Derreck Ryan Gray v State Of Oklahoma

F-2016-1015

Filed: Jan. 4, 2018

Not for publication

Prevailing Party: State Of Oklahoma

Summary

**Derreck Ryan Gray appealed his conviction for Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine) With Intent to Distribute and Obstructing an Officer. Conviction and sentence were 24 years for the first charge and 1 year plus a $100 fine for the second charge. Judge Rowland dissented.**

Decision

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an articulable suspicion necessary to warrant the seizure of Appellant's property?
• Did the trial court err in denying Appellant's motion to suppress drug evidence obtained as a result of his illegal seizure?
• Was the seizure of the plastic bag containing drugs lawful as it was obtained incident to Appellant's arrest for obstructing an officer?
• Did Appellant's conduct of grabbing the bag and attempting to flee provide probable cause for his arrest?

Findings

• the trial court did not err in denying Appellant's motion to suppress
• Appellant's Fourth Amendment rights were not abridged
• the subsequent seizure of the plastic bag was lawful as it was obtained incident to the arrest
• the judgment and sentence is affirmed

F-2016-1015

Jan. 4, 2018

Derreck Ryan Gray

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant Derreck Ryan Gray was tried by jury and convicted of Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine) With Intent to Distribute, After Former Conviction of a Felony (Count I) (63 O.S.Supp.2012, § 2-401(B)(2)) and Obstructing an Officer, After Former Conviction of Two or More Felonies (Count II) (21 O.S.2011, § 540) in the District Court of Payne County, Case No. CF-2015-380. The jury recommended as punishment imprisonment for twenty-four (24) years in Count I and one year and a five hundred dollar ($500.00) fine in Count II. The trial court sentenced accordingly, except the fine in Count II was reduced to one hundred dollars ($100.00). The sentences were ordered to be served concurrent with each other. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following proposition of error in support of his appeal:

I. At the time Officer Cluck seized Appellant’s property, he lacked the articulable suspicion necessary to warrant the seizure. Accordingly, the trial court erred when it denied Appellant’s motion to suppress.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted. In Appellant’s sole proposition of error, he contends that the trial court erred in denying his motion to suppress drug evidence obtained as a result of his illegal seizure. We review a trial court’s ruling on a suppression motion for an abuse of discretion. Johnson v. State, 2013 OK CR 12, II 8, 308 P.3d 1053, 1055; State v. Pope, 2009 OK CR 9, II 4, 204 P.3d 1285, 1287; Gomez v. State, 2007 OK CR 33, 5, 168 P.3d 1139, 1141. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194.

In reviewing a trial court’s decision suppressing evidence, we defer to the trial court’s findings of fact unless they are clearly erroneous. State v. Nelson, 2015 OK CR 10, I 11, 356 P.3d 1113, 1117. In reviewing the court’s ruling on the motion to suppress, we look to the record at the suppression hearing. Leaf v. State, 1983 OK CR 167, IT 2, 673 P.2d 169, 170. The trial on the merits is a separate and distinct proceeding, and the evidence therein does not relate back to bolster up the evidence on the motion to suppress. Id.

Appellant was the passenger in a car stopped for a traffic violation. As neither the driver nor Appellant had a valid driver’s license, the vehicle was to be impounded. The evidence showed that when the traffic stop was concluded, Appellant was free to leave. Officers ordered Appellant out of the vehicle so they could begin to inventory the vehicle before its impoundment. As Appellant exited the vehicle, Officer Cluck observed a white plastic bag drop to the floorboard of the vehicle. Officer Cluck ordered Appellant to leave the bag alone. Instead of obeying the officer’s command, Appellant grabbed the bag and attempted to flee with it. Appellant was soon subdued by the officers and placed under arrest for Obstructing an Officer. The white plastic bag Appellant had grabbed was then retrieved and opened. A later analysis of its contents showed it contained methamphetamine and other dangerous substances.

Appellant does not challenge the validity of the traffic stop or Officer Cluck’s right to inventory the soon-to-be impounded vehicle. Appellant’s challenge is to the officer’s seizure of the white plastic bag. Appellant argues that Officer Cluck illegally seized his property and person when the officer grabbed his arm and commanded him to leave the bag alone.

We find that Appellant’s criminal behavior in front of the officers distinguishes his case from the authorities relied upon in his appellate brief involving seizures based only on suspicion of wrongdoing. See United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1960). If an officer has probable cause to believe that an individual has committed an offense in his presence, even a minor offense, he may, without violating the Fourth Amendment, arrest the offender. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001). A peace officer may without a warrant, arrest a person for a public offense committed or attempted in the officer’s presence. 22 O.S.2011, § 196(1). Further, [e]very person who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor. 21 O.S.2011, § 540.

Officer Cluck was preparing to inventory the vehicle for impoundment when Appellant committed the crime of obstructing an officer by ignoring the officer’s command to leave the plastic bag in its place and instead grabbing the bag and attempting to flee with it. See Trent v. State, 1989 OK CR 36, 119 2-5, 777 P.2d 401, 402-403 (appellant who frustrated and hindered state trooper’s efforts to impound a vehicle was guilty of obstructing an officer under § 540). Appellant’s conduct provided the probable cause for Officer Cluck to detain and arrest Appellant, prior to the retrieval of the plastic bag.

Additionally, an officer may continue to question a [person] originally detained for a valid traffic stop, after the initial traffic stop has concluded if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. State v. Bass, 2013 OK CR 7, IT 12, 300 P.3d 1193, 1196. Officer Cluck testified that as soon as he saw the white plastic bag, based upon his ten years in law enforcement, he immediately thought it was a drug bag. The bag, combined with the officer’s experience, provided the objectively reasonable and articulable suspicion illegal activity was occurring to detain Appellant. However, Cluck did not have a chance to detain Appellant and investigate his suspicions of illegal activity because Appellant grabbed the bag and attempted to flee. Appellant’s commission of the offense of Obstructing an Officer in front of the officers provided the probable cause necessary for Appellant’s arrest. The subsequent seizure of the plastic bag was lawful as it was obtained incident to the arrest. Appellant’s Fourth Amendment rights were not abridged and the trial court did not abuse its discretion in denying the motion to suppress. This proposition is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY: LUMPKIN, P.J.

LEWIS, V.P.J.: Concur

HUDSON, J.: Concur

KUEHN, J.: Concur

ROWLAND, J.: Concur

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Footnotes:

1. 63 O.S.Supp.2012, § 2-401(B)(2)
2. 21 O.S.2011, § 540
3. 22 O.S.2011, § 196(1)
4. 21 O.S.2011, § 540
5. 22 O.S.2011, § 196(1)
6. Trent v. State, 1989 OK CR 36, 119 2-5, 777 P.2d 401, 402-403
7. State v. Bass, 2013 OK CR 7, IT 12, 300 P.3d 1193, 1196
8. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001)
9. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)
10. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)
11. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)
12. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1960)
13. State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
14. State v. Nelson, 2015 OK CR 10, I 11, 356 P.3d 1113, 1117
15. Leaf v. State, 1983 OK CR 167, IT 2, 673 P.2d 169, 170

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2012) - Unlawful Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 540 (2011) - Obstructing an Officer
• Okla. Stat. tit. 22 § 196(1) (2011) - Arrest without a warrant

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:

• Johnson v. State, 2013 OK CR 12, II 8, 308 P.3d 1053, 1055
• State v. Pope, 2009 OK CR 9, II 4, 204 P.3d 1285, 1287
• Gomez v. State, 2007 OK CR 33, 5, 168 P.3d 1139, 1141
• State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
• State v. Nelson, 2015 OK CR 10, I 11, 356 P.3d 1113, 1117
• Leaf v. State, 1983 OK CR 167, IT 2, 673 P.2d 169, 170
• United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)
• Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)
• Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)
• Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1960)
• Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001)
• Trent v. State, 1989 OK CR 36, 119 2-5, 777 P.2d 401, 402-403
• State v. Bass, 2013 OK CR 7, IT 12, 300 P.3d 1193, 1196