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F-2007-616

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Donald and Tanya Dorr v The State Of Oklahoma

F-2007-616

Filed: Sep. 19, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Donald and Tanya Dorr appealed their convictions for growing and possessing marijuana, as well as for other related charges. Donald was sentenced to 20 years in prison, and Tanya received a suspended sentence of 10 years. The Dorrs argued that the evidence against them should be suppressed because the police conducted an illegal search without a warrant or proper consent. The court found that their initial consent to search was not given freely due to the circumstances surrounding the police's presence, which included military-style gear and intimidation. The court ruled that the Dorrs' convictions should be reversed and their cases dismissed. Judge Lumpkin dissented, believing the police followed the law, and that the consent given by the Dorrs was valid.

Decision

All of Donald Dorr's convictions and all of Tanya Dorr's convictions in the current case are hereby REVERSED AND DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • was there an illegal search based on the trial court's denial of the appellants' motion to suppress evidence facilitated by a police observer in a helicopter?
  • was there an illegal search due to the trial court's denial of the appellants' motion to suppress evidence gathered by the police for failure to obtain a search warrant?
  • was there an illegal search because the trial court denied the appellants' motion to suppress evidence obtained by coerced verbal consent to search?
  • was there an illegal search due to the trial court's denial of the appellants' motion to suppress evidence obtained by coerced written consent to search?
  • was there an illegal search because the trial court denied the appellants' motion to suppress evidence inasmuch as Miranda rights were read after consent to search was obtained?
  • was there an illegal search based on the trial court's denial of the appellants' motion to suppress evidence obtained by officers outside their jurisdictional boundaries?
  • was there an illegal search due to the trial court's denial of the appellants' motion to suppress by ignoring the fact that the State did not present any cases or any legal authority to refute the motion?
  • did the trial court deny the appellants' motion to reinstate their constitutional right to a preliminary hearing?
  • did the trial court deny the appellants' motion to reinstate their constitutional right to a trial by jury?

Findings

  • the court erred in denying the motion to suppress evidence obtained by a police observer in a helicopter
  • the court erred in denying the motion to suppress evidence gathered without a search warrant
  • the court erred in denying the motion to suppress evidence obtained by coerced verbal consent to search
  • the court erred in denying the motion to suppress evidence obtained by coerced written consent to search
  • the court erred in denying the motion to suppress evidence obtained after Miranda rights were read
  • the court erred in denying the motion to suppress evidence obtained by officers outside their jurisdictional boundaries
  • the court erred in denying the motion to suppress, ignoring the lack of any evidence or legal authority from the state
  • the court erred in denying the motion to reinstate the constitutional right to a preliminary hearing
  • the court erred in denying the motion to reinstate the constitutional right to a trial by jury
  • the trial court abused its discretion in denying the Dorrs' motion to suppress
  • all of Donald Dorr's convictions and all of Tanya Dorr's convictions must be reversed and the cases against them dismissed

F-2007-616

Sep. 19, 2008

Donald and Tanya Dorr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Donald Dorr was tried by the trial court, the Honorable James D. Goodpaster, and convicted of Unlawful Cultivation of Marihuana, under 63 O.S.2001, § 2-509 (Count I); Unlawful Possession of Marihuana with Intent to Distribute, under 63 O.S.Supp.2003, § 2-401(B)(1) (Count II); Carrying a Firearm After Felony Conviction, under 21 O.S.Supp.2003, § 1283 (Count III); and Unlawful Possession of Paraphernalia, under 63 O.S.2001, § 2-405(B) (Count IV), in Mayes County District Court, Case No. CF-2004-266B. Tanya Dorr, the wife of Donald Dorr, was tried along with Donald Dorr and convicted of Unlawful Cultivation of Marihuana, under 63 O.S.2001, § 2-509 (Count I); Unlawful Possession of Marihuana with Intent to Distribute, under 63 O.S.Supp.2003, § 2-401(B)(1) (Count II); and Unlawful Possession of Paraphernalia, under 63 O.S.2001, § 2-405(B) (Count IV), in Mayes County District Court, Case No. CF-2004-266A.

The Honorable James D. Goodpaster sentenced Donald Dorr to imprisonment for twenty (20) years and a $1000 fine on Count I; imprisonment for ten (10) years on Count II; imprisonment for five (5) years on Count III; and a fine of $250 on Count IV, with all of the sentences to be run concurrently. The court sentenced Tanya Dorr to imprisonment for ten (10) years, with the entire sentence suspended and the first two (2) years under supervision, and a $500 fine on Count I; imprisonment for ten (10) years, with the entire sentence suspended, on Count II; and a fine of $250 on Count IV, with the sentences in Counts I and II to be run concurrently.

Donald and Tanya Dorr (the Dorrs) together appeal their convictions. The Dorrs raise the following propositions of error:

I. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE FACILITATED BY A POLICE OBSERVER IN A HELICOPTER.
II. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE GATHERED BY THE POLICE FOR FAILURE TO OBTAIN A SEARCH WARRANT.
III. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE OBTAINED BY COERCED VERBAL CONSENT TO SEARCH.
IV. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE OBTAINED BY COERCED WRITTEN CONSENT TO SEARCH.
V. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE INASMUCH AS MIRANDA RIGHTS READ AFTER CONSENT TO SEARCH WAS OBTAINED.
VI. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS EVIDENCE OBTAINED BY OFFICERS OUTSIDE THEIR JURISDICTIONAL BOUNDARIES.
VII. ILLEGAL SEARCH-THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO SUPPRESS BY IGNORING THE FACT THAT THE STATE DID NOT PRESENT ANY CASES OR ANY LEGAL AUTHORITY TO REFUTE THE MOTION.
VIII. THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO REINSTATE THEIR CONSTITUTIONAL RIGHT TO A PRELIMINARY HEARING.
IX. THE TRIAL COURT DENIED THE APPELLANTS’ MOTION TO REINSTATE THEIR CONSTITUTIONAL RIGHT TO A TRIAL BY JURY.

In Proposition I, the Dorrs challenge the initial helicopter flyover of their property, which first alerted Oklahoma Bureau of Narcotics Agent Brad Balch that the Dorrs were possibly growing marijuana on their property. Balch’s observation of the Dorrs’ property was part of a larger aerial investigation looking for evidence of marijuana growing in rural Mayes County. The Supreme Court addressed such helicopter surveillance in Florida v. Riley and concluded that it did not typically constitute a Fourth Amendment search. This Court addressed a similar situation in Dale v. State, where Drug Task Force agents were alerted to the possible cultivation of marijuana on a rural Oklahoma property based on their aerial observation of the suspected marijuana the day before. This Court commented, citing Riley, that this aerial observation itself was entirely lawful.

The Dorrs cite to and rely upon this Court’s unpublished decision in Milligan v. State as support for their claim that the initial helicopter observation of the marijuana on their property was itself illegal. In Milligan, this Court held that Milligan had a reasonable expectation of privacy which was violated when OBN agents observed his curtilage from the helicopter. The Dorrs, however, have totally failed to establish that the three or four marijuana patches observed on their property from the helicopter were all within the curtilage of their home—and they never specifically attempted to make such a showing in the trial court. The record in this case suggests that the marijuana patch that was closest to the Dorr home was approximately 30 yards to the west of the home, near a barn, but that there were other marijuana patches on the five-acre property that were quite far from the Dorr home. The Dorrs have failed to establish that Milligan is applicable to their case. Proposition I is rejected accordingly.

In Proposition II, the Dorrs challenge the failure of the OBN agents to get a search warrant to search their property; and in Proposition III, the Dorrs assert that the initial verbal consent to search their property, given by Donald Dorr to Agent Knox, was involuntary and therefore invalid. We take up these claims together, since both were likewise involved in the factually similar case of Dale v. State.

In both the current case and Dale, law enforcement officers became aware of potential marijuana cultivation on a rural, residential Oklahoma property via an aerial observation from a helicopter. And in both cases the law enforcement officers failed to seek a search warrant for the property at issue, choosing instead to assemble a large team of armed drug enforcement agents, who would then descend upon the property unannounced, using multiple vehicles and a helicopter overhead, and then directly approach the property owner and request verbal consent to search the property.

In Dale, this Court stated as follows: We begin by restating the fundamental rule that searches conducted outside the judicial process, without prior approval by a magistrate, are presumptively unreasonable under both the Fourth Amendment to the United States Constitution, and Article 2, § 30 of the Oklahoma Constitution. The exceptions to this rule are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made immediate action imperative.

The Court found that [t]he agents had ample time to seek a search warrant based on their aerial observation of the suspected marijuana, which was one day earlier. We concluded as follows: The Court finds no reason for a warrantless search. When law enforcement has this much time to obtain a search warrant, one should and must be obtained. The State presented no evidence of any exigent circumstances that would show a warrantless entry was necessary.

The Dorrs’ defense at trial was that most of the marijuana found on their property was found out in the woods, far enough from the home that Tanya Dorr did not even know it was there. We conclude that the current case is consistent with the ruling in Dale on these issues.

This Court finds that the trial court abused its discretion in denying the Dorrs’ motion to suppress. Thus all of the Dorrs’ convictions must be reversed and the cases against them dismissed. This Court’s conclusion that the Dorrs’ motion to suppress should have been granted renders all of their other claims moot.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that all of Donald Dorr’s convictions and all of Tanya Dorr’s convictions must be reversed and that the cases against them shall be dismissed.

Decision
All of Donald Dorr’s convictions and all of Tanya Dorr’s convictions in the current case are hereby REVERSED AND DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Donald Dorr was also ordered to pay a victim's compensation assessment of $100 on each of the first three counts, as well as a $1,000 drug fund assessment and other court costs and fees.
  2. Tanya Dorr was also ordered to pay a victim's compensation assessment of $100 on each of the first two counts, as well as a $500 drug fund assessment and other court costs and fees.
  3. 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).
  4. The 5-4 decision in Riley held that a law enforcement agent who observed marijuana growing in a greenhouse located in a residential backyard, within the home's "curtilage," using only the "naked eye" but from a helicopter hovering 400 feet about the property, had not "searched" the greenhouse, under the Fourth Amendment, because the homeowner did not have a reasonable expectation of privacy against such an observation. Id. at 450-52, 109 S.Ct. at 696-97; 488 U.S. at 452, 109 S.Ct. at 698 (O'Connor, J., concurring in the judgment). Both the plurality opinion and O'Connor's separate opinion left open the possibility that some helicopter surveillance operations could constitute unreasonable Fourth Amendment "searches." Id.
  5. 2002 OK CR 1, 38 P.3d 910.
  6. Id. at II 9, 38 P.3d at 912.
  7. Id. at II 9 n.3, 38 P.3d at 912 n.3 (citing and summarizing Riley).
  8. See Milligan v. State, F-2003-1241 (Dec. 23, 2005).
  9. Id. at p. 5. There was testimony in the record in Milligan suggesting that the helicopter descended to a low altitude, just above the tree line, over the Milligan property. Id. at pp. 4-5.
  10. In fact, Tanya Dorr's defense at trial was that most of the marijuana found on their property was found out in "the woods," far enough from the home that she did not even know it was there.
  11. Id. at II 7, 38 P.3d at 911-12 (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971), and Castleberry v. State, 1984 OK CR 30, II 6-7, 678 P.2d 720, 723).
  12. Id. at II 9, 38 P.3d at 912.
  13. In addition, one judge, in a one-sentence separate opinion, specifically noted, "I agree that the 'consent' to search was not voluntary under the facts in this case, and the results of the search must be suppressed." See id., 2002 OK CR 1, 38 P.3d at 913 (Lile, J., specially concurring).
  14. Id. at II 10, 38 P.3d at 912 (internal citations omitted).
  15. The main factual difference between Dale and the current case, which the State emphasizes, is that in Dale the agents had to climb over a locked gate to enter the property, whereas in the current case the gate happened to be open, because the Dorrs were mowing the lawn that day.
  16. Both at the suppression hearing and at trial the Appellants said the agents were "nice" and the conversation was "pleasant", and the Appellants gave consent voluntarily.
  17. A remote "wood" area is most assuredly not meant to be considered as a part of the protected "curtilage" that the U.S. Supreme Court meticulously defined as an area that "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).
  18. Oliver v. United States, 466 U.S. 170, 183, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984).
  19. 2002 OK CR 1, 38 P.3d 910, 912.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-509 (2001) - Unlawful Cultivation of Marihuana
  • Okla. Stat. tit. 63 § 2-401 (2003) - Unlawful Possession of Marihuana with Intent to Distribute
  • Okla. Stat. tit. 21 § 1283 (2003) - Carrying a Firearm After Felony Conviction
  • Okla. Stat. tit. 63 § 2-405 (2001) - Unlawful Possession of Paraphernalia
  • Okla. Stat. tit. 22 § 30 - Searches and Seizures

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:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989)
  • Dale v. State, 2002 OK CR 1, 38 P.3d 910
  • Milligan v. State, F-2003-1241 (Dec. 23, 2005)
  • Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971)
  • Castleberry v. State, 1984 OK CR 30, I 6-7, 678 P.2d 720, 723
  • Oliver v. United States, 466 U.S. 170, 183, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)
  • United States v. Dunn, 480 U.S. 294, 300-301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987)
  • Luman v. State, 1981 OK CR 70, I 5, 629 P.2d 1275, 1276
  • Horner v. State, 1992 OK CR 46, I 15, 836 P.2d 679, 682
  • Seabolt v. State, 2006 OK CR 50, I 5, 152 P.3d 235, 237
  • Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 650-651

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