Terry v. State

334 P.3d 953

2014 OK CR 14

Patrick Joseph TERRY, Appellant

v.The STATE of Oklahoma, Appellee.

No. F–2013–607.

Court of Criminal Appeals of Oklahoma.

Sept. 18, 2014.

Keith McArtor, Attorney at Law, Tulsa, OK, attorney for defendant at trial.

Kenneth E. Wright, III, Assistant District Attorney, Miami, OK, Attorney for State at trial.

Mark P. Hoover, Norman, OK, attorney for appellant on appeal.

E. Scott Pruitt, Oklahoma Attorney General, Judy King, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

SUMMARY OPINION

A. JOHNSON, Judge.

¶ 1 Appellant Patrick Joseph Terry appeals his felony and misdemeanor convictions from the District Court of Ottawa County in Case No. CF–2012–242. The Honorable Robert G. Haney found Terry guilty in a non-jury trial of Manufacturing a Controlled Dangerous Substance (Methamphetamine) Within 2,000 Feet of a School (Count 1), in violation of 63 O.S.Supp.2012, § 2–401. Possession of a Controlled Dangerous Substance (Count 2), in violation of 63 O.S.2011, § 2–402(A). each after former conviction of two or more felonies, and Unlawful Possession of Drug Paraphernalia (Misdemeanor) (Count 3) in violation of 63 O.S.2011, § 2–405. Judge Haney sentenced Terry to thirty years imprisonment and a $10,000 fine on Count 1, six years imprisonment and a $1,000 fine on Count 2, and one year in the county jail and a $200 fine on Count 3. Judge Haney ordered the sentences to be served concurrently, without credit for time served. From this Judgment and Sentence, Terry appeals.

¶ 2 This case raises the single issue of whether the warrantless, investigative search of a parolee's home by law enforcement acting on an unidentified informant's tip violated his Fourth Amendment rights. We find reversal is not required and affirm the Judgment and Sentence of the District Court.

Background

¶ 3 In June 2012, the Ottawa County District Attorney's Office received a tip that Terry, a parolee, was manufacturing methamphetamine in his apartment.¹ As a condition of parole, Terry signed Rules and Conditions of Parole that stated in part: “I understand that at any time or place, I am subject to search. In addition, my vehicle and any property under my control is subject to search.” Acting pursuant to Terry's parole agreement, a district attorney investigator accompanied by several police officers conducted a warrantless search of his apartment three weeks after receipt of the tip. Officers found in Terry's bedroom marijuana, baggies, small plastic containers containing methamphetamine residue, syringes, pills, a scale, a glass lid with white powder residue, a razor blade, and a plastic bag containing leftover “mush” from cooking methamphetamine. In the kitchen, police found lighter fluid and drain opener, chemicals commonly used to manufacture methamphetamine.

¶ 4 A closet in Terry's apartment was secured by a combination padlock. Terry said the closet did not belong to him and claimed that the building's maintenance man used the closet to store tools. Police cut off the lock and found more lighter fluid, bottles containing two-layer liquids, a large container of lye, two jugs of muriatic acid, hoses, and several empty boxes of pseudoephedrine pills. In the refrigerator of an unoccupied apartment accessible from a door in Terry's kitchen,² police found a bag containing five reaction vessels recently used for manufacturing methamphetamine.³

¶ 5 Terry, who was outside when the officers arrived, objected to the search, but was reminded by the investigator that under the terms of his parole agreement his person and property were subject to search. Prior to trial, Terry filed a motion to suppress the evidence seized during the search of his apartment. The district court denied the motion, holding that Terry had consented to searches by all law enforcement officers under the parole agreement and that the tip that Terry was manufacturing methamphetamine in his apartment provided reasonable suspicion for the search. Terry objected to the admission of the seized evidence at trial, preserving this claim for appellate review.

Discussion

¶ 6 This Court reviews a trial court's decision denying a defendant's motion to suppress for an abuse of discretion. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141. We review the district court's legal conclusions de novo, and its factual findings for clear error, viewing the evidence in the light most favorable to the State. Coffia v. State, 2008 OK CR 24, ¶ 5, 191 P.3d 594, 596 ; Gomez, 2007 OK CR 33, ¶ 5, 168 P.3d at 1141–42 (citing Seabolt v. State, 2006 OK CR 50, ¶ 5, 152 P.3d 235, 237 ).

¶ 7 We resolve Terry's challenge to the admission of evidence seized from the padlocked closet inside his apartment and from the adjoining vacant apartment based on standing. To establish standing to contest the constitutionality of a search, a defendant must show he had a “legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) ; see also Anderson v. State, 1999 OK CR 44, ¶ 18, 992 P.2d 409, 417. When officers asked Terry the combination to the padlock, he denied any interest in the closet and claimed that the closet belonged to the building's maintenance man. Terry's statement provided proof that he had no legitimate expectation of privacy in the padlocked closet where officer's found evidence of methamphetamine manufacturing. See Champeau v. State, 1984 OK CR 54, ¶ 11, 678 P.2d 1192, 1195–1196 (burden is on defendant to prove a legitimate expectation of privacy in area searched). Nor did Terry have any legitimate expectation of privacy in the unoccupied adjoining apartment. At the time of the search, the apartment was vacant and there was no evidence Terry had any possessory interest in it. See id. at ¶ 11, 678 P.2d at 1196. (“Legitimation of expectations of privacy arise either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”). Because the evidence showed that Terry had no legitimate expectation of privacy in the vacant apartment and locked closet, his constitutional challenge to the admission of much of the evidence gathered in the complained-of search must fail.

¶ 8 Whether the search of Terry's apartment and the seizure of items in it violated the Fourth Amendment must be analyzed under substantive Fourth Amendment law. See State v. Marcum, 2014 OK CR 1, ¶ 7, 319 P.3d 681, 683. The United States Supreme Court has considered warrantless searches of a probationer or parolee in several cases. See, e.g., Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006) ; United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) ; Griffin v. Wisconsin, 483 U.S. 868, 875–76, 107 S.Ct. 3164, 3169–3170, 97 L.Ed.2d 709 (1987). In Griffin, one of the first cases considering the issue, probation officers searched a probationer's home without a warrant pursuant to an administrative regulation that allowed such searches where there was “reasonable grounds” to believe the probationer possessed contraband. Griffin, 483 U.S. at 870–71, 107 S.Ct. at 3167.

The Court upheld the search, reasoning that supervision of a probationer presents “ ‘special needs' beyond normal law enforcement.” Id. 483 U.S. at 873–74, 107 S.Ct. at 3168.

¶ 9 The Court expanded Griffin in Knights. In Knights, a law enforcement officer searched a probationer's home pursuant to the search condition of his probation coupled with reasonable suspicion that he was involved in criminal activity. Knights, 534 U.S. at 114, 122 S.Ct. at 589. The probationer's search condition required him to submit to searches “at any time, with or without a search warrant, warrant of arrest, or reasonable cause by any probation officer or law enforcement officer.” Id. Knights argued that the warrantless search was improper under Griffin because it was for investigatory rather than supervisory purposes. Id. 534 U.S. at 116–17, 122 S.Ct. at 590. The Court upheld the search, but abandoned the “special needs” rationale utilized in Griffin. Instead, the Court applied a traditional reasonableness inquiry, balancing “the degree to which [the search] intrudes on the individual's privacy” with “the degree to which it is needed for the promotion of legitimate governmental interests.” Id. 534 U.S. at 118–19, 122 S.Ct. at 591. Regarding the individual's privacy interest, the Court noted that “[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” Id. (internal quotation omitted) Important to the Court was the fact that Knights had been “unambiguously informed” of the search condition, further diminishing his expectation of privacy. Id. 534 U.S. at 119–20, 122 S.Ct. at 592. As to the government's interest, the Court emphasized the State's dual interest in integrating probationers back into the community and combating recidivism, crediting the “assumption” that probationers by virtue of their status are more likely to violate the law. Id. 534 U.S. at 120–21, 122 S.Ct. at 592. The Court balanced these interests and held that “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.” Id. 534 U.S. at 121, 122 S.Ct. at 593. Because the search in Knights was supported by reasonable suspicion, the Court did not consider whether a suspicionless search by police would be reasonable.

¶ 10 In Samson, the Court answered the question left open by Knights, namely “whether a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment...