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Crowell v. State1/21/2000
ACCELERATED DOCKET ORDER
Appellant, represented by counsel, was convicted in a non-jury trial of Possession of Marijuana in Case No. CM-97-373 in the District Court of Bryan County. Appellant was sentenced to one (1) year, suspended. From this Judgment and Sentence, Appellant appeals.
On appeal Appellant raised five propositions of error, quoted below:
1. Prouse v. Delaware, Brown v. Texas and Michigan v. Sitz, read together establish at least 2 requirements for motorist roadblock-check point to be a reasonable seizure within the Fourth Amendment, which are that (1) there be advance warning, notice, publicity to the public re the block, (2) the conduct of the block be per plan or guideline formulated by other than officers in field conducting block;
2. The presence and indiscriminate use, without particularized evidence, of a drug dog at ostensibly a license-equipment check point, is highly indicative that block is subterfuge-pretext seizure to attempt to detect drugs;
3. The court erred in excluding Appellant's exhibit, Defendant's exhibit 1;
4. Appellant's in custody statement was inadmissible for failure of record to show/or state to establish that it was preceded by proper advice and waiver of Miranda rights or that it was not product of custodial interrogation and further record shows that even if Appellant otherwise properly Mirandized, taint of illegality of Sitz/drug dog violations had not been attenuated due to contemporaneous time of violations and statement; and
5. Failure to account for whereabouts of and establish who had possession of and chain of custody of evidence for nine months rendered it inadmissible per insufficient predicate and thus State failed to prove each required element, specifically drug element, beyond a reasonable doubt.
Pursuant to Rule 11.2(A)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998) this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument November 4, 1999, pursuant to Rule 11.2(F). At the conclusion of oral argument, the matter was taken under advisement.
We affirm Appellant's conviction. On July 18, 1997, at approximately 7:00 p.m. Appellant was stopped at a safety checkpoint in Durant, Oklahoma. Appellant's DUI affidavit, serving as his temporary license to drive, was checked, as was his insurance verification. While State Trooper Mark Riffe was conducting the safety check, Officer Sonny Stewart of the Durant Police Department, certified to handle drug-sniffing canines for the State of Oklahoma, had his drug-sniffing dog Gay Bo sniff the outside of Appellant's vehicle. The dog alerted on Appellant's truck. At the same time, Trooper Riffe requested that Appellant pull his vehicle over to the side of the road and step out of it so he could be issued a warning citation for failure to wear a seat belt. While the warning was being issued, Officer Stewart had the dog sniff the vehicle again, and upon the dog alerting a second time, the vehicle was searched. A baggy of marijuana was found in the vehicle, along with one rolled marijuana cigarette. Appellant was arrested and subsequently convicted of possession of marijuana.
We do not find, as Appellant claims, that the roadblock/checkpoint set up by the Durant Police Department, in this situation, was pretextual so as to make the search and seizure unconstitutional. There is no requirement, despite Appellant's claims to the contrary, that the State must notify the public of the roadblock, and conduct the roadblock according to a specified, written plan, in
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