Russell Wayne Horn, Jr. v The State of Oklahoma

F-2006-736

Filed: Oct. 15, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Russell Wayne Horn, Jr. appealed his conviction for Trafficking in Illegal Drugs (methamphetamine) and Unlawful Possession of a Controlled Drug (cocaine). Conviction and sentence were reversed and remanded for a new trial on the first count and dismissal for the second count. Judge Lumpkin dissented.

Decision

The Judgments and Sentences of the trial court on Count I is REVERSED and REMANDED for a new trial and Count II is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the search of Horn's vehicle illegal because it was not specifically described within the search warrant?
• Did the officers have probable cause to search Horn's vehicle based on their knowledge before obtaining the warrant?
• Was the parking lot where Horn's vehicle was located considered part of the curtilage of his apartment?
• Did the "good faith" exception to the exclusionary rule apply to uphold the search of Horn's vehicle?
• Were the items seized from Horn's vehicle subject to suppression due to the illegal search?

Findings

• the court erred in denying the motion to suppress the evidence obtained from the search of the vehicle
• the search of the vehicle was not authorized based on the warrant due to inadequate description
• the parking lot was not part of the curtilage of Horn's residence
• the "good faith" exception to the exclusionary rule does not apply
• the Judgment and Sentence in Count I is reversed and remanded for a new trial
• the Judgment and Sentence in Count II is reversed and remanded with instructions to dismiss

F-2006-736

Oct. 15, 2007

Russell Wayne Horn, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Russell Horn was tried by jury and convicted of Count I: Trafficking in Illegal Drugs (methamphetamine) in violation of 63 O.S.Supp.2004, §2-415 and Count II: Unlawful Possession of a Controlled Drug (cocaine) in violation of 63 O.S. Supp.2004, § 2-402, After Former Conviction of Two or more felony offenses in the District Court of Tulsa County, Case No. CF-05-914. In accordance with the jury’s recommendation, the Honorable Clancy Smith sentenced Horn to concurrent sentences of Life Imprisonment without the Possibility of Parole for Count I, and nineteen and a half (19 1/2) years’ imprisonment for Count II. Horn has perfected his appeal to this Court.

At approximately 6:15 a.m. on February 24, 2005, Tulsa Police Officers executed a search warrant on Horn’s home and a certain vehicle. Upon entering the residence, the Officers secured Horn and commenced their search, which revealed $4,805.00 found in Horn’s pocket and .71 grams of methamphetamine found under a couch cushion. Officer Corbin Collins found a set of car keys on the coffee table and sent ATF Agent Matthew Abowd to search Horn’s vehicle. When Agent Abowd attempted to unlock the car with the keys, he set off the alarm. Attempting to turn off the alarm, Agent Abowd opened the hood to disconnect the battery. Once opened, Agent Abowd immediately noticed a black camera bag next to the brake cylinder. The search of the camera bag revealed 20.73 grams of methamphetamine, almost 5 grams of cocaine, and one Xanax tablet.

In his sole proposition, Horn argues that the search of his car was illegal because it was not specifically described within the search warrant. Horn filed a motion to suppress, which was denied. Horn renewed his arguments for suppression in a second motion immediately before trial. Again, it was denied. We now review the issue de novo giving deference to the trial court’s findings of fact. A valid warrant must specifically describe the place to be searched so that the executing officer can find it without any additional information. This rule is designed to limit the discretion of law enforcement officers executing the warrant. A warrant deficient in its description is invalid. Here, the warrant specifically described Horn’s apartment but failed to specifically describe the vehicle. A certain vehicle would allow law enforcement to search any vehicle under the warrant. As the officers could not determine which vehicle to search without additional information, the search of Horn’s car was not authorized based upon the description contained in the warrant.

The State submits that even if the vehicle’s description is inadequate this Court should uphold the search because the officers knew that Horn drove a black Saturn. Other courts have considered the knowledge of the executing officer to determine the adequacy of a warrant’s property description. We are not persuaded by this argument. If the officers knew that Horn drove a black Saturn before obtaining the warrant, they could have and should have specifically described the car. This Court will not start down the slippery slope of applying an officer’s knowledge to a deficient description. Doing so would render the specificity requirement meaningless.

The State also argues that the search of Horn’s car was proper either because (1) the vehicle was within the apartment’s curtilage or (2) the search was in good faith. These arguments fail. Any item that could contain the illegal items to be seized and is within the curtilage of the home to be searched falls within the terms of the warrant specifically describing the home. Here, the warrant specifically described Horn’s residence, thus the search of Horn’s curtilage was authorized. However, this was not a single family home but an apartment building. This requires the court to assess whether the parking lot of a multi-family dwelling falls within the curtilage of a dwelling in the complex.

The central consideration when determining an area is curtilage is whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection. To aid this analysis, we consider four factors: [1] the proximity of the area claimed to be curtilage to the home; [2] whether the area is within an enclosure surrounding the home; [3] the nature and uses to which the area is put; and [4] the steps taken by the resident to protect the area from observation by people passing by. Applying these factors, this parking lot was not a part of Horn’s residence’s curtilage. The parking lot was approximately fifty (50) feet from his apartment. There was no enclosure around the parking lot. The area was used as a common parking lot for all residents. Horn did not attempt to conceal his car in the parking lot to protect it from public view. Lastly, the area was open to all tenants and public visitors. This parking lot was not intimately tied to any apartment residence. We join other courts considering this issue in finding that parking lots of multi-family dwellings are not part of the curtilage for any of the units.

The State finally asserts that even if the search was improper, it should be upheld as it was in good faith. The Supreme Court adopted the good faith exception to uphold a search where the exclusionary rule’s purpose of deterring police misconduct was not furthered by suppressing the evidence. This Court has consistently rejected its previous opportunities to adopt the good faith exception. We do so again. The good faith exception to the exclusionary rule is limited. It does not apply when the purpose of the exclusionary rule in deterring police misconduct is furthered. Moreover, [f]ormulations of the so-called ‘good faith’ exception to the exclusionary rule do not include within their scope actions in ignorance of established law. The officers knew of their need to describe specifically all the property that they wanted to search because they did so for Horn’s residence. However, they failed to describe his car. We find that the good faith exception does not apply. The officer that obtained the warrant knew that Horn drove a black Saturn but failed to describe it in the warrant. We will not further erode clearly established law to save this search, however unfortunate the result. Law enforcement know the constitutional limitations placed upon them in conducting searches of people, places or their effects. Failure to follow those rules requires all items seized from Horn’s vehicle to be suppressed from evidence. As a result, the Judgment and Sentence in Count I is reversed and remanded for a new trial, and the Judgment and Sentence in Count II is reversed and remanded with instructions to dismiss.

Decision

The Judgments and Sentences of the trial court on Count I is REVERSED and REMANDED for a new trial and Count II is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

SHANNON McMURRAY
7633 EAST 63RD PLACE
SUITE 510
TULSA, OKLAHOMA 74103
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

STEVEN M. PRESSON
207 WEST MAIN STREET
POST OFFICE BOX 5392
NORMAN, OKLAHOMA 73070-5392
ATTORNEYS FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
HEATH ROBINSON
DISTRICT ATTORNEY’S OFFICE
TULSA COUNTY COURTHOUSE
313 NE 21ST STREET
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEY FOR THE STATE

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Footnotes:

1. 63 O.S.Supp.2004, § 2-415
2. 63 O.S. Supp.2004, § 2-402
3. Seabolt v. State, 152 P.3d 235, 237 (Okl.Cr.2006).
4. Anderson v. State, 657 P.2d 659, 661 (Okl.Cr.1983).
5. U.S. v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997).
6. U.S. v. Occhipinti, 998 F.2d 791, 799 (10th Cir. 1993).
7. Anderson, 679 P.2d at 661.
8. Beeler v. State, 677 P.2d 653, 657 (Okl.Cr. 1984).
9. U.S. v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 941 L.Ed.2d 326 (1987).
10. Mack v. City of Abilene, 461 F.3d 547, 554 (5th Cir.2006).
11. U.S. v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979).
12. U.S. v. Cruz-Pagan et.al, 537 F.2d 554, 558 (1st Cir. 1976).
13. Commonwealth v. McCartney, 705 N.E.2d 1110, 1113 (Mass. 1999).
14. U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
15. Dodson v. State, 150 P.3d 1054, 1058-59 (Okl.Cr.2006).
16. Solis-Avila v. State, 830 P.2d 191, 192 (Okl.Cr.1992).
17. Hightower v. State, 672 P.2d 304, 307 (Okl.Cr.1984).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2004) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-402 (2004) - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 22, Ch. 18, App. § 3.15 (2006) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Certain Crimes

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:

• Seabolt v. State, 152 P.3d 235, 237 (Okl.Cr.2006)
• Anderson v. State, 657 P.2d 659, 661 (Okl.Cr.1983)
• U.S. v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)
• U.S. v. Occhipinti, 998 F.2d 791, 799 (10th Cir. 1993)
• Beeler v. State, 677 P.2d 653, 657 (Okl.Cr.1984)
• U.S. v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 941 L.Ed.2d 326 (1987)
• Mack v. City of Abilene, 461 F.3d 547, 554 (5th Cir. 2006)
• U.S. v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979)
• U.S. v. Cruz-Pagan et.al, 537 F.2d 554, 558 (1st Cir. 1976)
• Commonwealth v. McCartney, 705 N.E.2d 1110, 1113 (Mass. 1999)
• Joyner v. State, 303 So.2d 60 (Fla. 1974)
• U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)
• Dodson v. State, 150 P.3d 1054, 1058-59 (Okl.Cr.2006)
• Solis-Avila v. State, 830 P.2d 191, 192 (Okl.Cr.1992)
• Hightower v. State, 672 P.2d 304, 307 (Okl.Cr.1984)
• Gomez v. State, 2007 OK CR 33, P.3d