United States v. Sawyer

2004 OK CR 22, 92 P.3d 707, 2004 WL 1244992

• Court: Court of Criminal Appeals of Oklahoma
• Decided: June 8, 2004
• Docket: CQ-2004-240
• Status: Published

Opinions

ORDER ANSWERING CERTIFIED QUESTION OF LAW

T1 The Honorable Sven Erik Holmes, Chief Judge for the United States District Court for the Northern District of Oklahoma, has certified the following question pursuant to the Revised Uniform Certification of Questions of Law Act, 20 0.8.2001, § 1601-1611:

Whether police officers from Lawrence, Kansas, who identified themselves as police officers to the owner of a building located in Bartlesville, Oklahoma, but informed the owner prior to requesting consent to search that they were from Kansas and without authority to arrest him, could legally conduct such a search in Oklahoma, and whether the fruits of the subsequent search are admissible in evidence, considering that both Oklahoma and Kansas have statutory prohibitions against police officers acting in their official capacities outside their respective jurisdictions? ¹

12 The following relevant facts were provided by the certifying court:

In August 2000, two police officers from Lawrence, Kansas (hereafter "Kansas officers"), investigating stolen motorcycles and motors, traveled to Bartlesville, Oklahoma, to interview Defendant. The Kansas officers notified the Bartlesville Police Department they would be coming in to Bartlesville as part of their investigation, but their travel to Oklahoma and investigation was not requested by the Bartlesville Police Department. When the Kansas officers arrived in Bartles-ville, they stopped at the Bartlesville Police Department, informed the department they were in the city and the purpose of their visit. The Kansas officers then went to Defendant's place of employment. They were not accompanied by any member of the Bar-tlesville Police Department.

T3 At Defendant's place of employment, the Kansas officers identified themselves as police officers to Defendant's company manager. Through the manager, the Kansas officers arranged to interview Defendant in a private office located at his place of employment.

1 4 Upon contact with Defendant, the officers identified themselves as Kansas police officers and told Defendant he was not under arrest because they were without authority to arrest him in Oklahoma. The Kansas officers wore street clothes with badges, handcuffs, and firearms on their belts. The Kansas officers read Defendant his Miranda² rights and interviewed Defendant for about one hour. Defendant provided the officers with both a written and verbal statement.

T5 After Defendant provided his statement, the Kansas officers asked Defendant to take them to his motoreyele motor sales business in Bartlesville. Kansas officers followed Defendant, who drove in his personal vehicle, to the location of his business. At the shop, at the request of Kansas officers, Defendant unlocked the door and allowed them inside. Once inside, the Kansas officers asked Defendant to sign an official Consent to Search form from the Lawrence Kansas Police Department. Defendant signed the consent form.

T6 The Kansas officers then searched Defendant's business. Towards the end of their search, after finding numbers on most of the engines, the Kansas officers contacted the Bartlesville Police Department and asked them to bring a camera to the business. Three Bartlesville police officers came to Defendant's business and took photographs. At the request of the Kansas officers and with Defendant's consent, the three Bartlesville police officers removed six engines from Defendant's shop; three had altered serial numbers and three were believed stolen.

T7 The Kansas officers then obtained consent from Defendant to take records from his residence, and there they obtained additional records from Defendant's wife. Afterwards, Defendant was interviewed again by the Kansas officers at the Bartlesville Police Department.

T8 Four days later, the Kansas officers notified the Bartlesville Police Department of the results of their investigation/examination of the serial numbers from the engines seized from Defendant's shop. The next day, Bar-tlesville police officers obtained a search warrant from a judge of the State of Oklahoma for another search of Defendant's shop. Bartlesville police officers executed that warrant and seized additional items which included seventeen motorcycle motors.

T9 The United States District Court for the Northern District of Oklahoma found at all times the Lawrence Kansas police officers were acting under color of law.

AUTHORITY TO ANSWER

{10 Oklahoma adopted the Uniform Certified Question of Law Act in July of 1978. 20 0.8.2001, § 1601. Pursuant to the Act, this Court

may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or the Court of Criminal Appeals, constitutional provision, or statute of this state.

20 0.98.2001, § 1602; see Canady v. Reynolds, 1994 OK CR 54, ¶ 8, 880 P.2d 391, 393. "This Court has the power to give the present state of the law as well as use the opportunity to create new precedents" when answering a certified question of law. Moore v. Gibson, 2001 OK CR 8, ¶ 6, 27 P.3d 483, 485; Canady, 1994 OK CR 54, 112, 880 P.2d at 395. In so doing, we may reformulate or reinterpret a question of law certified to this Court. Gibson, id.; Canady, id.

DISCUSSION

(11 Generally, a police officer's authority cannot extend beyond his jurisdiction. Graham v. State, 1977 OK CR 1, ¶¶ 13-14, 560 P.2d 200, 203. Recognized exceptions to this general rule are (1) hot pursuit, (2) when one municipality has requested assistance pursuant to 11 0.8.2001, § 34-108, and (8) when an officer is serving an arrest warrant. Id., 1977 OK CR 1, ¶ 14, 560 at 203, 560 P.2d 200, citing United States v. Braggs, 189 F.2d 367 (10th Cir.1951)(hot pursuit); 11 0.8.2001, § 27-113 (service of arrest warrant "any place within this state"); 11 0.9.2001, § 34-103 (requesting assistance from another municipality). Otherwise, once outside the city limits of the municipality by which they are employed, the officer acts as a private citizen with no greater authority than that of a private citizen. Staller v. State, 1996 OK CR 48, ¶ 10, 932 P.2d 1136, 1139-1140; see also State v. Ramsey, 1993 OK CR 54, ¶ 10, 868 P.2d 709, 712; Phipps v. State, 1992 OK CR 32, ¶ 9, 841 P.2d 591, 593.

112 This Court's decision in Phipps is dispositive of the question certified.³ In Phipps, this Court held a police officer acting outside his jurisdiction may not conduct a consensual search if the consent is obtained while the officer is acting under color of law. Id., 1992 OK CR 32, 17, 841 P.2d at 598. In Phipps, where the officer identified himself as a police officer and showed his badge before obtaining consent to search, we noted:

[there can be no doubt, however, that had a private citizen told appellant they suspected she was transporting marijuana and asked to look in her trunk, appellant would not have let them. Thus, it is clear that Officer Kinney was acting under color of law and the appellant believed that he had such authority when he asked to search appellant's vehicle We therefore hold that the search of appellant's car while it was beyond the Tulsa city limits is invalid, and the seizure of the contraband from such search should have been suppressed.

Id., 1992 OK CR 32, 112, 841 P.2d at 593-594.

1 13 In this case, there is no question that the Kansas officers were outside their jurisdiction. Their actions were not authorized by any interlocal governmental agreement relating to law enforcement. Neither 11 0.8. 2001, § 34-103 nor K.S.A. (2001) § 22-24012 mentions or contemplates extending a municipal police officer's jurisdiction from one state to another state.

T14 Further, the District Court found the officers were "at all times relevant hereto . acting under color of law." While the Kansas officers told Defendant they were without authority to arrest him, after they mirandized Defendant and questioned him for over an hour, they asked for consent to search his business and asked him to sign an official Consent to Search form from the Lawrence Kansas police department. A private citizen, acting without official authority, who asks another to search his home or business would not ask such person to also sign a written consent form with a police division name on it. As we noted in Phipps, it is highly doubtful a person would sign such a consent under those cireumstances. It is evident these officers were not acting as private citizens and, through their display of official authority, they obtained consent to search from Defendant. Such consent, under Phipps, was invalid.

15 "At some point near the end of the search," the Kansas officers contacted the Bartlesville police department because they needed a camera to photograph items discovered during their search. Again, upon request of the Kansas officers, Defendant consented in writing to allow six engines to be removed from his shop. A few days later, the Kansas officers notified the Bartlesville police officers of the "results of their examination of the serial numbers on the engines found" at Defendant's shop, and the Bartles-ville officers used that information to obtain a search warrant.

116 Defendant's initial consent for the Kansas officers to search his business was invalid. Any evidence seen or obtained during that search could not be used to establish probable cause in the subsequent affidavit for a search warrant. State v. Stuart, 1993 OK CR 29, ¶ 19, 855 P.2d 1070, 1074; Phipps, 1992 OK CR 32, ¶ 12, 841 P.2d at 594; Dale v. State, 2002 OK CR 1, ¶ 10, 38 P.3d 910, 912 (fruits of search based upon involuntary consent would be suppressed). The evidence seized during the initial search as well as the evidence seized pursuant to the subsequently issued search warrant should be suppressed.

117 The Kansas officers' request for assistance from the Bartlesville police department in photographing evidence and their second request for consent before removing items from the business was not a sufficient intervening cause to purge the taint of the initial invalid consent and resulting unlawful search. See McGaughey v. State, 2001 OK CR 33, ¶ 40, 37 P.3d 130, 141; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)(original taint of impropriety may be removed by intervening circumstances). Had the Kansas officers not gained entry to Defendant's business under color of law, they would not have gained entry at all and would not have had the opportunity to see and seize evidence with or without the assistance of the Bartlesville police department. We find no significant intervening factor occurred between the entry based upon invalid consent and any subsequent consent obtained in the presence of the Bartlesville officers "at the request of the Kansas officers."

18 Lastly, the facts provided suggest the Bartlesville police department used information gained by the Kansas officers during their search of Defendant's business to obtain a search warrant from a judge of this State for another search of Defendant's business. That search resulted in the seizure of seventeen additional motorcycle motors.

{ 19 The evidence obtained pursuant to the search warrant also must be suppressed, because the evidence establishing probable cause for the issuance of the warrant was obtained by the Kansas officers acting under color of law while conducting the unlawful search of Defendant's business,. Lucas v. State, 1985 OK CR 100, ¶ 11, 704 P.2d 1141, 1142 (evidence seized pursuant to a search warrant was discovered by exploitation of the illegal vehicle search would be suppressed as fruit of the poisonous tree); Wong Sun, 371 U.S. at 484, 83 S.Ct. at 416 (exelusionary prohibition of evidence seized during an unlawful search extends to the direct and indirect products of the search). All of the evidence seized during the search of Defendant's business was found as a direct result of actions taken by the Kansas officers while they were acting under color of law.

ANSWER

120 For the reasons set forth above, we answer the question submitted as follows: Under Oklahoma law, police officers acting outside their jurisdiction under color of law, cannot legally obtain consent to search. As a result, the fruits of any subsequent search would not be admissible.

1 21 IT IS SO ORDERED.

122 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 8" day of June, 2004.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lille, Dissenting. I join in Judge Lumpkin's Dissent STEVE LILE, Vice Presiding Judge

/s/ Gary L. Lumpkin, Dissent (Writing Attached) GARY L. LUMPKIN, Judge

/s) Charles S. Chapel CHARLES S. CHAPEL, Judge

/s) Reta M. Strubhar RETA M. STRUBHAR, Judge

1 , See 11 0.$.2001, § 34-103; K.S.A. § 22-2401a (2001).

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

3 . - The dissent claims Phipps is inapplicable to this case because the Kansas officers did not actually arrest Defendant. This fact does not make Phipps inapplicable. The issue in Phipps was the same as that presented here: Is a consent to search, obtained by a police officer acting outside bis jurisdiction under color of law, valid? Clearly in Phipps, the answer was no, and there is no reason to reach a different result here.

The question presented to this Court concerned the validity of a consent to search obtained by police officers who were acting outside their jurisdiction. For the dissent to describe the Kansas officers' contact with Defendant as a "consensual" encounter requires one to ignore the facts which show these officers at all times acted under color of law and facts from which one can infer the Defendant believed he was dealing with police officers and not private citizens. The United States District Court did not ask this Court whether the Kansas officers could conduct a consensual search; those facts are not before us.

Nothing in Phipps or in this decision prohibits officers from other states from conducting investigations outside their jurisdictions. However, at the point such investigation involves a search or an arrest, the law in this State protects its citizens and requires such actions be made by those with authority to conduct the same. Here, the Kansas police officers could not legally conduct the search of Defendant's business premises because they were acting under color of law when they obtained Defendant's consent to search. Because the Defendant's consent was not valid, the fruits of their searches were inadmissible.