Court of Criminal Appeals of Oklahoma Cases

Seabolt v. State

Dallas Jay SEABOLT, Appellant v. STATE of Oklahoma, Appellee

2006 OK CR 50, 152 P.3d 235, 2006 Okla. Crim. App. LEXIS 52, 2006 WL 3718056 • 2006-12-15

Citation2006 OK CR 50, 152 P.3d 235, 2006 Okla. Crim. App. LEXIS 52, 2006 WL 3718056

Date Filed2006-12-15

DocketF-2004-1005

JudgeChapel, Johnson, Lewis, Lumpkin

Cited139 times

StatusPublished

Attorneys

Roger Hilfiger, Attorney at Law, Muskogee, OK, attorney for appellant at trial., James Walters, Asst. District Attorney, Muskogee, OK, attorneys for the state at trial., Ricki J. Walterscheid, Appellate Defense Counsel, Norman, OK, attorney for appellant on appeal., W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer B. Miller, Asst. Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

Full Opinion (html_with_citations)

OPINION

A. JOHNSON, Judge.

1 Dallas Jay Seabolt was tried by jury in the District Court of Muskogee County, Case No. CF-2004-179, and convicted of Possession of a Controlled Dangerous Substance with Intent to Manufacture, After Former Conviction of Two or More Felonies in violation of 63 0.S8.8upp.2008, § 2-401(G). The jury fixed punishment at 45 years imprisonment. The Honorable Thomas H. Alford sentenced Seabolt accordingly. From this judgment and sentence, he appeals. We reverse.

T2 On March 3, 2004, a police officer with the Muskogee Police Department stopped Seabolt for failure to signal a left hand turn. Seabolt produced a driver's license and insurance verification. The officer reported the traffic stop to dispatch, ran Seabolt's license and began writing a warning citation.1 The officer also called for a canine unit because Seabolt appeared nervous and he recognized the car as one he had seen earlier that day at a house suspected of drug activity.2 The *237officer testified that, other than his perception that the driver was nervous, he did not see, hear or smell anything to indicate drugs were in the car. The canine unit arrived approximately 25 minutes later and the dog alerted on Seabolt's car. The officers searched the car and found a suitcase containing items commonly used in methamphetamine labs. The special investigation unit officer who responded to secure those items testified that he believed they had been used at least onee to cook methamphetamine.

The Validity of the Search

T3 Seabolt claims the trial court erred in denying his motion to suppress and upholding the search of his car. He argues the officer did not have reasonable articulable suspicion to detain him the 25 minutes it took for the drug dog to arrive and that his detention exceeded the scope of the traffic stop making the ensuing search of his car illegal.

$4 Seabolt moved to suppress the evidence of the search at the end of the Preliminary Hearing. The magistrate asked the parties to submit briefs on the issue. Those briefs are not contained in the record. The magistrate overruled Seabolt's motion without explanation and Seabolt did not renew his objection to the admission of the evidence at trial. When a defendant timely files a motion to suppress evidence but fails to renew the issue by objecting to the introduction of the evidence at trial, he waives his right to complain and this Court reviews the record for plain error. Cheatham v. State, 1995 OK CR 32, ¶ 48, 900 P.2d 414, 427. To be entitled to relief under the plain error doctrine, Seabolt must prove that an error occurred, that the error is plain and obvious, and that the error affected his substantial rights. Hogan v. State, 2006 OK CR 19, ¶ 38, 189 P.3d 907, 923.

15 When reviewing a trial court's ruling on a motion to suppress evidence based on an illegal search and seizure, we defer to the trial court's factual findings about the stop and search unless those findings are clearly erroneous. Lee v. State, 1983 OK CR 41, ¶ 6, 661 P.2d 1345, 1349-50. The ultimate conclusion drawn from those facts is a legal question we review de novo.3 The trial court did not make any factual findings and noted only its conclusion that the search was valid in its minute order.4

16 A traffic stop is a seizure under the Fourth Amendment. - McGaughey v. State, 2001 OK CR 33, ¶ 24, 37 P.3d 130, 136. The scope and duration of such a seizure must be related to the stop and must last no longer than is necessary to effectuate the stop's purpose. Florida v. Royer, 460 U.S. 491, 500, 108 S.Ct. 1319, 1325, 75 L.E.d.2d 229 (1988); Terry v. Ohio, 892 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); McGaughey, 2001 OK CR 33, ¶¶ 24 and 27, 37 P.3d at 186-87. If the length of the investigative detention goes beyond the time necessary to reasonably effectuate the reason for the stop, *238the Fourth Amendment requires reasonable suspicion that the person stopped has committed, is committing or is about to commit a crime. See State v. Paul, 2002 OK CR 1, ¶ 3, 62 P.3d 389, 890.

17 The question presented is whether the 25 minute detention exceeded the seope of the initial traffic stop, and if so, whether the officer had reasonable suspicion to prolong Seabolt's detention. The State argues that the officer had reasonable articulable suspicion to prolong the detention and that the 25 minutes spent waiting for the drug dog to arrive was reasonable based on Skelly v. State, 1994 OK CR 55, 880 P.2d 401.

T8 The traffic stop in Skelly was nothing like the one here. When the officer approached the Skellys' car, he smelled marijuana smoke. Skelly, 1994 OK CR 55, 12, 880 P.2d at 404. Mr. Skelly could not produce insurance verification and the records check showed Skelly had not properly transferred title of the car. Id. A back-up officer saw a marijuana cigarette in the ashtray and the Skellys were arrested. Skelly, 1994 OK CR 55, 13, 880 P.2d at 404. The canine unit was called and arrived in 20 minutes. Skelly, 1994 OK CR 55, ¶ 5, 880 P.2d at 404. We held there that the 20 minute response time was reasonable under the circumstances. Skelly, 1994 OK CR 55, ¶ 15, 880 P.2d at 405.

19 This Court is unwilling to impose a rigid time limitation on the duration of a traffic stop; however, we are concerned with the duration of the traffic stop in the present case. An examination of the record shows no cireumstances which justify the length of this detention. Indeed the record leads us to conclude this was a routine traffic stop, which should have resulted in a correspondingly abbreviated detention.5 The officer should have issued the warning citation to Seabolt expeditiously. Had he done so, Seabolt would have left the seene prior to the arrival of the canine unit. Without evidence in the record to show some reason why it took the officer 25 minutes to fill out the warning citation and complete his traffic stop duties, a finding that the length of the detention exceeded the scope of the traffic stop is justified. We must decide whether the officer's justification for prolonging the detention was reasonable under the totality of the cireumstances. See Lunsford v. State, 1982 OK CR 168, ¶ 11, 652 P.2d 1243, 1245.

1 10 The Kansas Court of Appeals recently considered whether an officer was justified in extending the detention of a motorist based on the driver's nervous behavior and the officer's observation of the car minutes before the stop at a home under police surveillance for drug activity. State v. Boykins, 34 Kan.App.2d 144, 118 P.3d 1287 (2005). It found that "mere propinquity" to others independently suspected of criminal activity together with the defendant's display of anxiety and nervousness when stopped for a traffic violation did not amount to reasonable suspicion of criminal activity,. Boykins, 118 P.3d at 1291. The Boykins court found that nervous behavior alone is insufficient to create reasonable suspicion to prolong a traffic stop, but may contribute to a finding of reasonable suspicion if accompanied by other suspicious circumstances.6 - Boykins, 118 P.3d at 1290-91. That court also found that the defendant's brief stop at a suspected drug house without evidence the defendant did anything suspicious or was connected some way to the occupants of the house did not amount to reasonable suspicion of criminal activity. Id. at 1291.

111 Here the officer testified that Seabolt was nervous and fidgety while retrieving his license. The officer saw Sea-bolt's car at a house he suspected of drug activity. He did not observe the in and out traffic he associated with drug activity while Seabolt's car was parked there, nor did he see Seabolt. The officer had no information connecting Seabolt to the occupant of the house and the officer conceded he had not seen that occupant in 30 to 60 days. Under *239these circumstances, the officer did not have reasonable suspicion to prolong the traffic stop. Seabolt's rights under the Fourth Amendment were violated as a matter of law and the evidence from the search should have been suppressed. The remaining evidence, if any, is insufficient to support a conviction and Seabolt's conviction must be reversed with instructions to dismiss. Our decision on the search and seizure issue renders moot Seabolt's other claims.

DECISION

{12 The Judgment and Sentence of the trial court is REVERSED with Instructions to DISMISS. Pursuant to Rule 8.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon delivery and filing of this decision.

CHAPEL, P.J., and C. JOHNSON, J., concur. LEWIS, J., concurs in results. LUMPKIN, V.P.J., dissents.

. - Seabolt produced a valid license and insurance verification on the car. Seabolt told the officer the car belonged to his brother and the officer's record check confirmed it.

. The officer testified that he had seen pedestrian and vehicle traffic that was consistent with drug activity at the house sometime in the seven days preceding Seabolt's arrest. The officer did not observe any drug related activity while Seabolt's car was at the house.

. Judge Lumpkin states in dissent that appellate review of a trial court's determination of the reasonableness of a search or seizure under the Fourth Amendment should not be subject to de novo review. He contends that such determinations should be reviewed under some undefined but more highly deferential standard. In support of his position, Judge Lumpkin relies primarily on two sources of authority: (1) a recounting of the historical development of Anglo-American appellate process contained in Kelly Kunsch, Standard of Review (State & Federal): A Primer, Seattle University L.Rev. Vol. 18, No. 1, 12 (Fall 1994); and (2) Justice Scalia's dissent in Ornelas v. United States, 517 U.S. 690, 700-705, 116 S.Ct. 1657, 1663-1666, 134 L.Ed.2d 911, 921-924(1996)(Scalia J. dissenting). While Professor Kunsch's scholarly exposition certainly provides an interesting historical perspective, and Justice Scalia's dissent is thought-provoking, as always, we note that Justice Scalia was the single dissenting justice in the Ornelas case. In an eight-to-one opinion authored by Justice Rehnquist and joined by Justices Thomas, Kennedy, O'Connor, Souter, Breyer, Ginsburg, and Stevens, the Supreme Court unequivocally held that "determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663. The Court cautioned, however, that "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. Our standard as set out above is nearly identical to that articulated by the Ornelas majority.

. The minute order entered: -May 20, 2004 stated in relevant part, "Decision. Defendant's motion denied, search good."

. - "In a routine traffic stop a trooper may request a driver's license, vehicle registration and other required papers, run necessary computer checks, and then issue any warning or citation." U.S. v. Gregoire, 425 F.3d 872, 879 (10th Cir.2005).

. This Court noted that nervous behavior alone did not create reasonable suspicion but could be considered with other circumstances. State v. Paul, 2003 OK CR 1, ¶ 3 n. 4, 62 P.3d at 390 n. 4.