State Of Oklahoma v Terrence Tutson

S-2013-718

Filed: May 22, 2014

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Terrence Tutson appealed his conviction for possession of controlled substances and weapons. The court upheld the conviction and sentence. Judge Lumpkin dissented.

Decision

The Order of the District Court of Oklahoma County sustaining the Defendants' Motion to Suppress is AFFIRMED. The case is REMANDED for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there error in suppressing the State's evidence based on the lack of evidence of consent being clear and voluntary because the matter was raised by the Court sua sponte?
• Did the District Court err in suppressing evidence because no police misconduct occurred in this case to warrant proper application of the exclusionary rule?

Findings

• The court did not err in determining that the issue of consent was raised by the defendants.
• The court did not abuse its discretion in granting the motion to suppress.
• The Order of the District Court sustaining the Defendants' Motion to Suppress is AFFIRMED.

S-2013-718

May 22, 2014

State Of Oklahoma

Appellant

v

Terrence Tutson

Appellee

SUMMARY OPINION

MAY 22 2014

MICHAEL S. RICHIE SMITH, VICE PRESIDING JUDGE:

Terrence Tutson and Kindra Heartfield were charged with Possession of a Controlled Dangerous Substance (Marijuana) With the Intent to Distribute in violation of 63 O.S.2011, § 2-401 (Count I), Possession of an Offensive Weapon While Committing a Felony in violation of 21 O.S.2011, § 1287 (Count II), and Possession of a Controlled Dangerous Substance (Percocet) in violation of 63 O.S.2011 § 2-402 (Count III), in the District Court of Oklahoma County, Case No. CF-2011-6018.

On June 24, 2013, Tutson and Heartfield filed a Motion to Suppress and Dismiss. After a hearing, the Honorable Jerry D. Bass sustained the Motion to Suppress and stayed proceedings in the case. The State filed a timely Notice of Intent to Appeal under 22 O.S.2011, § 1053(5). The State raises two propositions of error in support of its petition:

1. The State references this subsection, which refers to pretrial decisions suppressing or excluding evidence, but where the case is not dismissed, in its Petition in Error. In its Notice of Intent to Appeal the State cites 22 O.S.2011, § 1053(3). That subsection, which provides for appeal upon a reserved question of law, is not an appropriate avenue for this State appeal.

I. The District Court erred in suppressing the State’s evidence based on the lack of evidence of consent being clear and voluntary because the matter was raised by the Court sua sponte.

II. The District Court erred in suppressing evidence because no police misconduct occurred in this case to warrant proper application of the exclusionary rule.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief. Our standard of review for appeals under § 1053(5) is abuse of discretion. State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. We will not disturb the ruling unless the trial court’s findings have no support in the record. State v. Kemp, 2009 OK CR 25, ¶ 12, 217 P.3d 629, 631.

We find in Proposition I that the trial court did not sua sponte raise the issue of consent. The record shows that Tutson and Heartfield raised the issue of consent in their motion to suppress, the State had notice that consent was an issue of concern to the trial court, the State was offered the opportunity to brief the issue, and the State was given an opportunity to argue the issue.

We find in Proposition II that the trial court did not abuse its discretion in granting the motion to suppress. Love, 1998 OK CR 32, ¶ 2, 960 P.2d at 369. Like the federal courts, this Court judges the voluntariness of consent to search from the totality of the circumstances. State v. Goins, 2004 OK CR 5, ¶ 19, 84 P.3d 767, 771. The State must provide clear and convincing proof that the consent was free and voluntary. State v. Kemp, 2009 OK CR 25, ¶ 17, 217 P.3d 629, 632; Goins, 2004 OK CR 5, ¶ 19, 84 P.3d at 771.

The trial court, on the record, delivered a comprehensive summary of the cases governing warrantless searches and consent to search. The trial court noted that courts are urged to consider and balance several factors in determining whether consent is voluntary and concluded that, as no evidence had been presented concerning those factors, nothing supported a finding that Heartfield’s consent was free and voluntary. This conclusion is supported by the record.

DECISION

The Order of the District Court of Oklahoma County sustaining the Defendants’ Motion to Suppress is AFFIRMED. The case is REMANDED for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 The State references this subsection, which refers to pretrial decisions suppressing or excluding evidence, but where the case is not dismissed, in its Petition in Error.
2. 2 The State incorrectly cites the standard of review that applies when we consider a trial court's denial of a defendant's motion to suppress.
3. 3 We reject the State's strong implication that suppression of evidence is not justified where an officer conducting a warrantless search has a reasonable suspicion of criminal activity.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Possession of a Controlled Dangerous Substance (Marijuana) With Intent to Distribute
• Okla. Stat. tit. 21 § 1287 - Possession of an Offensive Weapon While Committing a Felony
• Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Dangerous Substance (Percocet)
• Okla. Stat. tit. 22 § 1053 - Appeal from Pretrial Decisions

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:

• State v. Love, 1998 OK CR 32, II 2, 960 P.2d 368, 369.
• Neloms v. State, 2012 OK CR 7, II 35, 274 P.3d 161, 170.
• State v. Kemp, 2009 OK CR 25, I 12, 217 P.3d 629, 631.
• State v. Sayerwinnie, 2007 OK CR 11, I 6, 157 P.3d 137, 139.
• State v. Goins, 2004 OK CR 5, II 19, 84 P.3d 767, 771.
• State v. Kemp, 2009 OK CR 25, I 17, 217 P.3d 629, 632.
• State v. Baxter, 2010 OK CR 20, I 9, 238 P.3d 934, 937.
• Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).