed his story and said that yes, the other person did actually rent the van-and that they had actually been together in San Francisco, though Bass had earlier stated he was traveling alone-but that the other person rented the van for Bass, only increased the suspiciousness of Bass' situation. The State emphasizes Hyde's testimony about how nervous Bass appeared during the stop-that his hands were shaking; his voice was cracking; he had visible sweat beads on his face, etc. This Court finds that Hyde's testimony in this regard supports our conclusion herein, but that Bass' lies and shifting stories are the most important factors in this Court's determination that Hyde did have adequate reasonable suspicion to detain Bass. See State v. Paul, 2003 OK CR 1, ¶3, 62 P.3d 389, 390 (inconsistent statements about destination and questionable proof of authority to operate vehicle provide reasonable suspicion).

T17 In its 7/26/12 "Findings of Fact and Conclusions of Law," the district court found that "Bass's actions in the patrol vehicle as testified to by Trooper Hyde did not establish an objectively reasonable and articulable suspicion that the vehicle contained illegal contraband." This approach, however, misunderstands the analysis at issue. First, neither Hyde nor this Court is limited to considering the "actions" of Bass while he was "in the patrol vehicle" in making the determination of whether Hyde had an adequate and objective "reasonable suspicion" at the time he told Bass that he was not free to leave. The dishonest and shifting words of Bass, from the time Hyde first interacted with him, while Bass was still in the van, and throughout the encounter, were all part of the reasonable suspicion that developed in this case. Hence the district court unreasonably limited the basis for its reasonable suspicion analysis. In addition, the law only requires that Hyde have a reasonable suspicion that some kind of illegal activity has occurred or is occurring at the time he begins detaining Bass. The State is not required to establish a reasonable suspicion that the van "contained illegal contraband" to justify the short detention of Bass that occurred while Hyde was getting out his drug dog and taking him around the van.

118 This Court finds that Hyde had adequate reasonable suspicion to detain Bass for the few minutes that passed while Hyde got his trained drug detection dog out of the backseat of his OHP vehicle and then took the dog around the white van.¹² When the dog then visibly "alerted" on the back of the van, Hyde was justified in allowing the dog to enter the van, ie, Hyde had probable cause to search the van, at which time the dog further alerted on certain large bags in the rear of the van.¹³ At that point, Hyde had probable ecause to open and search these bags, which contained multiple, separate bags of marijuana. Hyde was then authorized to arrest Bass, which he did. See Paul, 2003 OK CR 1, ¶3, 62 P.3d 389 (finding search of vehicle proper after drug-dog-sniff "hit" established probable cause, in factually parallel case).

19 The district court abused its discretion in granting Bass' motion to dismiss. Hence the grant of Bass' motion to suppress must be reversed, and this matter must be remanded to the district court.

Decision

{20 The decision of the district court granting Bass' motion to suppress is REVERSED, and this case is REMANDED to the district court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LEWIS, P.J. and A. JOHNSON, J.; concur. C. JOHNSON, J.: specially concur. LUMPKIN, J.: concur in part/dissent in part.

1 . Count II, which alleged possession of "plastic bags," is not involved in the current appeal.

2 . The State filed a response to this motion on February 14, 2011.

3 . The State filed a response to this motion on May 12, 2011; and Bass filed a reply to this response on June 15, 2011.

4 . After the State noted its intent to appeal this ruling, the prosecutor asked, ""I would just ask [] what in particular did you find wrong with the stop?" The court responded: "He released the guy to go and then turned him around and brought him back into the vehicle and started questioning him again after about 30 minutes." The court then added, "And it was just unreasonable."

5 . On July 26, 2012, over three months after granting Bass' motion to suppress, the district court filed "Findings of Fact and Conclusions of Law" regarding its grant of Bass' motion to suppress. This filing, which occurred after the record on appeal had been ordered from the district court, has been added to the record in this case pursuant to the State's motion to amend and supplement the record on appeal.

6 . In Rakas, the Supreme Court noted that this inquiry "requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." See Rakas, 439 U.S. at 140, 99 S.Ct. at 429.

7 . The driver of the car Soto) was an illegal alien and initially gave a false name and a false driver's license. When he produced the registration for the car, it showed the owner to be a person whose last name was "Corral." Soto then stated that Mr. Corral was his uncle and that he had loaned him the car for a trip from Chicago to Los Angeles and back. Soto was not able to provide Mr. Corral's home address. However, when the stopping officer performed an NCIC check on the car, he learned that it had not been reported stolen. See Soto, 988 F.2d at 1550.

8 . The Soto court wrote:

[DJefendant here claimed to have borrowed the car from the rightful owner, and produced a registration bearing that individual's name. Although this evidence is not determinative of defendant's right to possess the vehicle, absent evidence that defendant wrongfully possessed the vehicle[,] it is sufficient to confer standing on him to challenge the subsequent search of the car.

See id. at 1553.

9 . In fact, the rental agreement expressly stated that the car's renter was not allowed to permit anyone else to drive the car without the permission of the rental agency; and the defendant's girlfriend acknowledged at the hearing on 'his motion to suppress that she knew she was violating her rental contract when she loaned her boyfriend the car. See Parker, 182 S.W.3d at 924.

10 . Id. at 927 ("Rather than continuing to allow the terms of a contract to determine whether an individual may assert his constitutional rights, we instead return to a Smith v. Maryland analysis of whether the defendant's expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances."); see Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (outlining reasonable expectation of privacy test in this context).

11 . In its 7/26/12 Findings of Fact and Conclusions of Law, the district court found that Bass had standing to challenge the search of the van he was driving, citing Soto and Smith v. Maryland.

12 . This Court has reviewed the video of this traffic stop and notes that there was no significant delay in this process-and certainly no 30-minute delay-since Hyde's dog was in his backseat.

13 . In Florida v. Harris, - U.S. -, 133 S.Ct. 1050, 1053-54, 185 L.Ed.2d 61 (2013), the Supreme Court recently addressed the issue of whether a particular drug-dog's "alert" adequately established probable cause to search a vehicle, even if on two occasions a post-sniff-search (of the same defendant's truck) did not turn up any of the drugs for which the dog had been trained to alert. The Court noted that the question of "probable cause" in this context is simply whether the facts available to the officer warranted a reasonable belief that contraband or evidence of a crime would be present in the area to be searched. See id. at 1055 (all citations omitted). The Harris Court emphasized that this determination involves a "practical and common-sensical standard," based upon "the totality of the circumstances." Id. (citations omitted); see also id. (rejecting "rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach"). The Harris Court unanimously found that the Florida drug-dog's alert in that case established probable cause to search the defendant's truck, id. at 1059, and struck down a contrary decision by the Florida Supreme Court as being too rigid, too strict, and as mistakenly assuming that an officer's failure to discover particular drugs after a drug dog alerted on a vehicle necessarily established that the dog's alert was erroneous (Le., "a false positive"). Id. at 1056-57.