State Of Oklahoma v Nicholas Lowell Turner

S-2018-1026

Filed: Jul. 11, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Nicholas Lowell Turner appealed his conviction for multiple drug-related charges including possessing drugs with intent to distribute and having a firearm while committing a felony. The court reversed the suppression of evidence found in Turner's home, which originally happened because the trial judge believed the search warrant lacked enough probable cause. The court ruled that the officers acted in good faith when they executed the warrant, meaning the evidence could still be used, and they sent the case back for further action. Judge Kuehn disagreed with the majority opinion.

Decision

The ruling of the District Court granting the motion to suppress is REVERSED and the case is REMANDED to the District Court for further proceedings consistent with this opinion. The State's Application for Oral Argument is DENIED. 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 probable cause to support the search warrant?
• Did the trial court abuse its discretion by determining that the good faith exception to the exclusionary rule does not apply?

Findings

• the trial court erred by determining that the search warrant was not supported by probable cause
• the trial court erred by determining that the good faith exception does not apply

S-2018-1026

Jul. 11, 2019

State Of Oklahoma

Appellant

v

Nicholas Lowell Turner

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: On April 4, 2018, Appellee Nicholas Lowell Turner was charged with two counts of Unlawful Possession of a Controlled Drug with Intent to Distribute (Counts I and II) (63 O.S.2011, § 2-401(B)(2)); Possession of a Firearm While in Commission of a Felony (Count III) (21 O.S.2011, § 1287); Acquire Proceeds from Drug Activity (Count IV) (63 O.S.2011, § 503.1(A)); Possession of a Controlled Drug Without Tax Stamp Affixed (Count V) (68 O.S.2011, § 450.8); and Unlawful Possession of Drug Paraphernalia (Count VI) (63 O.S.2011, § 2-405(B)), in the District Court of Tulsa County, Case No. CF-2018-1235.

On June 18, 2018, the Appellee filed Defendant’s Motion to Suppress Evidence Obtained from Search Warrant and to Dismiss Case arguing the “affidavit failed to allege probable cause as required by constitution, statute, and case law.” On June 25, 2018, the State filed a response and on July 2, 2018, Appellee filed a reply to the State’s response.

On July 17, 2018, a hearing was held before the Honorable Deborah Ludi Leitch, Special Judge. After hearing arguments, Judge Leitch denied the motion to suppress finding that the affidavit for the search warrant was deficient, but that the search warrant itself survived under the good faith exception to the exclusionary rule.

The Appellee subsequently waived his rights to a Preliminary Hearing and was bound over for District Court Arraignment before the Honorable James Caputo, District Judge. Appellee re-urged his Motion to Suppress before Judge Caputo. After a hearing held on September 25 and 27, 2018, Judge Caputo sustained the Motion to Suppress, finding that the good faith exception to the exclusionary rule did not apply. The State announced its intent to appeal pursuant to 22 O.S.2011, § 1053(5).

The State now raises the following propositions of error:
I. The trial court abused its discretion by determining that the search warrant was not supported by probable cause.
II. Even if the search warrant was not supported by probable cause, the trial court abused its discretion by determining that the good faith exception does not apply.

After thorough consideration of these propositions of error and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find the ruling of the District Court granting the motion to suppress should be reversed and the case remanded to the District Court for further proceedings consistent with this opinion.

On March 9, 2018, Officer Hoey of the Tulsa Police Department arrested Juan Antonio Gomez for several drug offenses. At the time of his arrest, Gomez was in possession of one and a half pounds of marijuana, a 9mm Glock firearm, and $1,750.00 in cash. After being read his Miranda rights, Gomez said the Appellee (Nicholas Turner) had been his primary supplier for over a year. Gomez said that while he had never been to Appellee’s home, he knew he lived in Broken Arrow and drove a silver Infiniti with black rims. Gomez also provided officers with Appellee’s phone number.

Officers found a Nicholas Lowell Turner registered to 2408 S. Chestnut Avenue in Broken Arrow. Driving by the residence, officers observed a silver Infiniti with black rims parked in the driveway. A check of the car tag showed it was registered to Nicholas Turner of 2408 S. Chestnut Avenue in Broken Arrow. The address was confirmed by the Tulsa Police Department’s crime analyst who also conducted a property search through the Tulsa County Assessor’s Office. This search showed the home at 2408 S. Chestnut Avenue was registered to James L. and Dana L. Turner, who were determined to be Appellee’s parents. No other addresses were found to be registered to Appellee or his parents.

On the basis of the above information, Officer Hoey submitted an affidavit for search warrant to Special Judge Terry Bitting, who found sufficient probable cause to issue a search warrant for 2408 S. Chestnut Avenue. The search warrant was executed on March 17, 2018 at approximately 6:10 p.m. The Appellee’s parents answered the officers’ knock and said that Appellee was on his way to the house to surrender. Upon his arrival, the Appellee was taken into custody, read his Miranda rights, and served with the search warrant. The Appellee waived his rights and told officers in part that he had been a drug dealer for over a year and only sold large quantities, as he was an upper level dealer.

Officers searched the residence and discovered almost eight (8) pounds of marijuana in various packaging; thirteen (13) firearms; $12,038.00 in cash; and other paraphernalia. The State now challenges the District Court’s suppression of this evidence under 22 O.S.2011, § 1053(5). Section 1053(5) provides that the State may appeal “[u]pon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice.” We find that the State’s appeal is proper and our review is in the best interests of justice.

In appeals brought to this Court pursuant to § 1053, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. State v. Bass, 2013 OK CR 7, 10, 300 P.3d 1193, 1196; Johnson v. State, 2013 OK CR 12, 8, 308 P.3d 1053, 1055. 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, 5, 298 P.3d 1192, 1194.

The State’s appeal raises two questions – whether the trial court abused its discretion in determining that the search warrant was not supported by probable cause, and even if the search warrant was not supported by sufficient probable cause, whether the trial court abused its discretion by determining that the good faith exception to the exclusionary rule does not apply.

In State v. Haliburton, 2018 OK CR 28, 429 P.3d 997 this Court was faced with similar issues – whether the warrant was based on probable cause and whether the good faith exception applied. This Court assumed for purposes of the discussion that the trial court did not abuse its discretion in finding that the affidavit lacked sufficient probable cause, and turned its attention to determining whether the good faith exception applied. 2018 OK CR 28, 13, 429 P.3d at 1001.

The Court noted that in State v. Sittingdown, 2010 OK CR 22, 17, 240 P.3d 714 this Court adopted the good faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also State v. Thomas, 2014 OK CR 12, 11, 334 P.3d 941, 945. In reviewing Leon, this Court recognized that the Supreme Court has held that the exclusionary rule should not act to bar law enforcement activities that are objectively reasonable. Haliburton, 2018 OK CR 28, 16, 429 P.3d at 1001.

When a search warrant affidavit does not contain probable cause but the subsequently issued warrant is facially valid, it will be an unusual case where the good faith of the officers executing the warrant does not allow the admission of the evidence seized. Id., at 16, 429 P.3d at 1001. This Court stated, “[t]rial courts reviewing such situations must first determine whether the search warrant was supported by an affidavit containing sufficient probable cause.” Id., at II 17, 429 P.3d at 1001. “If probable cause is present then the officer’s good faith is not an issue. In situations where a reviewing court determines that probable cause is lacking, it must then determine if the supporting affidavit was more than a ‘bare bones’ affidavit.” Id. “If ‘no reasonably well trained police officer could have believed that there existed probable cause to search’ then it is a ‘bare bones’ affidavit and the exclusionary rule should bar the evidence seized.” Id.

This Court noted that in cases such as Leon, where “the supporting affidavit is something more than a ‘bare bones’ affidavit but is, or might be, less than probable cause, trial courts must turn to the holding in Leon to consider the officers’ good faith.” Id. “In these situations, it is the rare and unusual case where the ‘good faith exception to the exclusionary rule will not allow the evidence to be admitted.” Id., at 18, 429 P.3d at 1001.

After reviewing the three situations set out in Leon in which the good faith exception could not be applied, this Court found the trial court did not properly apply the Leon holding to the facts of the case. This Court said that if the trial court had properly applied the Leon holding, it would have found that the deputies acted in an objectively reasonable manner in executing the search warrant and that based on the good faith exception the evidence should not have been suppressed. Id., at 20, 429 P.3d at 1002.

Similarly, we find the trial court in the present case did not properly apply the pertinent legal standard. The affidavit and search warrant were based upon information provided by a named informant and investigation conducted by police officers experienced in numerous investigations involving the distribution of illegal drugs. There is nothing in the record to indicate the issuing magistrate was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth nor was there any indication that the issuing magistrate wholly abandoned her judicial role.

The affidavit was lacking in details pertaining to the observation of illegal drug activity at the house. However, there was a sufficient nexus established between the place to be searched and the Appellee’s criminal activity so that the officers executing the search warrant could objectively and reasonably rely on the magistrate’s legal determination that probable cause existed to search the house at 2408 S. Chestnut Avenue for illegal drugs. See United States v. Chambers, 882 F.3d 1305 (10th Cir. 2018). The Appellee has failed to establish that the warrant was so facially deficient that the officers could not reasonably presume it to be valid. The trial court’s finding that the good faith exception to the exclusionary rule does not apply is an erroneous conclusion clearly against the logic and effect of the facts presented.

The Appellee’s reliance on State v. Thomas, 2014 OK CR 12, 334 P.3d 941 is misplaced as the search warrant in that case was based upon the results of an illegal search of the defendant’s cell phone. This Court held that as the initial search of the defendant’s cell phone was unlawful, the good faith exception did not apply.

In the case before us, the affidavit and search warrant were not based on the results of an illegal search. While the affidavit in this case lacked detail, it is distinguishable from a “bare bones” affidavit requiring application of the exclusionary rule. The affidavit and search warrant, signed and issued by the magistrate after a finding of probable cause, contained sufficient indicia of reliability that the executing officers could reasonably and objectively rely upon its validity when serving it.

Accordingly, we hold the district court erred as a matter of law in granting the motion to suppress.

DECISION

The ruling of the District Court granting the motion to suppress is REVERSED and the case is REMANDED to the District Court for further proceedings consistent with this opinion. The State’s Application for Oral Argument is DENIED. 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.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401(B)(2)
2. Okla. Stat. tit. 21 § 1287
3. Okla. Stat. tit. 63 § 503.1(A)
4. Okla. Stat. tit. 68 § 450.8
5. Okla. Stat. tit. 63 § 2-405(B)
6. Okla. Stat. tit. 22 § 1053(5)
7. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
8. State v. Bass, 2013 OK CR 7, I 10, 300 P.3d 1193, 1196
9. Johnson v. State, 2013 OK CR 12, I 8, 308 P.3d 1053, 1055
10. State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
11. State v. Haliburton, 2018 OK CR 28, 429 P.3d 997
12. State v. Sittingdown, 2010 OK CR 22, I 17, 240 P.3d 714
13. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)
14. State v. Thomas, 2014 OK CR 12, I 11, 334 P.3d 941, 945
15. United States v. Chambers, 882 F.3d 1305 (10th Cir. 2018)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(B)(2) - Unlawful Possession of a Controlled Drug with Intent to Distribute
• Okla. Stat. tit. 21 § 1287 - Possession of a Firearm While in Commission of a Felony
• Okla. Stat. tit. 63 § 503.1(A) - Acquire Proceeds from Drug Activity
• Okla. Stat. tit. 68 § 450.8 - Possession of a Controlled Drug Without Tax Stamp Affixed
• Okla. Stat. tit. 63 § 2-405(B) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 22 § 1053(5) - Appeal from Pretrial Order Suppressing Evidence

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:

• Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
• State v. Bass, 2013 OK CR 7, I 10, 300 P.3d 1193, 1196
• Johnson v. State, 2013 OK CR 12, I 8, 308 P.3d 1053, 1055
• State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
• State v. Haliburton, 2018 OK CR 28, 429 P.3d 997
• State v. Sittingdown, 2010 OK CR 22, I 17, 240 P.3d 714
• State v. Thomas, 2014 OK CR 12, I 11, 334 P.3d 941, 945
• United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)
• United States v. Chambers, 882 F.3d 1305 (10th Cir. 2018)