Veronica Coronado v State Of Oklahoma

F-2002-718

Filed: Aug. 22, 2003

Not for publication

Prevailing Party: Veronica Coronado

Summary

Veronica Coronado appealed her conviction for Trafficking in Illegal Drugs. Conviction and sentence reversed. Johnson, Lile, and Lumpkin dissented.

Decision

The Fourth Amendment to the United States Constitution prohibits only unreasonable searches. The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968), held that if an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. However, before the officer can legally conduct a self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Id, 392 U.S. at 27, 88 S.Ct. at 1883. See also Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991). It is only when an officer is justified in believing that the individual whose behavior he is investigating at close range is armed and dangerous to the officer and others, that he may conduct a limited protective search for concealed weapons. Terry, 392 U.S. at 30, 88 S.Ct. at 1884. The requirements articulated in Terry are not limited to pat-down searches for weapons but have also been applied to situations such as the one presented here where the officer asked the individual to lift his shirt. See United States U. Baker, 78 F.3d 135 (4th Cir. 1996). In the present case, Trooper Humdy articulated no particular facts from which he reasonably inferred that Appellant was armed and dangerous. Rather, the record indicates that Trooper Humdy conducted a weapons search of Appellant merely as a matter of course. This is overt violation of the Fourth Amendment's protection from unreasonable searches. Appellant also asserts that once Trooper Humdy had completed his visual search and assured himself that she was not armed, he had no authority to seize the package. Appellant is correct. According to the record before this Court, the only thing the trooper was sure of after he saw the brick shaped object was that it was not a weapon. The record makes clear that the identity of the contents of the package was not immediately apparent to this trooper. Thus, even if he had viewed it legally, he had no authority to seize it without a warrant. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Under the facts of this case, Appellant was subjected to a search and seizure which violated her rights under the Fourth Amendment and the evidence obtained therefrom should have been suppressed. The Judgment and Sentence of the trial court is REVERSED with instructions to DISMISS.

Issues

• Was the search of Appellant's person in violation of the Fourth and Fourteenth Amendments of the United States Constitution, as well as Article II, § 30 of the Oklahoma Constitution?
• Did Trooper Humdy have particular facts to reasonably infer that Appellant was armed and dangerous?
• Was the identity of the contents of the package immediately apparent to the trooper following his visual search?
• Did the trooper have authority to seize the package without a warrant?
• Was the evidence obtained from the search and seizure admissible?

Findings

• the search of Appellant's person violated the Fourth and Fourteenth Amendments of the United States Constitution and Article II, § 30 of the Oklahoma Constitution
• the contraband seized as a result of the search and seizure must be suppressed
• the Judgment and Sentence of the trial court is REVERSED with instructions to DISMISS

F-2002-718

Aug. 22, 2003

Veronica Coronado

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, Veronica Coronado, was convicted of Trafficking in Illegal Drugs in the District Court of Tulsa County, Case No. CF-2001-4931. The jury trial was held before the Honorable Jefferson D. Sellers. The jury assessed punishment at ten years imprisonment and imposed a fine of $25,000.00. The trial court sentenced Appellant accordingly.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse. In reaching our decision, we considered the following proposition of error and determined this result to be required under the law and the evidence:

I. The search of Appellant’s person was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, as well as Article II, § 30 of the Oklahoma Constitution. The contraband seized as a result of the search and seizure must be suppressed.

DECISION

The Fourth Amendment to the United States Constitution prohibits only unreasonable searches. The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968), held that if an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. However, before the officer can legally conduct a self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Id, 392 U.S. at 27, 88 S.Ct. at 1883. See also Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991). It is only when an officer is justified in believing that the individual whose behavior he is investigating at close range is armed and dangerous to the officer and others, that he may conduct a limited protective search for concealed weapons. Terry, 392 U.S. at 30, 88 S.Ct. at 1884. The requirements articulated in Terry are not limited to pat-down searches for weapons but have also been applied to situations such as the one presented here where the officer asked the individual to lift his shirt. See United States U. Baker, 78 F.3d 135 (4th Cir. 1996).

In the present case, Trooper Humdy articulated no particular facts from which he reasonably inferred that Appellant was armed and dangerous. Rather, the record indicates that Trooper Humdy conducted a weapons search of Appellant merely as a matter of course. This is overt violation of the Fourth Amendment’s protection from unreasonable searches. Appellant also asserts that once Trooper Humdy had completed his visual search and assured himself that she was not armed, he had no authority to seize the package. Appellant is correct. According to the record before this Court, the only thing the trooper was sure of after he saw the brick shaped object was that it was not a weapon. The record makes clear that the identity of the contents of the package was not immediately apparent to this trooper. Thus, even if he had viewed it legally, he had no authority to seize it without a warrant. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Under the facts of this case, Appellant was subjected to a search and seizure which violated her rights under the Fourth Amendment and the evidence obtained therefrom should have been suppressed. The Judgment and Sentence of the trial court is REVERSED with instructions to DISMISS.

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
JEFFREY FISCHER
403 SOUTH CHEYENNE, STE 1100
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

RUSSELL ANDERSON
500 S. DENVER
TULSA, OKLAHOMA 74103
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR IN RESULT
LUMPKIN, J.: CONCUR IN RESULT
CHAPEL, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 22 § 30
2. Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968)
3. Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991)
4. United States v. Baker, 78 F.3d 135 (4th Cir. 1996)
5. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993)

Oklahoma Statutes citations:

No Oklahoma statutes found.

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Terry v. Ohio, 392 U.S. 1 (1968)
• Loman v. State, 806 P.2d 663 (Okl.Cr.1991)
• United States U. Baker, 78 F.3d 135 (4th Cir. 1996)
• Minnesota v. Dickerson, 508 U.S. 366 (1993)