State v. Nelson

356 P.3d 1113

2015 OK CR 10

STATE of Oklahoma, Appellant

v.Nathan Charles NELSON, Appellee.

No. S–2014–924.

Court of Criminal Appeals of Oklahoma.

Sept. 18, 2015.

Kevin Keller, Assistant District Attorney, Tulsa, OK, attorney for state at hearing and appeal.

Rob V. Henson, Henson Law Firm, PLLC, Tulsa, OK, attorney for defendant at hearing and appeal.

Kevin Keller, Assistant District Attorney, Tulsa, OK, attorney for appellant on appeal.

Rob V. Henson, Henson Law Firm, PLLC, Tulsa, OK, attorney for appellee on appeal.

OPINION

HUDSON, Judge.

¶ 1 Appellant, the State of Oklahoma, charged Appellee Nathan Charles Nelson in Tulsa County District Court, Case No. CM–2014–1815, with Obstructing an Officer (Count 1), in violation of 21 O.S.2011, § 540 ; Resisting an Officer (Count 2), in violation of 21 O.S.2011, § 268 ; Failure to Carry Insurance /Security Verification Form (Count 3), in violation of 47 O.S.Supp.2013, § 7–606 ; and Failure to Signal (Count 4), in violation of 47 O.S.2011, § 11–604. Appellee filed a Motion to Quash Illegal Arrest and Detention on September 23, 2014. A hearing on Appellee's motion was held on October 1, 2014, and October 22, 2014. At the conclusion of the hearing, Special Judge Bill Hiddle granted Appellee's motion and suppressed all evidence resulting from the traffic stop. Appellant, the State of Oklahoma, now appeals, raising the following issues:

I. THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS NO REASONABLE SUSPICION TO STOP THE VEHICLE.

II. THE TRIAL COURT ERRED WHEN IT EXTENDED THE LIMITED COMMON LAW RIGHT TO RESIST AN ILLEGAL ARREST TO ALLOW MOTORISTS TO WALK AWAY FROM A TRAFFIC STOP WHEN THE ORIGINAL BASIS FOR THE STOP WAS LATER RULED TO BE INVALID.

III. SINCE THE LIMITED RIGHT TO RESIST AN ILLEGAL ARREST IS NOT A CONSTITUTIONAL RIGHT, THE TRIAL COURT ERRED BY APPLYING THE EXCLUSIONARY REMEDY TO THE RESISTING ARREST CHARGE.

IV. APPELLEE'S DECISIONS TO OBSTRUCT THE TRAFFIC STOP AND THEN RESIST ARREST FOR OBSTRUCTION ARE SEPARATE CRIMINAL ACTS THAT DO NOT CONSTITUTE FRUIT OF THE POISONOUS TREE OF THE STOP AND THEREFORE THE EXCLUSIONARY RULE DOES NOT APPLY TO THE CHARGES OF OBSTRUCTION AND RESISTING ARREST.

V. THE COURT ERRED WHEN IT PLACED THE ONUS ON THE STATE TO REMEDY THE CONSEQUENCES OF APPELLEE'S FAILURE TO FILE A MOTION THAT COMPLIED WITH OKLAHOMA LAW AFTER THE TRIAL COURT DETERMINED THAT APPELLEE'S MOTION VIOLATED 12 O.S. RULE 4.

¶ 2 We exercise jurisdiction pursuant to 22 O.S.2011, § 1053(5). After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we REVERSE the district court's order in part for reasons discussed below.

BACKGROUND

¶ 3 The October 1, 2014 hearing on Appellee's motion to quash was very brief as Special Judge Hiddle essentially terminated the hearing shortly after Officer Turnbough took the stand. The State presented one witness, Officer Tyler Turnbough. Officer Turnbough conducted the traffic stop at issue herein on March 19, 2014, in Tulsa, Oklahoma. The testimony relating to the traffic stop was as follows:

Q. [By Prosecutor Keller] Why did you pull this car over?

A. [Turnbough] We observed the driver fail to signal his intentions as he was turning left into a parking lot.

Q. Okay. And at that point what happened next?

A. We conducted a traffic stop of the vehicle. The vehicle parked. The two occupants exited the vehicle and we made contact with the driver and the passenger.

Q. Do you see the driver in the courtroom today?

A. Yes.

Q. Would you please tell the Court where he's seated and what he's wearing?

A. He's in the gallery wearing a cream-colored polo.

MR. KELLER: May the record reflect the witness has identified the defendant?

THE COURT: The record will so reflect.

Q. (BY MR. KELLER) What happened next?

THE COURT: Do you care what happened next?

MR. HENSON [Defense Counsel]: I really don't care what happened after that, Your Honor.

THE COURT: I assume after that you arrested, or may I—

MR. HENSON: Yep. By all means, Your Honor, please.

THE COURT: That you found that the driver didn't have insurance and in one way or another you cited him for obstruction and resisting. Is that right?

THE WITNESS: Correct.

THE COURT: And took him to jail?

THE WITNESS: Correct.

THE COURT: All right. Anything else?

MR. KELLER: Umm, based on that ...

THE COURT: You got all—you got the rest of the day if you to [sic] want [to] take it, Mr. Keller. I'm not rushing you. I just—I have an inclining of where Mr. Henson is going, so ...

¶ 4 Thereafter, the prosecutor essentially made only two final inquiries of Officer Turnbough before passing him as a witness. The prosecutor questioned Officer Turnbough regarding “whether or not defendant could turn into this parking lot with reasonable safety”, to which the officer replied, “[y]es.” The prosecutor also inquired “[w]as there any traffic on that road”, to which the Officer Turnbough replied, “[o]nly his vehicle and us.”

¶ 5 The remaining events which form the basis for Appellee's arrest and misdemeanor charges can be gleaned from Officer Turnbough's probable cause affidavit. Following the stop, Appellee along with another occupant exited the vehicle. Appellee, upon request, was unable to provide proof of valid insurance. While another officer was in the process of citing Appellee for these traffic infractions, Appellee attempted to walk away from the traffic stop. Officer Turnbough ordered Appellee to stop, but Appellee continued to walk away from the scene. Officer Turnbough then positioned himself in Appellee's direct path and ordered Appellee to return to his car. Appellee replied, “I can go wherever I want, and you can't stop me.” As a result, Officer Turnbough physically restrained Appellee, having to push Appellee back toward the site of the stop. During this struggle, Appellee turned around to face Officer Turnbough. Turnbough directed Appellee to turn back around and put his hands behind his back. While Appellee initially complied, he immediately pulled away as Officer Turnbough was attempting to handcuff him. Another officer then stepped in to help facilitate the arrest. Appellee's attempt to avoid being restrained included pulling his hands away and attempting to lie on his hands.

¶ 6 During the brief hearing on October 1, 2014, Special Judge Hiddle made reference to a case he clearly found to be dispositive in the matter. While defense counsel apparently was aware of “the case”, the State was not. The State thus requested an opportunity to review and possibly respond to this case before the trial court ruled on Appellee's motion. The trial court granted the State's request and the hearing was concluded. It is clear from the October 22, 2014 hearing transcript that Johnson v. State, 2013 OK CR 12, 308 P.3d 1053 was “the case” the trial court was referencing.

¶ 7 The State filed its Response to Defendant's Motion to Quash Illegal Arrest and Detention on October 21, 2014. Notable within its response the State asserted that Officer Turnbough effectuated the initial traffic stop pursuant to a Tulsa municipal ordinance. In support of this contention, the State attached to its response a copy of Officer Turnbough's police report which provided the following:

We observed the driver of the listed Chevrolet Malibu make a left hand turn without signaling. This is in violation of city ordinance T37–625–A: “For a left turn, the driver's left hand and arm shall be held horizontally outside the vehicle to indicate turning intention, or a blinker light on the front and rear of the vehicle shall indicate the direction of turning.”

¶ 8 Appellee filed his Reply to the State's Response to the Defendant's Motion to Quash Illegal Arrest and Detention on October 22, 2014—the same day as the final hearing on this matter. Therein, citing to 12 O.S.2011, § 2803(8)(a), Appellee challenged the State's reference to and inclusion of Turnbough's police report in its response brief. Appellee further asserted the trial court was precluded from taking judicial notice of the municipal ordinance referred to in the State's response and Turnbough's police report. Referencing Goomda v. City of Okla. City, 1973 OK CR 81, ¶ 3, 506 P.2d 991, 992, Appellee averred the trial court was precluded from considering the proffered ordinance.

¶ 9 At the October 22nd hearing, Special Judge Hiddle sustained Appellee's motion to quash and suppressed all the evidence resulting from the illegal stop. In so ruling, Judge Hiddle stated for the record “I am stuck with the record that was presented at the hearing.” While no further evidence was presented at this hearing, brief argument was had regarding (1) the alleged municipal ordinance, and (2) Appellee's unspecific motion to quash. With regard to these two issues, Special Judge Hiddle made the following comments:

I'm stuck with the evidence that was presented at the hearing, regardless. I did grant more time for the State to present law, and so on, because the defense filed a general motion.

Judge Hiddle further stated:

I will state for the record, I can't try these cases for either one of you. It is true that—what you commented upon, Mr. Keller. I passed this case so that you would have every opportunity—and it is not a trick, I just can't be telling either party how to do their case. I passed it knowing—and we discussed this last time, that it was a surprise, the Defendant's argument. Therefore, because his motion was insufficient, I gave you [the State] plenty of time in order to ask for whatever relief you wanted.... I am stuck with the record I have.... The Court was perfectly willing to allow the State to reopen its case.

Thereafter, the State requested permission to reopen the case to which the court stated, “Not now; it's too late. And I just waited, and waited, and waited a moment ago for more arguments or more requests. I can't give hints.... And so I'm stuck with the record; and because I am stuck with the record, the defense prevailed.” Id.

¶ 10 Additional...