Jones v. State9/5/1978
As Corrected September 13, 1978.
HERMAN EUGENE JONES, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.
An appeal from the District Court, Stephens County; Hegel Branch, Jr., Judge.
Benjamin J. Curtis, Poteau, for appellant.
Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., for appellee.
AFFIRMED.
OPINION AND DECISION
The opinion of the court was delivered by: BRETT, Judge.
This is an appeal from the District Court, Stephens County, Oklahoma, in Case No. CRF-77-224, for the offense of Feloniously Carrying a Firearm, After Former Conviction of a Felony. Appellant had previously been convicted in Stephens County District Court, Case No. CRF-72-76, for the offense of Burglary in the Second Degree. Appellant was tried by a jury, found guilty, and the jury fixed his punishment at three (3) years' confinement in the State penitentiary. From that judgment and sentence a timely appeal has been filed in this Court.
The facts briefly stated reveal that on September 30, 1977, appellant, who will hereinafter be referred to as the defendant as he appeared in the trial court, was apprehended on State Highway 7 near Duncan, Oklahoma, for the offense of Driving While Intoxicated. Defendant was alone in his vehicle when apprehended. Defendant removed himself from the vehicle and was taken to the rear of the vehicle near the Highway Patrol car. Insofar as no one accompanied the defendant, the arresting highway patrol officers conducted an inventory search of the vehicle, in accordance with Department of Public Safety policy, prior to releasing the vehicle to a wrecker to be impounded. During the inventory search, a .357 Magnum, Dan Wesson Arms, Model W2 pistol was found in the trunk of the vehicle. Defendant was transported to the Stephens County jail where he was given a breathalyzer test, after having been properly advised of his Miranda rights and his right to decline the breathalyzer test. The result of the test reflected that defendant's blood alcohol content was 0.06%. As a result of the test, the charge was initially filed as Driving While Impaired. Subsequently, the instant charge of Carrying a Firearm, After Former Conviction of a Felony, was filed, and this conviction resulted.
Defendant's first proposition of error asserts that the motion to suppress the evidence of the pistol should have been sustained at the preliminary hearing, which was renewed again at the time of trial and was denied at trial. In his brief, defendant asserts that the inventory search consisted of an illegal search and seizure in violation of defendant's rights under the Fourth Amendment to the United States Constitution, and violated his rights under Article II, § 30, of the Oklahoma Constitution, as well as the statutes of the State of Oklahoma prohibiting unlawful search and seizure. Defendant cites numerous United States Supreme Court decisions and decisions of this Court applicable to the law of search and seizure. However, all of defendant's citations are misplaced insofar as this Court has previously upheld the inventory of an impounded vehicle, under appropriate circumstances. This Court first upheld the inventory search in Bennett v. State, Okl.Cr., 507 P.2d 1252 (1973). The following year, this Court again upheld the inventory search in Fruit v. State, Okl.Cr., 528 P.2d 331 (1974). In 1976, the United States Supreme Court upheld the inventory search of a vehicle under appropriate circumstances in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L
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