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State v. Strawn

Court of Criminal Appeals of Oklahoma

February 8, 2018

STATE OF OKLAHOMA, Appellant,
v.
KELLY STRAWN, Appellee.

          APPEARANCES AT HEARING CAROL ISKI FIRST ASSISTANT DISTRICT ATTY COUNSEL FOR THE STATE

          JAY K. RAMEY COUNSEL FOR DEFENDANT

          APPEARANCES ON APPEAL CAROL ISKI FIRST ASSISTANT DISTRICT ATTY COUNSEL FOR APPELLANT

          JAY K. RAMEY SOUTH DENVER AVENUE TULSA, COUNSEL FOR APPELLEE

          OPINION

          HUDSON, JUDGE

         ¶1 On February 25, 2016, Appellee Kelly Strawn, was charged with Count 1: Unlawful Possession of Controlled Drug With Intent to Distribute, in violation of 63 O.S.Supp.2012, § 2-401 (B)(2); and Count 2: Driving with a Cancelled, Suspended or Revoked License, in violation of 47 O.S.2011, § 6-303 (B), in the District Court of Okmulgee County, Case No. CF-2016-75. Strawn was bound over at preliminary hearing on the felony charge. Strawn thereafter filed a motion to suppress all narcotics evidence arising from the traffic stop of his vehicle. District court arraignment was held August 5, 2016. Strawn then filed supplemental authority with the district court in support of his motion to suppress. On October 7, 2016, a hearing was held on Strawn's motion to suppress. At the conclusion of this hearing, the Honorable Kenneth E. Adair, District Judge, granted the motion to suppress and, upon the State's oral notice of its intent to appeal, stayed further proceedings in the case.

         ¶2 Appellant, the State of Oklahoma, now appeals. We exercise jurisdiction pursuant to 22 O.S.2011, § 1053 (5). For the reasons discussed below, we reverse the district court's ruling and remand for further proceedings.

         BACKGROUND

         ¶3 Both the district court and the parties relied largely upon the transcript of the preliminary hearing testimony in litigating the motion to suppress below. What follows is a summary of testimony from Oklahoma Highway Patrol (OHP) Trooper Daren Koch, the sole witness presented at that hearing. Trooper Koch, a seventeen (17) year OHP veteran, described for the court his training and education in relation to narcotics interdiction and certified drug K-9 handling. Trooper Koch also discussed his drug dog and the certifications they hold as a team for drug detection. Trooper Koch then turned to the events in the present case.

         ¶4 On February 16, 2016, Trooper Koch initiated a stop of a truck driven by the defendant, Kelly Strawn, on Interstate 40 near Mile Marker 242 in Okmulgee County. Strawn was stopped for speeding, specifically, driving 73 miles per hour in a 70 mile-per-hour zone. Trooper Koch made contact with Strawn at the truck's driver-side window, informed him of the violation and asked for a driver's license. Trooper Koch then instructed Strawn to come back to the patrol unit so Trooper Koch could write him a warning. Trooper Koch noticed that Strawn's hand was shaking and that he had two large dogs inside his truck. Strawn complied. Once both men were seated in the front of the patrol unit, Trooper Koch started running Strawn's license and vehicle registration and began writing out the warning.

         ¶5 During his brief conversation with Strawn while sitting in the patrol unit, Strawn said he was from Northern California and was driving to Memphis to see a girl. Trooper Koch, based upon his training and experience as a narcotics interdiction officer, recognized Northern California as "a hotspot" for the origin of narcotics, particularly high-grade marijuana. When Trooper Koch inquired about Strawn's destination, Strawn paused before saying he was going to Memphis to see a girl. Trooper Koch "thought possibly this pause that he had in his speech was a sign of deception."

         ¶6 Strawn also repeatedly engaged in what Trooper Koch described as a "fake yawning[.]" Trooper Koch estimated that Strawn "fake yawn[ed]" at least six or seven times during the course of his contact with Strawn in the front of the patrol unit. Based on his training, Trooper Koch testified that he recognized Strawn's "fake yawning" as an indicator of nervousness. Trooper Koch is trained to pay attention to body language and, based upon his training and experience, he determined the fake yawns were "nervousness that was leaking from [Strawn's] body."

         ¶7 When Trooper Koch ran Strawn's driver's license, he discovered it was suspended in California and was not valid. Continuing the conversation, Trooper Koch asked Strawn what he did for a living. Strawn paused, then responded that he cut wood. Trooper Koch believed this was possibly another deceptive answer. In addition, Trooper Koch observed other signs of nervousness by Strawn. For example, Strawn's carotid artery was visible in his neck and Trooper Koch observed that it was "beating heavily, rapidly." Trooper Koch noticed too that Strawn, in addition to the yawning, was "making weird movements with his mouth." Trooper Koch testified that he also could see Strawn's heart beating through both his chest and shirt.

         ¶8 At this point, Trooper Koch thought Strawn "maybe... was tweaking. It looked like he was on meth." Trooper Koch recognized Strawn as being "extremely nervous." Strawn's behavior was well outside the norm of what he had observed in similar situations where he had written warnings to motorists whose only offense was speeding. At this point, Trooper Koch believed that he had reasonable suspicion that criminal activity was afoot. Trooper Koch asked Strawn about his license being suspended. ...


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