Cortez Lamont Franklin v The State Of Oklahoma

F 2000-341

Filed: Mar. 20, 2001

Not for publication

Prevailing Party: Cortez Lamont Franklin

Summary

Cortez Lamont Franklin appealed his conviction for Possession of a Controlled Dangerous Substance (Cocaine Base). His conviction and sentence were 20 years in prison. Johnson dissented. In this case, Franklin was stopped by police who were patrolling a known drug area. He acted suspiciously, which led to the officers investigating. They found drugs after he made a throwing motion when they approached him. However, the court found that the police did not have enough reason to stop him in the first place, so the evidence (the drugs) should not have been allowed in court. Because of this, the court reversed Franklin's conviction and ordered his case to be dismissed.

Decision

The Judgment and Sentence of the trial court is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was there an error in the trial court's failure to suppress the contraband evidence obtained in violation of the Fourth Amendment?
• Was the evidence sufficient to support Appellant's conviction for possession of cocaine base?

Findings

• the trial court erred in failing to suppress the contraband evidence obtained in violation of the fourth amendment
• the evidence was insufficient to support Appellant's conviction for possession of cocaine base

F 2000-341

Mar. 20, 2001

Cortez Lamont Franklin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE PRESIDING JUDGE: Appellant, Cortez Lamont Franklin, was tried and convicted by a jury in Oklahoma County District Court, Case No. CF 99-1834, of Possession of a Controlled Dangerous Substance (Cocaine Base), in violation of 63 O.S.Supp. 1999, § 2-402, after former conviction of two or more felonies. Trial was held before the Honorable Ray Elliott, District Judge, on March 6th through 8th, 2000, and the jury set punishment at twenty (20) years imprisonment. Formal sentencing was held March 16, 2000, and Judge Elliott sentenced Appellant in accordance with the jury’s verdict. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raised the following propositions of error:

1. The trial court erred in failing to suppress the contraband evidence obtained in violation of the fourth amendment, and
2. The evidence was insufficient to support Appellant’s conviction for possession of cocaine base.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that Proposition 1 has merit and warrants reversal for the reasons set forth below. Even in the absence of probable cause, police may stop persons and detain them briefly to investigate a reasonable suspicion that such persons are involved in criminal activity. To justify such an intrusion, the reasonableness standard requires that a police officer be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) Reasonable suspicion is determined from the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). Examining the totality of the circumstances in this case, we find the facts did not give rise to a reasonable suspicion that Appellant was involved in criminal activity sufficient to warrant his detention. Because Appellant’s detention was unreasonable under the fourth amendment, the discarded drugs were the fruits of that unlawful detention and the trial court should have suppressed the evidence. See United States v. King, 990 F.2d 1552, 1563-1565 (10th Cir. 1992). As no evidence remains to sustain the jury’s verdict, this case must be reversed and remanded with instructions to dismiss. We need not address Proposition 2.

Decision

The Judgment and Sentence of the trial court is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

APPEARANCES AT TRIAL
BERT RICHARD
ASST. PUBLIC DEFENDER
OK CO. PUBLIC DEFENDER
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OK 73102

ATTORNEY FOR DEFENDANT

KEVIN MCCRAY
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102

ATTORNEY FOR THE STATE

OPINION BY: JOHNSON, V.P.J.:
LUMPKIN, P.J.: DISSENT
CHAPEL, J.: RECUSE
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR

LUMPKIN, P.J.: DISSENTING

On the night in question, Officers Martin and Hock were patrolling 29th Street in Oklahoma City when they saw Appellant standing at a corner within an apartment complex. Upon seeing him, the officers pulled into the complex with their lights off. Officer Martin testified:

As soon as he saw our presence he immediately turned and started making quick steps away from us. And as he did so he made a somewhat of a tossing motion with his left hand after removing it from his front pocket area and continued walking away from us at a quick pace. (Tr. at 37.)

Appellant made the throwing motion as the officers were exiting their vehicle to approach him closer. (Tr. at 38, 80.) Officer Martin testified Appellant drew their attention because he became very nervous when he noticed our presence, turned and acted as if he was fixing to run. (Tr. at 53, 97.) Furthermore, according to the officers, the area is well known for drug and gang activity; there had been ongoing reports of narcotic activity there and several arrests. (Tr. at 77.) Appellant did not initially respond to the officers’ directions to stop, but he ultimately stopped and was detained. Officers found narcotics when they returned to the place where he made the throwing motion. Officer Hock testified the officers had proceeded to the area to investigate ongoing activities that had taken place in the apartment complex and were looking for persons dealing drugs. (Tr. at 101.)

Upon seeing Appellant, they shined their spotlight on him. Appellant started walking away at a fast rate. The officers got out of their car and ordered Appellant to stop. He made three or four hard steps like he was going to run, but then stopped and came back toward Officer Martin. Martin pointed and said, Look. That’s where he threw it. (Tr. at 102.) Officer Hock then retrieved a plastic bag containing three rocks of crack cocaine.

A police officer has a right and a duty to investigate unusual or suspicious circumstances. Atterberry v. State, 726 P.2d 898, 899 (Okl.Cr.1986). Under appropriate circumstances police officers, in the course of their duty, may approach and question suspicious individuals in order to determine their identity or to maintain status quo momentarily while obtaining more information, even though there are insufficient grounds for arrest. Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880; Prock v. State, 542 P.2d 522, 526 (Okl.Cr.1975); see also Post v. State, 563 P.2d 1193, 1195 (Okl.Cr.1977) (holding that because of suspicious actions, under the circumstances presented, the officers were justified in temporarily detaining defendants to obtain more information).

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal escape. To the contrary, Terry v. Ohio recognizes it may be in the essence of good police work to adopt an intermediate response. Dentis v. State, 578 P.2d 362, 363 (Okl.Cr.1978) citing Adams v. Williams, supra.

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Footnotes:

1. 63 O.S.Supp. 1999, § 2-402
2. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)
3. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)
4. United States U. King, 990 F.2d 1552, 1563-1565 (10th Cir. 1992)
5. Atterberry v. State, 726 P.2d 898, 899 (Okl.Cr.1986)
6. Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991)
7. Adams U. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)
8. Prock v. State, 542 P.2d 522, 526 (Okl.Cr.1975)
9. Post v. State, 563 P.2d 1193, 1195 (Okl.Cr.1977)
10. Floyd v. State, 829 P.2d 981, 983 (Okl.Cr.1992)
11. Dentis v. State, 578 P.2d 362, 363 (Okl.Cr.1978)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 701.8 - Former Conviction
• Okla. Stat. tit. 21 § 51 - Definition of Terms

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• U.S. Const. amend. IV - Fourth Amendment
• U.S. Const. amend. XIV - Fourteenth Amendment

Other citations:

No other rule citations found.

Case citations:

• Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)
• United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)
• United States v. King, 990 F.2d 1552, 1563-1565 (10th Cir. 1992)
• Atterberry v. State, 726 P.2d 898, 899 (Okl.Cr.1986)
• Loman v. State, 806 P.2d 663, 667 (Okl.Cr.1991)
• Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)
• Prock v. State, 542 P.2d 522, 526 (Okl.Cr.1975)
• Post v. State, 563 P.2d 1193, 1195 (Okl.Cr.1977)
• Floyd v. State, 829 P.2d 981, 983 (Okl.Cr.1992)
• Dentis v. State, 578 P.2d 362, 363 (Okl.Cr.1978)