Mario Darrington v The State Of Oklahoma

F-2018-241

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Mario Darrington appealed his conviction for Trafficking in Illegal Drugs (Marijuana and Methamphetamine) and related charges. Conviction and sentence were affirmed as life imprisonment without parole on multiple counts. Judge Hudson dissented. In this case, Mario Darrington was found guilty of trafficking illegal drugs, possession without tax stamps, and an unlawful possession of drug paraphernalia after police searched his home and found a lot of marijuana and methamphetamine. Darrington argued that the evidence should not have been allowed because the search warrant was not valid. He also wanted to know the identity of a confidential informant who helped the police. The court decided that the search warrant was valid and the informant's identity did not need to be disclosed. As a result, Darrington's conviction and sentence were upheld by the court.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Darrington's tendered supplemental brief is REJECTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there an error in denying the motion to suppress the search warrant and to quash the bind over from the preliminary hearing?
• did the district court err in denying the motion to compel disclosure of the unnamed informant's identity?

Findings

• the court did not err in denying the motion to suppress the search warrant and to quash the bind over from the preliminary hearing
• the court did not err in denying the motion to compel disclosure of the unnamed informant's identity
• the Judgment and Sentence of the district court is AFFIRMED
• the supplemental brief is REJECTED

F-2018-241

Sep. 19, 2019

Mario Darrington

Appellant

v

The State Of Oklahoma

Appellee

OPINION

ROWLAND, JUDGE: Appellant Mario Darrington appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2010-939, for Trafficking in Illegal Drugs (Marijuana and Methamphetamine), After Former Conviction of Two or More Felonies (Counts 1 and 2), in violation of 63 O.S.Supp.2007, § 2-415, Possession of Controlled Drugs Without Tax Stamp Affixed, After Former Conviction of Two or More Felonies (Counts 3 and 4), in violation of 68 O.S.2001, § 450.8, and Unlawful Possession of Drug Paraphernalia, a misdemeanor (Count 6), in violation of 63 O.S.Supp.2004, § 2-405. The Honorable Tom C. Gillert, District Judge, presided over Darrington’s jury trial and sentenced him, in accordance with the jury’s verdict, to life imprisonment without parole and a $50,000.00 fine on Count 1, life imprisonment without the possibility of parole and a $100,000.00 fine on Count 2, life imprisonment on Counts 3 and 4, and one year imprisonment and a $1,000.00 fine on Count 6. Judge Gillert ordered the sentences to be served concurrently with each other. Darrington raises the following issues: (1) whether the district court erred by denying his motion to suppress the search warrant and to quash the bind over from preliminary hearing; and (2) whether the district court erred by denying his motion to compel disclosure of the unnamed informant’s identity.

The jury acquitted Darrington of Count 5-Acquiring Proceeds From Drug Activity. Darrington tendered for filing, on April 11, 2019, a supplemental brief seeking to raise a new proposition of error without first obtaining leave to file it. On August 22, 2019, he filed an application for leave to file a supplemental brief with brief in support that sets forth the new claim. In both filings, he contends he is entitled to sentence modification because of the passage of several criminal justice reform measures, namely the amendment to the sentencing scheme of the drug trafficking statute at 63 O.S.Supp.2019, § 2-415, and the passage of State Question 780 effective July 1, 2017. He also asks in his application for leave to file supplemental brief for an order nunc pro tunc converting his prior drug possession felony convictions that were used for sentence enhancement into misdemeanor convictions. Because Darrington’s new claim does not fall within the parameters of the rules of this Court, his application for leave to file a supplemental brief is DENIED and his tendered supplemental brief is rejected and STRICKEN.

Facts

Tulsa police officers executed a search warrant on a residence located at 560 East Reading on March 4, 2010. An officer conducting surveillance prior to the search warrant’s execution saw Darrington exit the residence and drive away. Shortly thereafter, officers knocked on the home’s front door, announced their presence and made contact with Darrington’s girlfriend and two children who were inside. Officers immediately detected the odor of raw marijuana and discovered duffle bags containing marijuana compressed into one-pound bricks in the attached garage. There were 122 bricks in all, weighing approximately 136 lbs., as well as wrapping material, scales with marijuana residue, a knife, and baggies. Officers found in the master bedroom closet the original box for the set of scales in the garage. They also found two baggies of crystal methamphetamine, weighing approximately 45 grams, in the pocket of a men’s suit hanging in that closet. In the same suit pocket were two prescription pill bottles in Darrington’s name. The pickup parked in the garage had Darrington’s name on the insurance verification card inside it. His Oklahoma identification card, a photograph of the pickup and a piece of paper with his name on it were in the top drawer of the master bedroom dresser. There was also a letter in that drawer addressed to Rio the Don, a moniker used by Darrington. Officers also found smaller amounts of marijuana in the living room and master bathroom. Darrington returned to the residence while the search was ongoing. One officer handcuffed him while another officer escorted him to the residence and advised him of his constitutional rights. He waived his rights and admitted that he lived at the residence and that the pickup and drugs were his. He said that he was unemployed and was in the process of selling the drugs presumably for income. He had $800.00 in his pocket when searched by police.

1. Darrington claims the district court’s refusal to suppress evidence obtained during the execution of the search warrant and to quash the bind over order from preliminary hearing was error. He argues the search warrant affidavit was defective insofar as it failed to establish probable cause, was predicated on stale and impermissibly broad information, and omitted details in reckless disregard for the truth. Darrington sought suppression of the evidence seized during the search of his home and person both before and after preliminary hearing. Both the district court and magistrate denied these motions. When the evidence was offered at trial, Darrington failed to object to its admission. Accordingly, we review this claim for plain error only. The burden is on Darrington to demonstrate that an error, plain or obvious under current law, adversely affected his substantial rights. Only if he does so will this Court entertain correcting the error provided the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or represented a miscarriage of justice.

Darrington maintains the search warrant affidavit failed to provide facts establishing the reliability and veracity of the unnamed informant who provided information about marijuana being stored at the target residence and further failed to provide facts showing the affiant adequately corroborated the informant’s tip. This Court employs a totality of the circumstances approach for evaluating the sufficiency of a search warrant affidavit. Under the totality of the circumstances approach, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. For a magistrate to find probable cause, the affidavit must set forth enough underlying facts and circumstances to enable him or her to independently judge the affiant’s conclusion that evidence of a crime is located in the place to be searched. Great deference is accorded the magistrate’s finding of probable cause and we review the record simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

The search warrant affidavit in this case was sufficient and provided the magistrate with a substantial basis for finding the existence of probable cause to believe the target residence housed drugs. According to the affidavit, the informant told the affiant that he knew a Hispanic male who stored quantities of marijuana at an employee’s residence and that the employee was African American. The informant was to meet the two at the residence and get a sample of the marijuana stored there. The affiant outlined meeting the informant, searching the informant, following the informant to the target residence, witnessing the informant interact with an African American male and a Hispanic male in the front yard, following the informant from the target residence to a predetermined location, and receiving marijuana from the informant that he or she obtained from the two men at the target residence. The informant told the affiant the men said they had quantities of marijuana for sale inside the residence. Officers surveilling the target residence observed short term traffic coming and going that they associated and found consistent with the sale of drugs. Furthermore, one of the officers observed the car of a known drug dealer at the target residence. Although the affidavit contained no facts concerning the veracity and basis of knowledge of the unnamed informant, the actions included in the affidavit that were personally observed by the affiant and other officers conducting surveillance of the target residence supported a finding that the target residence was being used in a criminal enterprise for the sale and distribution of marijuana. Contrary to Darrington’s claim, we find a practical, common-sense review of all the circumstances set forth in the affidavit established a fair probability that evidence of a crime would be found at the target residence. We further find Darrington’s claim that the affidavit rested on stale information is without merit. The affiant stated that the controlled drug transaction and the residence surveillance took place within the preceding 72 hours. As we explained in previous cases, the determination of probable cause is not merely an exercise of counting the days or even months between the facts relied on and the issuance of the warrant. Rather, timeliness depends upon the nature of the underlying circumstances and concepts.

We find that the information contained in the affidavit, when viewed as a whole, provided the magistrate with a substantial basis for concluding that criminal conduct of an ongoing nature existed at the time that the search warrant was issued. We therefore conclude that the information used to support the issuance of the search warrant was not impermissibly stale. Lastly, we reject Darrington’s claim that the affiant omitted details in reckless disregard for the truth. A sworn affidavit in support of a search warrant enjoys a presumption of validity. While an affidavit may be attacked by allegations the affidavit contained intentional falsehoods or reckless disregard for the truth, ‘[a]llegations of negligence or innocent mistake are insufficient. The burden is on the defendant to establish by a preponderance of the evidence that the affiant knowingly or recklessly omitted from the affidavit material information which, if included, would have vitiated probable cause. In analyzing the claim, we must decide whether the omitted information was so probative that it would have negated probable cause had it been included. If not, the omission is immaterial and the prior standards apply. Darrington has not shown that the affiant deliberately acted with reckless disregard for the truth when he omitted the challenged information from the affidavit. At most the affiant was negligent for failing to include information about the informant’s reliability and basis of knowledge. Such negligence or innocent mistake is not sufficient to overcome the presumed validity of the sworn affidavit. Even had the affiant been more thorough, inclusion of the omitted information would not have changed the magistrate’s finding of probable cause. Because Darrington has not demonstrated the district court’s denial of his suppression motion was error, plain or otherwise, relief is not required and this claim is denied.

2. Darrington claims the district court erred in denying his motion to disclose the identity of the unnamed informant. The district court overruled his motion prior to trial as well as his renewed request the first day of trial. We review the district court’s ruling for an abuse of discretion. 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. Under Oklahoma law, the government has the privilege to refuse disclosure of the identity of informants. Darrington argues the following exception to the privilege is relevant to his case: If the informant is also a material witness to the criminal conduct with which the defendant is charged, or was a participant in said criminal conduct conjointly with the defendant, or is shown to be able to give testimony relevant to a material issue in the case. The record does not support Darrington’s claim. When the confidential informant’s only connection with the case is in providing probable cause for the search warrant, as in the instant case, then disclosure is not necessary. Darrington has failed to show that the unnamed informant had any connection to his case beyond what was described in the search warrant affidavit. Nor do we find any evidence that the informant’s testimony would have been material to Darrington’s defense. Accordingly, we find the district court did not abuse its discretion in denying Darrington’s motion to disclose the informant’s identity. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. Darrington’s tendered supplemental brief is REJECTED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-415
2. Okla. Stat. tit. 68 § 450.8
3. Okla. Stat. tit. 63 § 2-405
4. Rule 3.4(F)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)
5. Marshall v. State, 2010 OK CR 8, ¶ 47, 232 P.3d 467, 478
6. Smith v. State, 2018 OK CR 4, ¶ 8, 419 P.3d 257, 260
7. Bramlett v. State, 2018 OK CR 19, ¶ 14, 422 P.3d 788, 793
8. Graves v. State, 1994 OK CR 23, ¶ 5, 878 P.2d 1075, 1076-77
9. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)
10. Pickens v. State, 2001 OK CR 3, ¶ 9, 19 P.3d 866, 874
11. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978)
12. Morgan v. State, 1987 OK CR 139, ¶ 6, 738 P.2d 1373, 1374
13. Brown v. State, 1977 OK CR 201, ¶ 5, 565 P.2d 697, 699
14. Okla. Stat. tit. 12 § 2510

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (Supp. 2007) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 68 § 450.8 (2001) - Possession of Controlled Drugs Without Tax Stamp Affixed
• Okla. Stat. tit. 63 § 2-405 (Supp. 2004) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 12 § 2510 (2011) - Disclosure of Informants

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 14, 422 P.3d 788, 793
• Marshall v. State, 2010 OK CR 8, I 47, 232 P.3d 467, 478
• Smith v. State, 2018 OK CR 4, I 8, 419 P.3d 257, 260
• Gregg v. State, 1992 OK CR 82, I 15, 844 P.2d 867, 874
• Pickens v. State, 2001 OK CR 3, I 9, 19 P.3d 866, 874
• Morgan v. State, 1987 OK CR 139, I 6, 738 P.2d 1373, 1374
• State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
• Brown v. State, 1977 OK CR 201, I 5, 565 P.2d 697, 699
• Graves v. State, 1994 OK CR 23, I 5, 878 P.2d 1075, 1076-77