State v. Velasquez

2024 OK CR 29

THE STATE OF OKLAHOMA, Appellant v. ELMER VELASQUEZ, Appellee

No. S-2023-921

Court of Criminal Appeals of Oklahoma

October 24, 2024

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE MICHELLE KEELY, DISTRICT JUDGE

STEPHEN A. KUNZWEILER DISTRICT ATTORNEY ELYSSA KOHLER MATT KEHOE ASST. DISTRICT ATTORNEYS TULSA COUNTY DISTRICT ATTORNEY'S OFFICE COUNSEL FOR THE STATE/APPELLANT

M.J DENMAN EDWARD LUTZ ATTORNEYS AT LAW COUNSEL FOR THE DEFENSE/APPEL LEE

OPINION

LUMPKIN, JUDGE

¶1 Appellee Elmer Velasquez was charged in the District Court of Tulsa County, Case No. CF-2023-2078, with Unlawful Possession of a Controlled Drug with Intent to Distribute (63 O.S.2021 § 2401) and Acquiring Proceeds from Drug Activity (63 O.S.2021, § 2-503.1). At the conclusion of the August 25, 2023, Preliminary Hearing, the defense's demurer was overruled and the Appellee was bound over to stand trial as charged.

¶2 On October 9, 2023, the Appellee filed a Motion to Quash Bindover arguing the magistrate abused her discretion in not granting relief stemming from the illegal execution of a standard search warrant. On October 24, 2023, the State filed a response to the motion. On November 8, 2023, a hearing was held before the Honorable Michelle Keely, District Judge. After hearing argument from both the State and the Appellee, the court sustained the Appellee's motion to quash the bindover and suppressed the search and all evidence seized pursuant to the search. The State announced its intent to appeal.

¶3 The State now appears before this Court pursuant to 22 O.S.2021, § 1053 (5), and argues the District Court abused its discretion when it applied the Exclusionary Rule as a remedy for a violation of 22 O.S.2021, § 1228. ^[1] The State argues the court's order suppressed the entirety of the evidence supporting the charged offenses.

¶4 Although the pleading at issue here is entitled a Motion to Quash Bindover, the court's ruling effectively excluded the entirety of the State's proof under 22 O.S.2021, § 1053 (5). As the District Court's order substantially impaired the State's ability to prosecute Appellee, we find that review is in the best interests of justice. State v. Morgan, 2019 OK CR 26, ¶ 5, 452 P.3d 434, 436; State v. Feeken, 2016 OK CR 6, ¶ 1 n.1, 371 P.3d 1124, 1125 n.1. ^[2]

¶5 In appeals brought to this Court pursuant to 22 O.S.2021, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion. State v. Burtrum, 2023 OK CR 7, ¶ 13, 530 P.3d 68, 72; State v. Ballenger, 2022 OK CR 11, ¶ 16, 514 P.3d 478, 482; State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194. 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. Burtrum, 2023 OK CR 7, ¶ 13, 530 P.3d at 72.

¶6 On June 15, 2023, officers of the Tulsa Police Department arrived at 9223 East 32nd Place to execute a previously obtained search warrant for the residence. Officers knocked on the front door, announced their presence, said they were there with a search warrant, and asked the occupants to come to the door. About the same time, officers noticed a security camera above the front door. Believing their service of the search warrant had been compromised, and before anyone inside the residence came to the door, the officers entered the residence. Once inside officers encountered a man on an inflatable mattress in the living room, and he was taken into custody. A man and a woman emerged from a back bedroom, and they were detained. No one else was found in the house.

¶7 A search of the house yielded passports and IDs for the Appellee in the middle bedroom. Also found in the residence was "[p]ackaging material" commonly seen in the packaging of narcotics; a baggie containing a white powdery substance, field tested as presumptively cocaine; "working" digital scales; a second baggie containing a white powdery substance; and over $8,000.00 in cash. Also found was information regarding rent and utilities showing the Appellee paid the same.

¶8 While the officers were at the residence, the Appellee drove up in a pickup and attempted -- unsuccessfully - to drive away. As the Appellee's appearance matched the photos on the identification documents in the residence, he was taken into custody.

¶9 The Appellee was bound over for trial on charges of Unlawful Possession of a Controlled Drug with Intent to Distribute and Acquiring Proceeds from Drug Activity. At a hearing on the Appellee's Motion to Quash Bindover, the district court granted the motion finding the officers' violated 22 O.S.2021, § 1228 and suppressed all the evidence seized by the officers.

¶10 Now on appeal, all parties concede that based on this record, the District Court did not abuse its discretion in concluding that 22 O.S.2021, § 1228 was violated. However, the State asserts that the court's remedy in excluding/suppressing all the evidence seized by the police was an abuse of discretion.

¶11 In deciding whether to exclude the seized evidence, the judge stated that she was initially persuaded by Hudson v. Michigan, 547 U.S. 586 (2006). However, after reading Brumfield v. State, 2007 OK CR 10, 155 P.3d 826 she found it more persuasive. In Brumfield, this Court was asked to determine whether the police officers' execution of a search warrant violated the Fourth Amendment's "knock and announce" requirement and 22 O.S. § 1228. Id., 2007 OK CR 10, ¶ 7, 155 P.3d at 830. This Court addressed the trial court's application of the Exclusionary Rule but ultimately decided that whether the search of the appellant's home violated Oklahoma law or whether such a violation necessarily requires that the evidence discovered in the subsequent search be suppressed was not appropriate for our appellate review. Id., 2007 OK CR 10, ¶ 16, 155 P.3d at 833-34. This Court found the issue waived for lack of timely objections. Id. Therefore, as the discussion regarding the Exclusionary Rule was not necessary to the holding in Brumfield, it is dicta and not precedential. See Brown v. State, 2018 OK CR 3, ¶ 47, 422 P.3d 155, 167 (..." dicta 'is an expression in a court's opinion which goes beyond the facts before the court and therefore is an individual view of the author and is not binding in subsequent cases'", citing Cohee v. State, 1997 OK CR 30, ¶ 4, 942 P.2d 211, 219 (Lane, J. concurring in results)). See also Brumfield, 2007 OK CR 10, 155 P.3d at 840 (Lumpkin, J. concur in part/dissent in part: "I dissent to the Court's reasoning, which includes lengthy dicta on proposition one concerning the "knock and announce" issue and a so-called "more expansive" interpretation of our state statutes and constitution than that available vis-à-vis the federal constitution's fourth amendment.").

¶12 Further, Brumfield is inconsistent with the latest rulings from the United States Supreme Court (see Hudson discussed below) on the application of the Exclusionary Rule. Therefore, as the discussion in Brumfield is dicta and does not accurately represent the current state of the law, the case and its predecessors ^[3] are overruled to the extent it is inconsistent with current law regarding application of the Exclusionary Rule.

¶13 In Hudson, the United States Supreme Court was presented with the question whether the application of the Exclusionary Rule was an appropriate remedy for a violation of the knock and announce requirement. 547 U.S. at 590. The Supreme Court recognized that "[t]he common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one." 547 U.S. at 589. The Court likewise acknowledged that in Wilson v. Arkansas, 514 U.S. 927, 929 (1995), the Court had concluded that the "knock-and-announce rule," for officers executing a search warrant, is constitutionally required under the Fourth Amendment. Id. However, the Court held that a violation of this knock-and-announce rule, by officers executing a search warrant, does not require that the evidence obtained in the subsequent search be suppressed. Id.

¶14 The Supreme Court began its analysis of the application of the Exclusionary Rule with the observation that "[s]uppression of evidence, however, has always been our last resort, not our first impulse." 547 U.S. at 591. "We have rejected '[i]ndiscriminate application' of the rule, and have held it to be applicable only 'where its remedial objectives are thought most efficaciously served,' -- that is, 'where its deterrence benefits outweigh its 'substantial social costs.'" Id. (internal citations omitted).

¶15 The Supreme Court looked at two distinct requirements for application of the Exclusionary Rule. First, it examined the requirement of causation, noting that "exclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence... but-for causality is only a necessary, not a sufficient, condition for suppression." 547 U.S. at 592. The Court determined that the constitutional violation of the illegal manner of entry in Hudson's case was not a but-for cause of obtaining the evidence as the officers would have executed a valid search warrant and discovered the evidence inside. ^[4] The Court reasoned "even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have 'never held that evidence is 'fruit of the poisonous tree' simply because 'it would not have come to light but for the illegal actions of the police.'" 547 U.S. at 592.

¶16 The Court went on to explain that "[u]ntil a valid warrant has issued, citizens are entitled to shield 'their persons, houses, papers, and effects,' U.S....