APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY THE HONORABLE
H.M. WYATT, III, ASSOCIATE DISTRICT JUDGE
STRAIN ZACHARY COBELL COUNSEL FOR THE STATE
ANTINORO CHRISTOPHER GARNER ANTINORO LAW FIRM, PLC LARRY
STEIDLEY STEIDLEY LAW FIRM COUNSEL FOR DEFENDANT
MATTHEW J. BALLARD DISTRICT ATTORNEY ANTHONY J. EVANS COUNSEL
Appellee, Brittney Jo Wallace, was charged by Information in
the District Court of Rogers County, Case No. CF-2016-461,
with Enabling Child Abuse (Counts 1 & 2) (21 O.S.2011,
§ 843.5 (B)) and Child Neglect (Count 3) (21 O.S.2011,
§ 843.5 (C)). On April 16, 2017, the Honorable H.M.
Wyatt, III, Associate District Judge, held a pretrial hearing
concerning Appellee's motion to suppress and took the
matter under advisement. In a written order issued on
February 22, 2018, Judge Wyatt sustained Appellee's
motion and suppressed any and all evidence the State obtained
in the search and seizure of Appellee's cell phone.
The State appeals to this Court pursuant to 22 O.S.2011,
§ 1053 (6).
Section 1053 provides, in relevant part, that the State may
appeal, "[u]pon a pretrial order, decision or judgment
suppressing or excluding evidence in cases alleging violation
of any provisions of Section 13.1 of Title 21 of the Oklahoma
Statutes." Since both Enabling Child Abuse and Child
Neglect are offenses enumerated under Section 13.1, we find
that the State's appeal is proper.
The State raises the following propositions of error in
support of this appeal:
I. The seizure of Appellee's cellular phone was supported
by probable cause and thus a reasonable seizure.
II. The District Court's findings are in error and not
supported by the law or the facts in the record.
This Court reviews appeals pursuant to 22 O.S.2011, §
1053 to determine if the trial court abused its discretion.
State v. Gilchrist, 2017 OK CR 25, ¶ 12, 422
P.3d 182, 185; State v. Hooley, 2012 OK CR 3, ¶
4, 269 P.3d 949, 950; State v. Love, 1998 OK CR 32,
¶ 2, 960 P.2d 368, 369. This is the same standard
applied when we review a trial court's ruling on a motion
to suppress. Bramlett v. State, 2018 OK CR 19,
¶ 10, 422 P.3d 788, 793; State v. Keefe, 2017
OK CR 3, ¶ 7, 394 P.3d 1272, 1275. 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 or a clearly erroneous conclusion and
judgment, one that is clearly against the logic and effect of
the facts presented. Neloms v. State, 2012 OK CR 7,
¶ 35, 274 P.3d 161, 170.
In Proposition One, the State challenges the District
Court's suppression of the evidence recovered from
Appellee's cellular phone. The State argues that the
District Court erred when it determined that the initial
seizure and accessing of Appellee's phone on May 13, 2016
was contrary to her constitutional rights against illegal
search and seizure.
The United States Supreme Court has long held that the
"'touchstone of the Fourth Amendment is
reasonableness.'" Ohio v. Robinette, 519
U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996)
(quoting Florida v. Jimeno, 500 U.S. 248, 250, 111
S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991)).
"Reasonableness, in turn, is measured in objective terms
by examining the totality of the circumstances."
Reviewing the record, we find that the District Court abused
its discretion when it suppressed the evidence recovered from
Appellee's cell phone. The District Court's
determination that the initial seizure and accessing of the
phone was illegal is clearly erroneous and without proper
consideration of the facts and law pertaining to the matter.
Warrantless seizures of evidence are presumed unreasonable.
State v. Sittingdown, 2010 OK CR 22, ¶ 9, 240
P.3d 714, 716. Nonetheless, "society's interest in
the discovery and protection of incriminating evidence from
removal or destruction can supersede, at least for a limited
period, a person's possessory interest in property,
provided that there is probable cause to believe that that
property is associated with criminal activity."
Segura v. United States, 468 U.S. 796, 808, 104
S.Ct. 3380, 3387, 82 L.Ed.2d 599 (1984). Therefore, a
warrantless seizure is permissible when law enforcement has
probable cause to believe ...