Epker v. State

OPINION BRETT, Presiding Judge: Appellants, Gary Lee Epker, and Ralph David Swepston, were tried by jury for the crime of Knowingly Concealing Stolen Property in violation of 21 O.S.1981, § 1713 in Count II of Case No. CRF-83-313 and for the crime of Second Degree Burglary in violation of 21 O.S.1981, § 1435 in Count III of Case No. CRF-83-313 in the District Court of Muskogee County. Appellants were represented by separate counsel. The jury returned a verdict of not guilty for both appellants on Count III. The jury found appellant Epker guilty in Count II for Knowingly Concealing Stolen Property and set punishment at twenty (20) years’ imprisonment. The jury found appellant Swepston guilty of Knowingly Concealing Stolen Property, After Former Conviction of Two Felonies in violation of 21 O.S.1981, § 51(B) and set punishment at forty-five (45) years’ imprisonment. From these judgments and sentences, appellants appeal to this Court. Case No. F-84-285 for appellant Epker and Case No. F-84-286 for appellant Swep-ston are combined for purposes of this appeal due to the similarities in the assignments of error. On May 30, 1983, at about 2:00 a.m., Mr. L.K. Smith heard the loud exhaust pipes of a vehicle on the highway not far from his home. The noise persisted and he looked to see that a gold or brown Ranchero pickup truck was driving back and forth in front of Cotton’s Club, a business located next to Mr. Smith’s property. He became suspicious and watched as the vehicle pulled into the parking lot of Cotton’s Club and remained there for fifteen (15) minutes. Mr. Smith did not see anyone exit the vehicle, nor did he see anyone around the club. Mr. Smith’s suspicions grew when the vehicle exited the parking lot with its lights off. He called law enforcement officers [918] and reported that a gold or brown Ranche-ro-type pickup truck had left the parking lot with its lights off. The law enforcement dispatcher immediately called Muskogee County Deputy Sheriff Kenneth Morgan to relay the information to him. Deputy Morgan proceeded to the area and located a vehicle matching the description approximately one-quarter to one-half of a mile from the club in the direction reported. Deputy Morgan called for a backup officer and stopped the vehicle to investigate. The driver, appellant Swepston, emerged from the vehicle and produced identification pursuant to Deputy Morgan’s request. At this time, the officer noticed several cases of beer in the back of the vehicle. The officer then requested the passenger, appellant Epker, to get out, whereupon he noticed a gun sticking out from under the front of the driver’s side seat. He also discovered some packages of frozen catfish and frozen hot links in the back of the vehicle. The beer and frozen goods were allegedly stolen from Cotton’s Club. The gun was also allegedly stolen, though not from the club. Before trial, a hearing was held on a motion to suppress the beer, frozen goods and gun on the grounds that the investigatory stop and subsequent search and seizure were unconstitutional. The trial court denied the motion to suppress and appellants contend that the court erred in its decision. We agree. We have repeatedly held that a law enforcement officer may stop and question a person if there is reasonable suspicion to believe the person is wanted for past criminal conduct. Lunsford v. State, 652 P.2d 1243 (Okl.Cr.1982), citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), reh’g denied, 455 U.S. 1008, 102 S.Ct. 1648, 71 L.Ed.2d 877 (1982); King v. State, 667 P.2d 474 (Okl.Cr.1983); Jones v. State, 718 P.2d 712 (Okl.Cr.1986). We have further stated: The officer must be ‘able to point to specific and articulate facts which taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Lunsford, 652 P.2d at 1244. Deputy Morgan testified at the motion to suppress hearing that the only specific facts which he knew at the time of the investigatory stop was that a vehicle similar to the one appellants were driving had been seen leaving the parking lot of a club in an isolated area without its headlights on during the early morning hours. The officer did state that under those circumstances he was “suspicious” that something illegal such as a burglary might have occurred, however, he did not have a report of any criminal activity by any person around the club that night. (M.Tr. 22-23). He further testified that the circumstances leading to the investigatory stop “makes one wonder.” (M.Tr. 25). We are of the opinion that these facts alone with inferences rationally drawn from such are not a sufficient basis for a reasonable suspicion that appellants are wanted for past criminal conduct. We acknowledge that some of this Court’s past decisions have permitted officers to stop the vehicles of suspects in suspicious circumstances. However, these cases involved either of two situations. The first situation is that the vehicles which were stopped or the occupants of such vehicles matched descriptions of vehicles or persons which had recently left the scene of a crime. See, Swain v. State, 621 P.2d 1181 (Okl.Cr.1980); King v. State, 667 P.2d 474 (Okl.Cr.1983). The other situation occurs when an officer’s suspicions were reasonable in light of other circumstances. McAlpine v. State, 604 P.2d 1258 (Okl.Cr.1980) (suspicious activity observed occurred in an area that had experienced recent criminal activity of the kind suspected), Lumpkin v. State, 683 P.2d 985 (Okl.Cr.1984) (officer received several reports from neighbors concerning a body being put in the car’s trunk and other facts suggesting a murder had been committed and also witnessed the suspect speed away from home). In the case at bar, neither of these situations existed. Deputy Morgan admittedly was not looking for suspects in [919] a recent crime, nor did additional circumstances exist to warrant any reasonable suspicion. In Sowell v. State, 620 P.2d 429 (Okl.Cr.1980), this Court found that an investigatory stop similar to the one at bar violated the rights of a driver who was stopped and told to provide identification, and whose truck was subsequently searched merely because the officer thought he “looked suspicious.” We held that such conduct by the officer “without any specific basis or criteria for believing defendant was involved in criminal activity is not allowed under the guarantees of the Fourth Amendment.” Sowell, 620 P.2d at 431. The circumstances surrounding the case at bar are very similar to Sowell, and we again find that the Fourth Amendment rights of appellants were violated when Deputy Morgan stopped them, demanded identification, and searched the truck “without any specific basis or objective criteria for believing” that they were involved in criminal activity. Id. Likewise, the evidence gained was the result of an unreasonable search and should have been suppressed. Id. For the reasons stated above, the judgments and sentences appealed from are REVERSED. PARKS, J., specially concurs. BUSSEY, J., dissents.