USA v. Sawyer

92 P.3d 707

2004 OK CR 22

UNITED STATES OF AMERICA, Plaintiff v. Mike Paul SAWYER, a.k.a. Motor Mike, Defendant.

No. CQ-2004-240.

Court of Criminal Appeals of Oklahoma.

June 8, 2004.

ORDER ANSWERING CERTIFIED QUESTION OF LAW

¶ 1 The Honorable Sven Erik Holmes, Chief Judge for the United States District Court for the Northern District of Oklahoma, has certified the following question pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001, § 1601-1611:

Whether police officers from Lawrence, Kansas, who identified themselves as police officers to the owner of a building located in Bartlesville, Oklahoma, but informed the owner prior to requesting consent to search that they were from Kansas and without authority to arrest him, could legally conduct such a search in Oklahoma, and whether the fruits of the subsequent search are admissible in evidence, considering that both Oklahoma and Kansas have statutory prohibitions against police officers acting in their official capacities outside their respective jurisdictions?¹

¶ 2 The following relevant facts were provided by the certifying court:

In August 2000, two police officers from Lawrence, Kansas (hereafter "Kansas officers"), investigating stolen motorcycles and motors, traveled to Bartlesville, Oklahoma, to interview Defendant. The Kansas officers notified the Bartlesville Police Department they would be coming in to Bartlesville as part of their investigation, but their travel to Oklahoma and investigation was not requested by the Bartlesville Police Department. When the Kansas officers arrived in Bartlesville, they stopped at the Bartlesville Police Department, informed the department they were in the city and the purpose of their visit. The Kansas officers then went to Defendant's place of employment. They were not accompanied by any member of the Bartlesville Police Department.

¶ 3 At Defendant's place of employment, the Kansas officers identified themselves as police officers to Defendant's company manager. Through the manager, the Kansas officers arranged to interview Defendant in a private office located at his place of employment.

¶ 4 Upon contact with Defendant, the officers identified themselves as Kansas police officers and told Defendant he was not under arrest because they were without authority to arrest him in Oklahoma. The Kansas officers wore street clothes with badges, handcuffs, and firearms on their belts. The Kansas officers read Defendant his Miranda² rights and interviewed Defendant for about one hour. Defendant provided the officers with both a written and verbal statement.

¶ 5 After Defendant provided his statement, the Kansas officers asked Defendant to take them to his motorcycle motor sales business in Bartlesville. Kansas officers followed Defendant, who drove in his personal vehicle, to the location of his business. At the shop, at the request of Kansas officers, Defendant unlocked the door and allowed them inside. Once inside, the Kansas officers asked Defendant to sign an official Consent to Search form from the Lawrence Kansas Police Department. Defendant signed the consent form. ¶ 6 The Kansas officers then searched Defendant's business. Towards the end of their search, after finding numbers on most of the engines, the Kansas officers contacted the Bartlesville Police Department and asked them to bring a camera to the business. Three Bartlesville police officers came to Defendant's business and took photographs. At the request of the Kansas officers and with Defendant's consent, the three Bartlesville police officers removed six engines from Defendant's shop; three had altered serial numbers and three were believed stolen.

¶ 7 The Kansas officers then obtained consent from Defendant to take records from his residence, and there they obtained additional records from Defendant's wife. Afterwards, Defendant was interviewed again by the Kansas officers at the Bartlesville Police Department.

¶ 8 Four days later, the Kansas officers notified the Bartlesville Police Department of the results of their investigation/examination of the serial numbers from the engines seized from Defendant's shop. The next day, Bartlesville police officers obtained a search warrant from a judge of the State of Oklahoma for another search of Defendant's shop. Bartlesville police officers executed that warrant and seized additional items which included seventeen motorcycle motors.

¶ 9 The United States District Court for the Northern District of Oklahoma found at all times the Lawrence Kansas police officers were acting under color of law.

AUTHORITY TO ANSWER

¶ 10 Oklahoma adopted the Uniform Certified Question of Law Act in July of 1973. 20 O.S.2001, § 1601. Pursuant to the Act, this Court

may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or the Court of Criminal Appeals, constitutional provision, or statute of this state.

20 O.S.2001, § 1602; see Canady v. Reynolds, 1994 OK CR 54, ¶ 8, 880 P.2d 391, 393. "This Court has the power to give the present state of the law as well as use the opportunity to create new precedents" when answering a certified question of law. Moore v. Gibson, 2001 OK CR 8, ¶ 6, 27 P.3d 483, 485; Canady, 1994 OK CR 54, ¶ 12, 880 P.2d at 395. In so doing, we may reformulate or reinterpret a question of law certified to this Court. Gibson, id.; Canady, id.

DISCUSSION

¶ 11 Generally, a police officer's authority cannot extend beyond his jurisdiction. Graham v. State, 1977 OK CR 1, ¶¶ 13-14, 560 P.2d 200, 203. Recognized exceptions to this general rule are (1) hot pursuit, (2) when one municipality has requested assistance pursuant to 11 O.S.2001, § 34-103, and (3) when an officer is serving an arrest warrant. Id., 1977 OK CR 1, ¶ 14, 560 at 203, 560 P.2d 200, citing United States v. Braggs, 189 F.2d 367 (10th Cir.1951) (hot pursuit); 11 O.S.2001, § 27-113 (service of arrest warrant "any place within this state"); 11 O.S.2001, § 34-103 (requesting assistance from another municipality). Otherwise, once outside the city limits of the municipality by which they are employed, the officer acts as a private citizen with no greater authority than that of a private citizen. Staller v. State, 1996 OK CR 48, ¶ 10, 932 P.2d 1136, 1139-1140; see also State v. Ramsey, 1993 OK CR 54, ¶ 10, 868 P.2d 709, 712; Phipps v. State, 1992 OK CR 32, ¶ 9, 841 P.2d 591, 593.

¶ 12 This Court's decision in Phipps is dispositive of the question certified.³ In Phipps, this Court held a police officer acting outside his jurisdiction may not conduct a consensual search if the consent is obtained while the officer is acting under color of law. Id.,1992 OK CR 32, ¶ 7,841 P.2d at 593. In Phipps, where the officer identified himself as a police officer and showed his badge before obtaining consent to search, we noted:

[t]here can be no doubt, however, that had a private citizen told appellant they suspected she was transporting marijuana and asked to look in her trunk, appellant would not have let them. Thus, it is clear that Officer Kinney was acting under color of law and the appellant believed that he had such authority when he asked to search appellant's vehicle. We therefore hold that the search of appellant's car while it was beyond the Tulsa city limits is invalid, and the seizure of the contraband from such search should have been suppressed.

Id., 1992 OK CR 32, ¶ 12, 841 P.2d at 593-594.

¶ 13 In this case, there is no question that the Kansas officers were outside their jurisdiction. Their actions were not authorized by any interlocal governmental agreement relating to law enforcement. Neither 11 O.S.2001, § 34-103 nor K.S.A. (2001) § 22-2401a mentions or contemplates extending a municipal police officer's jurisdiction from one state to another state.

¶ 14 Further, the District Court found the officers were "at all times relevant hereto... acting under color of law." While the Kansas officers told Defendant they were without authority to arrest him, after they mirandized Defendant and questioned him for over an hour, they asked for consent to search his business and asked him to sign an official Consent to Search form from the Lawrence Kansas police department. A private citizen, acting without official authority, who asks another to search his home or business would not ask such person to also sign a written consent form with a police division name on it. As we noted in Phipps, it is highly doubtful a person would sign such a consent under those circumstances. It is evident these officers were not acting as private citizens and, through their display of official authority, they obtained consent to search from Defendant. Such consent, under Phipps, was invalid.

¶ 15 "At some point near the end of the search," the Kansas officers contacted the Bartlesville police department because they needed a camera to photograph items discovered during their search. Again, upon request of the Kansas officers, Defendant consented in writing to allow six engines to be removed from his shop. A few days later, the Kansas officers notified the Bartlesville police officers of the "results of their examination of the serial numbers on the engines found" at Defendant's shop, and the Bartlesville officers used that information to obtain a search warrant.

¶ 16 Defendant's initial consent for the Kansas officers to search his business was invalid. Any evidence seen or obtained during that search could not be used to establish probable cause in the subsequent affidavit for a search warrant. State v. Stuart, 1993 OK CR 29, ¶ 19, 855 P.2d 1070, 1074; Phipps, 1992 OK CR 32, ¶ 12, 841 P.2d at 594; Dale v. State, 2002 OK CR 1, ¶ 10, 38 P.3d 910, 912 (fruits of search based upon involuntary consent would be suppressed). The evidence seized during the initial...