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Pts & Ath. Motion to Quash Arrest

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Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:10 am

POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’s FOURTH AMENDMENT MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE

Cases
BRANTLEY v. STATE, 1976 OK CR 82, ¶6, 548 P.2d 675 (1976). 25
CASTELLANO v. STATE, 1978 OK CR 107, ¶6, 585 P.2d 361(1978) 19
COFFIA v. STATE, 2008 OK CR 24, ¶4, 191 P.3d 594(2008) 23
CORONADO v. STATE, 2003 OK CR 24, at ¶4, 79 P.3d 311 25
Graham v. State, 1977 OK CR 1, ¶¶ 13-14, 560 P.2d 200, 203. 15
GRAHAM v. STATE, 1977 OK CR 1, ¶14, 560 P.2d 200. (1977) 23
HENRY v. STATE, 1972 OK CR 60, ¶8, 494 P.2d 661 (1972) 18
Meadows v. State, 1982 OK CR 193, at ¶8, 655 P.2d 556 15
Overall v. State ex rel. Dept. of Public Safety, 1995 OK CIV APP 107 at ¶22, 910 P.2d 1087 21
Overall v. State ex rel. Dept. of Public Safety, 1995 OK CIV APP 107, ¶24,  910 P.2d 1087 19
PHIPPS v. STATE, 1992 OK CR 32, ¶9, 841 P.2d 591 (1992) 23
SHAW v. CITY OF OKLAHOMA CITY, 2016 OK CIV APP 55, ¶22, 380 P.3d 894 (2016) 19
Skelly v. State, 1994 OK CR 55, ¶ 11-13, 880 P.2d 401, 405 (1994) 23
Sowell v. State, 1980 OK CR 98, ¶ 3, 6, 20 P.2d 429, 430. (1980) 17
STATE v. CROWLEY, 2009 OK CR 22, ¶5, 215 P.3d 99 (2009) 18
STATE v. FEEKEN, 016 OK CR 6,at ¶6, 371 P.3d 1124 (2016) 17
STATE v. STUART, 1993 OK CR 29, ¶16, 855 P.2d 1070 (1993) 25
TOMLIN v. STATE, 1994 OK CR 14, ¶35, 869 P.2d 334(1994) 25
UNITED STATES v. SAWYER, 2004 OK CR 22, ¶ 11, 92 P.3d 707 (2004) 17, 22
UNITED STATES v. SAWYER, 2004 OK CR 22, ¶19, 92 P.3d 707 (2004) 23
Statutes
21 O.S. § - 535 - Arresting Person Under Pretense Authority 20
21 O.S. § 21-99a (2014) Authority of peace officers 16
21 O.S. § 264 - Holding Oneself Out as Deputy Sheriff, Peace Officer, etc. 20
21 O.S. § 540A - Eluding Peace Officer 27
22 O.S. § 202 - Authority of Private Person to Arrest Another 19
47 O.S. § 6-112(A) 18

Table of Figures
Google Earth© computer generated screenshot of Michael O’Conner’s “north driveway.” (Generated on 1/21/2012)

Table of Contents
INTRODUCTION 1
The World According to Michael O’Conner 4
PART I…………………………………………………………………………………………………………………………….
LEGAL CLAIMS 5
The Initial Encounter
Proposition A 6
"Detective OConner" was without any legal authority to act as a peace officer when he initially encountered me legally parked upon the public road easement……………..

Proposition B

At the time during our initial encounter that O'Conner attempted to detain me and demand that I produce a driver's License, I had the right to resist his illegal intent: as a private citizen O'Conner was without investigatory power to detain me against my will, whether or not O'Conner was acting under color of law.

PART II

The Custodial Arrest and Warrantless Search and Seizure
 
Proposition C
 
After activating his emergency lights and siren in his patrol car and forcing me to submit to police authority under color of law, even if O'Conner could lawfully arrest me at that time, because he used the color of law as a means to force me to submit to a warrantless search of my person and my wallet after such arrest, the evidence against me is the "fruit of the poisonous tree' and must be suppressed.

Proposition D

O’Conner’s initial custodial arrest of myself is based upon nothing except evidence found incident to the warrantless illegal arrest.

Proposition E
 
O'Conner, although he happened to pursue me in his City of Ada patrol car and activated it's emergency lights and siren, even if I did try to elude his pursuit, when he was merely acting under the color of law, was without lawful means to charge me with attempting to elude a peace officer, especially when he attempts to pass it off as an arrest by a private citizen.

CONCLUSION, PART 1

The World according to Michael O’Conner II

CONCLUSION PART 2
 
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:11 am

INTRODUCTION
 
The case at hand involves two encounters with an off-duty City of Ada "Detective OConner" who while in plain clothes and while driving an unmarked City of Ada patrol car at all times acted under the color of law that he was an authorized police officer to enforce certain Town of Byng Municipal Ordinances, as well as lodge the two felony counts against me to which this Motion is addressed. In our initial encounter O'Conner initiated contact with me as I was parked parallel to Oakwood Lane in Byng, Oklahoma, on the east side of the road facing Broadway Avenue to the north, parked upon a culvert that O'Conner claims as his "north driveway", even if the only thing visible is an undisturbed pasture.
 
Acting as a private citizen who questioned me as if I was trespassing upon his private property, and to which questions I answered truthfully and honestly, O'Conner was not satisfied after berating me for parking my vehicle on “his property” and then proceeded to get out of his car in a threatening manner with a new claim that he was a police officer.
 
Any nut can pretend to be a police officer in order to allow him to get close enough to physically reach their victim, and now O'Conner had suddenly transformed himself from an angry and indignant property owner into a "police officer", even if the only thing that identified himself as a police officer at that time was his own say so.
 
That is the initial encounter. The primary question that must be answered regarding this initial encounter is:
 
1. May an off-duty peace officer outside of his territorial jurisdiction, where he has seen no offense and is without probable cause that a felony had been or was being committed, make an investigatory detention against my will and demand that I produce my Driver's License, all while acting under the color of law?
a. If the answer to the above question is no, then did I have a right under the law to resist O'Conner's illegal arrest of myself for the purpose of procuring my driver's license?
 
O'Conner then claims that after he demanded that I produce my Driver's License I put my vehicle in drive and 'spun" my tires, ran the stop sign at Broadway Ave, and took off at a high rate of speed in an attempt to elude his pursuit. When I became aware that I was being pursued by a patrol car with lights and the siren activated I immediately pulled over.
 
The questions that must be applied to this second encounter with O'Conner are as follows:
 
2. May O'Conner chase me down in a City of Ada patrol car with lights activated and siren blasting, and after I had complied and had submitted myself to O'Conner's police authority, and had surrendered my California ID and admitting that I had no valid license, then, still acting under color of law, take my wallet from my back pocket and conduct a warrantless search of it, after I had been placed under custodial arrest for "No Driver's License?"

3. May O'Conner now claim that he arrested me under his authority as a private citizen to make a citizen's arrest even if he did use his City of Ada patrol car to chase me down and demand my License, and even if he did sign all Uniform Oklahoma Citation Complaints that he issued against me for both of the herein two (2) felony counts, and two (2) other unverified and legally deficient tickets charging me with violating unspecified Town of Byng Municipal Ordinances, and even stating his Badge Number 293 upon the face of the instruments, and then file a probable cause affidavit against me in this case, not as a police officer, but as a private citizen?
a. May O'Conner, as a private citizen, demand to see my driver's license while acting under color of law, and then make a citizen's arrest, and then, use his pretense of being an authorized police officer in order that I submit to a pat down search of my person and subsequent warrantless search of my wallet?
b. May O'Conner use his City of Ada patrol car to chase me down while acting as a peace officer when he was without legal authority to act as a police officer, and then make a citizen's arrest against me for "Endangering Others While attempting to Elude a Peace Officer."
 
If some or all of the above legal questions must be answered as no, then the proper course of action for the Court is to enter an Order that the arrests upon which the herein criminal charges are founded be quashed, that all evidence discovered incidental to the arrests be suppressed, and that this criminal case and all criminal counts herein be dismissed with prejudice.
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:25 am

THE WORLD ACCORDING TO MICHAEL O’CONNER

Although my version of events differ from the complainant’s sworn statement, any disputes I have with him as to the actual facts are neither here nor there, as a careful review of his probable cause affidavit is all that is necessary for the purposes of this application.

O'Conner states:

“On 10-05-2016 I, Detective OConner saw a gold-colored Chevy Tahoe parked, facing north, in the north driveway of my residence, 120 Oakwood, Byng, Pontotoc County Oklahoma…


Analysis:

At first glance one might suppose that I was on O’Conner’s property, and that I was probably blocking his driveway and perhaps even trespassing, but that’s just the way that Michael O’Conner slants his tale so as to create a perception not based upon reality.

That I was facing north in what he calls the north driveway of his residence at 120 Oakwood is just a convoluted way to say that I was parked beside of Oakwood facing north. If O’Conner would like to call a metal culvert beside of the road that acts as drainage under an access point to his pasture a driveway, that’s certainly his prerogative, but to infer that I was on his property is a deception.
Though it is certainly true that technically under the law O’Conner is presumed to own the land on his side of the road out to the center line of Oakwood, it is also true that the Town of Byng has the right of easement for a municipal road at that location and that I was legally parked upon that right of way.

[quote“… as I was getting home from work. I was in my City of Ada police vehicle.”][/quote]

Therefore it must be true:

1.At the time of the encounter O’Conner was an off duty police detective dressed in plain clothes driving an unmarked Ada patrol car who encountered me as I was legally parked beside Oakwood facing north.

“I stopped next to the Tahoe and asked the male in the driver's seat what he was doing.”


2.O’Conner then pulled up beside me on Oakwood and without any given reasonable cause to believe that I was in the commission of an offense made a significant intrusion upon my privacy by subjecting me to an interrogation.

3.O’Conner at that time necessarily had to be facing south on Oakwood.

“He said he was waiting on Michael Gray coming from Konowa. I asked him his name and he said William.I told him I was a police officer and asked him his last name. William said his last name was West.”


4.I cooperated at all times up to this point in my encounter with O’Conner, both before and after he supposedly informed me that he was a peace officer.

“I then asked West for his drivers license and started to get out of my car. As I got out of my car West put his vehicle in drive and took off spinning his tires. West failed to stop at the stop sign on Oakwood at Broadway.”


5.Without anything to identify O’Conner as a peace officer other than his own claim he then attempted to detain me against my will for the purpose that he might conduct an investigatory detention of me, not for the purpose of establishing my identification, but, by his own words, to see if I had a driver’s license.

6.I had specific and articulable reason to believe that O’Conner intended to accost me in some form or fashion when he exited his vehicle, even if it was for the purpose of detaining me against my will.


7.Because O’Conner was facing south while parked in the northbound lane of Oakwood then, if he witnessed me run the stop sign on Oakwood at Broadway he had to be facing north while outside his vehicle.

“West went east on Broadway at a high rate of speed, failing to stop at the stop signs on Main and Broadway.”

“I initiated my emergency lights and siren and pursued West. West continued traveling east on Broadway, which turned into County Road 1480, at a high rate of speed passing cars in no passing zones with oncoming traffic.”


Because O’Conner witnessed me fail to stop at Main and Broadway after I travelled east from Oakwood at a high rate of speed, then O’Conner himself had to have also been in high speed pursuit of me at that time as well, especially when one takes into account that he would have been required to jump back into his vehicle and make a 180 degree turn on Oakwood just to be behind me at point.

Furthermore, common sense dictates that it was only after O’Conner had pursued me without his lights and siren activated that it was only after I began passing cars that then got stuck between me and him that he then activated them, since he would then be required to pass other traffic in no passing lanes as well.

At any rate, there is nothing in O’Conner’s statement to indicate any change in my driving behavior at the time that he did activate his lights and siren to indicate that I was aware I was being chased by an official police vehicle until the time that I did become aware of the lights and siren at which point I immediately pulled off the roadway and came to a stop.

8.After O’Conner had been a high speed pursuit of me on Broadway for almost a mile, where I had a considerable head start, he only activated his lights and siren after he saw me run the stop signs at Main and Broadway.

“West finally stopped his vehicle in a driveway south of 8861 County Road 3590, Ada, Pontotoc County, Oklahoma. West got out of the vehicle and I placed him under arrest.”


9.After I pulled to the side of the road and submitted to O’Conner’s authority in making the stop I was placed under arrest.

10. O’Conner neglected to inform me at the time of my custodial arrest just exactly what offense I was being arrested for.

11. Of the four (4) criminal offenses that he alleged against me in his OKLAHOMA UNIFORM CITATION COMPLAINTS the charge of Endangering Others While Attempting to Elude a Peace Officer (Citation for the town of Byng, # 1153) is the only possible charge he could have arrested me for at that time.

“During the pat-down search…”


12.O’Conner then, while acting under color of law, subjected me to a non-consensual pat-down search.

“…I found a silver-colored vial with a screw on lid in the front right pants pocket of West.”


As to be expected at this point O’Conner continues to slant the facts so as to prejudice the court against me by describing a common empty metal pill canister as a “silver colored vial”, a term sure to evoke images of drug paraphernalia in the reader’s mind. In his second (2nd) Town of Byng Municipal Citation # 1152 O’Conner, acting as a peace officer badge number 293 accused me of possession of drug paraphernalia.

“I asked Mr. West what it was and he replied" I don't know. "In West right back pants pocket was a wallet with a California ID in it with West's information and photo on it. Also in the wallet was a small purple colored zip lock type baggie with a chrystalline substance in it. West said he did not know what it was. The substance was field-tested using a Nartec, Inc. Methamphetamine test and it showed positive for Methamphetamine.”


13.O’Conner, at this point, apparently not being satisfied with the fruits of his previous unlawful seizure of myself and body search, conducted a further non-consensual search of my wallet. Then, he used the fruits of that search to arrest me for “possession of CDS” again under the authority of the Town of Byng, Oklahoma in the municipal citation numbered as 1154, again subscribing his signature to it as if he were a peace officer, and ascribing his Badge Number as 293.

14.O’Conner issued against me a third (3rd) Town of Byng Municipal Citation numbered as 1153 for “Attempting to Elude a Peace Officer.”

15.O’Conner at all times during the above events act under the color of law under the authority of the Town of Byng, Oklahoma.
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:33 am

LEGAL CLAIMS

PART I
The Initial Encounter
 
Proposition A:
 
"Detective OConner" was without any legal authority to act as a peace officer when he initially encountered me legally parked upon the public road easement.

Once Michael O’Conner left the jurisdictional boundaries of the City of Ada where he was employed as a police detective he was acting outside his jurisdiction   and as such, outside the scope of his authority as a police officer. Graham v. State, 1977 OK CR 1, ¶¶ 13-14, 560 P.2d 200, 203.

"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, 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."


See UNITED STATES v. SAWYER, 2004 OK CR 22, ¶ 11, 92 P.3d 707 (2004)

I do need to point out here that while Sawyer here was held in 2004,and cites Title 11 extensively, 21 O.S. § 21-99a (2014) Authority of peace officerswas apparently enacted in 2014 and does admittedly provide greater authority for a peace officer outside of his territorial jurisdiction. However, the only provisions of the statute that might be argued as being relevant here is 21 O.S. § 21-99a(2) [a peace officer “may enforce the criminal laws of this state” throughout the territorial bounds of this state under the following circumstance:] “Upon the prior consent of the head of a state law enforcement agency, the sheriff or the chief of police in whose investigatory or territorial jurisdiction the exercise of the powers occurs;”

Given my verified statement of facts contained in my Motion to Quash Arrest and the state of O’Conner’s AFFIDAVIT against me, I have no reason to believe that he might not now be above stooping to a claim that he had the prior permission of the police chief for the Town of Byng, Oklahoma, whoever he might be.

To rebut such a claim I would point out that a careful scrutiny of the statute shows that even if “Detective OConner” did have prior consent of the proper Byng authority to act as a peace officer while off duty, then he only had the right to enforce state laws, not municipal ordinances. O’Conner seems to have used the pretext of arresting me for violating the Town of Byng’s municipal ordinance against “No Drivers License” as being the cause of my initial arrest, as shown by the Town of Byng Citation # 1151.

Aside from that, I am confident that even if Michael O’Conner had the prior permission to drive his unmarked patrol car home from work that the City of Ada will not now try to say that he had permission to chase a violator of a Town of Byng municipal ordinance in that vehicle, much less to do so while failing to activate his lights and siren! See 21 O.S. § 21-99a(B.)

B. While serving as peace officers of the State of Oklahoma and rendering assistance under the circumstances enumerated above, peace officers shall have the same powers and duties as though employed by and shall be deemed to be acting within the scope of authority of the law enforcement agency in whose or under whose investigatory or territorial jurisdiction they are serving. Salaries, insurance and other benefits shall not be the responsibility of a law enforcement agency that is not the employing agency for the officer.(Emphasis mine)


It simply may not now be argued that O’Conner, acting as a peace officer had any legal authority whatsoever to arrest me for a violation of any Town of Byng ordinance, and therefore his whole house of cards must fall: these criminal charges simply do not have a legal leg to stand on.

And I would be remiss if I did not point out here that any City of Ada Police Department Policy that would allow O’Conner to use his unmarked patrol car to engage in high speed pursuits of offender’s who violate other municipalities’ ordinances, and to do so without his lights and siren activated would be patently illegal, as to do so would imperil the City of Ada taxpayers to potential legal jeopardy for damages should O’Conner himself had caused damages to others while acting in such a reckless manner.

Granted, if O’Conner had been bona fide peace officer and not a private citizen acting under color of law during the encounter then he would certainly have been obligated to do a "courtesy check" for my benefit upon seeing me parked or stopped along the roadway. It may even be rightfully argued that once such an encounter occurs that the “officer” has a duty to make a license check of the driver to ensure that he is in compliance with traffic laws. See, for example, STATE v. FEEKEN, 016 OK CR 6,at ¶6, 371 P.3d 1124 (2016)

Even so, such an investigatory detention, no matter how slight, is still a significant intrusion. See Sowell v. State, 1980 OK CR 98, ¶ 3, 6, 20 P.2d 429, 430. (1980)largely a matter of degree because both involve a significant intrusion upon the privacy of the individual.”)

The key point to keep in mind here is that while every private citizen has the authority to investigate crimes and make a citizen's arrest when authorized by law, as a private citizen at the time of our encounter O'Conner had absolutely no investigatory power whatsoever so as to detain me against my will for any reason when he did not see me commit a public offense and he was without any reasonable cause to believe that I was guilty of a felony. He most certainly had no legal authority to demand to see my Driver's License as I was under absolutely no legal obligation to surrender it upon demand of another than a peace officer upon request after driving. See 47 O.S. § 6-112(A)

What needs to be understood is that there is a significant difference between the power to arrest and the power to investigate. See STATE v. CROWLEY, 2009 OK CR 22, ¶5, 215 P.3d 99 (2009). As a private citizen, O'Conner had no lawful authority to investigate whether or not I may have been operating a motor vehicle without a valid Operator's License outside his presence, or within his presence, for that matter, at least when that investigation demands that he detain me against my will so that he may order me to show him that license.

It is apparent that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." See HENRY v. STATE, 1972 OK CR 60, ¶8, 494 P.2d 661 (1972)
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:39 am

Proposition B
 
At the time during our initial encounter that O'Conner attempted to detain me and demand that I produce a driver's License, I had the right to resist his illegal intent: as a private citizen O'Conner was without investigatory power to detain me against my will, whether or not O'Conner was acting under color of law.

As a private person acting under color of law when he attempted to detain me against my will when there was no offense committed in his presence and O'Conner had no reasonable cause to believe that I was guilty of committing a felony, O'Conner was under the law attempting to make an arrest. Detaining someone against their will, no matter how slight the duration, is an arrest. See CASTELLANO v. STATE, 1978 OK CR 107, ¶6, 585 P.2d 361(1978)

A private person may only make a citizen's arrest another for a public offense committed in his presence, when another has committed a felony, though not in his presence, or when a felony has been committed and he has reasonable for believing the person arrested committed it. 22 O.S. § 202 - Authority of Private Person to Arrest Another

However, any peace officer or other person who attempts to detain another against their will without lawful authority is guilty of a misdemeanor. See 21 O.S. § 535 - Arresting Person Under Pretense Authority:

“Every public officer or person pretending to be a public officer, who under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements without due and legal process, is guilty of a misdemeanor.”(Emphasis mine)


“Due and legal process” is another name for probable cause. "Due and legal process" or probable cause to effect an arrest is not the same as the vested authority of the officer to make arrests. An officer may be duly authorized to make an arrest, but the arrest he makes is invalid if unsupported by probable cause. The authority vested in an officer to make an arrest does not automatically flow to the arrest itself and rehabilitate a tainted arrest. An officer acting as a duly authorized peace officer can carry out his duty in good faith by making a warrantless arrest, but unless there is probable cause to make that arrest, the arrest is invalid. See Overall v. State ex rel. Dept. of Public Safety, 1995 OK CIV APP 107, ¶24,  910 P.2d 1087 (1995)

The Supreme Court of the United States has repeatedly explained that probable cause to justify an arrest means:

“ facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.”


See MICHIGAN v. DEFILLIPPO, 443 U.S. 31 (1979).

[quote "[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers."][/quote]
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:47 am

The State might argue that if O’Conner had been an authorized police officer his initial attempt to detain me would not have been an illegal arrest, and therefore neither did his actions as a private citizen constitute an arrest. I would respond that O’Conner illegally intruded upon my privacy when he first began questioning me.  In U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)

“Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressiveinterference by enforcement officials with the privacy and personal security of individuals." As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.”


O’Conner himself certainly established that I was not free to disregard his questions and leave the scene, because when I attempted to exercise such right I was promptly chased down and arrested and searched against my will, and was never provided with any explanation as to why I was pulled over and arrested prior to being provided when I secured my release from jail with the four (4) citations he ticketed me with.

One might even hold that O'Conner is also guilty of violating 21 O.S. § 264 - Holding Oneself Out as Deputy Sheriff, Peace Officer, etc.

( " Any person who shall without due authority exercise or attempt to exercise the functions of or hold himself or herself out to any one as a deputy sheriff, marshal, police officer, constable or peace officer shall, upon conviction, be guilty of a misdemeanor…")(Emphasis mine.)


While O'Conner failed to produce any kind of verification that he was in fact a police officer, albeit one without legal authority to act as other than any other private citizen, and while he was in an unmarked police cruiser and wearing plain clothes, after enduring his hostile actions towards me while he was acting as the property owner, I had no reason not to fear for my safety when O'Conner acted menacingly towards me as he aggressively displayed an intent to affect my freedom of movement. He very well may have possibly been just a nut who wanted to injure me in one way or another because he perceived that I had wronged him in some way for parking adjacent to the roadway on or near his property.

However, even if I had known at such time that he actually was a police officer acting outside his lawful jurisdiction and therefore lacking any justification whatsoever to detain me and to demand that I produce a Driver's License, I still had a right by law to resist his unlawful action directed against me and to elude his illegal arrest, if possible. See 22 O.S. §§ 31, 32 Lawful Resistance and Resistance by One About to be Injured. The most feasible resistance by me at that point to O’Conner’s illegal arrest was to attempt an escape from his presence.

And see also: 76 O.S. 1991 § 6

“ Besides the personal rights mentioned or recognized under law, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm. . . ."


False arrest is defined by Black's Law Dictionary 540 (5th ed. 1979) as:

[quote][“unlawful restraint of an individual's personal liberty or freedom of locomotion. . . . An arrest without proper legal authority is a false arrest and because an arrest restrains the liberty of a person it is also false imprisonment. The gist of the tort is protection of the personal interest in freedom from restraint of movement. Neither ill will nor malice are elements of the tort, but if these elements are shown, punitive damages may be awarded in addition to compensatory or nominal damages.”/quote]
Overall v. State ex rel. Dept. of Public Safety, 1995 OK CIV APP 107 at ¶22, 910 P.2d 1087
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:54 am

PART II
The Custodial Arrest and Warrantless Search and Seizure
 
Proposition C
 
After activating his emergency lights and siren in his patrol car and forcing me to submit to police authority under color of law, even if O'Conner could lawfully arrest me at that time, because he used the color of law as a means to force me to submit to a warrantless search of my person and my wallet after such arrest, the evidence against me is the "fruit of the poisonous tree' and must be suppressed.

The Oklahoma Courts are clear about when a peace officer outside his lawful jurisdiction may, or may not, make an arrest as a private person. It is generally held that such a peace officer when deprived of his lawful authority to exercise his police power still is clothed in his legal authority to make citizen's arrests as a private person provided that such an arrest is occasioned by law.
 
"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, 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.

See UNITED STATES v. SAWYER, 2004 OK CR 22, ¶ 11, 92 P.3d 707 (2004)

However the Court has mostly held that when a peace officer is acting outside his lawful jurisdiction that he may not make a valid arrest as a private citizen while acting under color of law, that is, by acting in such a manner so as to cause one to wrongly believe that the officer is in fact acting under a lawful authority as a peace officer so that they are induced to submit to an unlawful arrest or a warrantless search. As examples see GRAHAM v. STATE, 1977 OK CR 1, ¶14, 560 P.2d 200. (1977)

However, it is true that the Oklahoma Court of Criminal Appeals has recognized a public safety exception to the general rule that an officer acting outside of his or her jurisdiction as a private citizen may not act under color of law. See STATE v. KIEFFER-RODEN, 2009 OK CR 18, ¶8, 208 P.3d 471(2009) The Court has further clarified that ruling in STATE v. KEEFE, 2017 OK CR 3 at¶13 (2017)

1.The urgency of the situation in that no other course of action promises the relief needed.
2.The need to protect the safety of the public, the suspect or the officer from immediate danger.
3.The primary motivation of the officer involved is to protect the safety of the public, suspect or the officer from immediate danger; and
4.Whether the officer's use of the "color of law" was minimal and limited to the means necessary to secure the welfare of himself or others.

On that note, the Court provides a few citations to aid in interpreting the fourth (4th) factor given:
“See Underwood, 2011 OK CR 12, ¶ 24, 252 P.3d at 236 (officer's general query was "aimed at saving the girl's life--not calculated to build a case against Appellant")Jackson v. State, 2006 OK CR 45, ¶¶ 21--22, 146 P.3d 1149, 1158-59 (police limited their questions to the location of the child with the primary purpose of the questions being to rescue the child, not to investigate a crime); Coffey, 2004 OK CR 30, ¶¶ 5--7, 99 P.3d at 251-52 (officers had reasonable grounds to believe there was an immediate need to protect others and entry into the house was brief to secure the safety of potential occupants).”


It is certainly true that O’Conner may now make the claim that my driving behavior immediately prior to his activation of the lights and siren amounted to “gross negligence” creating an urgent situation endangering the safety of myself and other citizens on the roadway at that time, and that he acted under a reasonable belief that he could no longer wait for a Town of Byng police officer or a Pontotoc County Deputy to arrive and intervene. However, unfortunate to such a proposition is the fact that he acted under color of law both prior to and subsequent to his activation of his patrol car’s lights and siren. First, when he falsely identified himself to me as a police officer and demanded that I produce my license when he had not even witnessed me driving, and then after he effected the traffic stop and then searched me and issued to me the four (4) citations in which he falsely identified himself as an authorized police officer by stating his Badge Number upon the face of said citations.

Furthermore, according to Keefe, Supra, at ¶14, O’Conner should have, after making the stop and holding me in custody, even if he did have sufficient reason to believe I might be concealing a weapon or weapons, after making the pat down search he would have been required to cease his search after discovering I had no weapons, and any investigation by him to discover if I did or did not have a valid DL should have been left up to whichever peace officer(s) responded to the scene and took custody of me under the authority of his citizen’s arrest.

Aside from that, if O’Conner had not started his high speed pursuit of me after I attempted to avoid his illegal arrest, without the use of his lights or siren, no less, I would not have been frightened to the extent that I found it necessary to violate various traffic laws in order that I might escape his illegal acts directed against me.
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 3:59 am

Proposition D

O’Conner’s initial custodial arrest of myself is based upon nothing except evidence found incident to the warrantless illegal arrest.

It’s somewhat ironic that when O’Conner finally effected his arrest of me “by a private person” yet still acting under color of law failed to arrest me for any actual offense committed by me in his presence, but instead used his pretense of lawful authority to conduct a warrantless “pat down” search of my person and my wallet and used the results of that search upon finding that I was not carrying a driver’s license as the pretext for my arrest.

For the purpose of this discussion I was actually arrested at the time I pulled over and stopped my vehicle and submitted myself to O’Conner by surrendering to him. See Skelly v. State, 1994 OK CR 55, ¶ 11-13, 880 P.2d 401, 405 (1994)

Instead of arresting me for the alleged offense of running the stop sign at Oakwood and Broadway, or for failing to yield to the four way stop at Broadway and Main, or any of the other traffic violations that he alleges that he witnessed me violating, “Detective OConner” acted as a police officer to conduct a pat down search of my person and then my wallet, and upon discovering my California ID card at that time made what he describes as a custodial arrest of me for “No Driver’s License” in the OKLAHOMA UNIFORM CITATION COMPLAINT numbered as 1151 for the Town of Byng, Oklahoma.

Combined with his sworn statement given by him in his Affidavit that the purpose of his initial attempt to detain me was to find out if I had a Driver’s License, and the fact that he made his custodial arrest of me for not having a valid DL, then it must be true that he actually arrested me during our initial encounter when he attempted to detain me and order that I provide my Driver’s License to him, and that the attempted arrest of myself at such time was based upon nothing but mere suspicion that were not founded upon any articulable and specific facts known by O’Conner at such time.

It seems as if his intent to charge me with the felony crime of endangering others while attempting to elude a peace officer precluded him from arresting me for any traffic offense associated with my attempted escape of his illegal detention, therefore he had to make his initial arrest of me upon nothing more than evidence of me committing an offense that he was only able to obtain by pretending under color of law that he had the lawful authority to conduct a warrantless search of my wallet. In the OKLAHOMA UNIFORM CITATION COMPLAINT numbered as 1152 for the Town of Byng, Oklahoma O’Conner charged me with possession of drug paraphernalia for having an empty metal pill canister that Walmart sells for holding medication. (Incidentally, in his Affidavit O’Conner incorrectly describes the object as a “metal vial.” The two above citations alleged facts but failed to advise of any Town of Byng Municipal Ordinance that I had violated, even if they were prosecuted by the Town of Byng.

Only then, in the OKLAHOMA UNIFORM CITATION COMPLAINT numbered as 1153 for the Town of Byng, Oklahoma, did O’Conner charge me with the felony count of Endangering Others While attempting to Elude a Police Officer. It is interesting that in his Affidavit of Probable Cause for my Warrantless Arrest O’Conner provides no explanation as to what set of facts provided by him will ever justify him to make a citizen’s arrest of myself for my attempts to evade him and his unlawful exercise of police power against me and claim that I was attempting to elude a peace officer!

It is true that O’Conner has lodged one other felony complaint against me as Count I in this case, said charge originating in the OKLAHOMA UNIFORM CITATION COMPLAINT numbered as 1154 for the Town of Byng, Oklahoma for the alleged offense of Unlawful Possession of a Controlled Dangerous Substance.

But it is also a fact that the evidence against me in that accusation is evidence that is the fruit of an illegal arrest and must therefore be suppressed in this case. O’Conner may hardly make the claim that his search of my wallet after my arrest for having no License was justified as being incidental to the arrest. Even where the Courts have allowed the police to set up road blocks for the purpose of conducting license checks on those who pass through, they have also noted that such circumstance did not justify a search of the driver, occupants, or the vehicle. BRANTLEY v. STATE, 1976 OK CR 82, ¶6, 548 P.2d 675 (1976).

It is well settled that the fruits of an illegal arrest must be suppressed. See TOMLIN v. STATE, 1994 OK CR 14, ¶35, 869 P.2d 334(1994)

For that matter, as a private citizen, even if O’Conner had not been acting under color of law he still could not have legally searched my wallet so as to confiscate any illegal drugs from me, even if he did intend to turn them over to police authorities after he confiscated them. See STATE v. STUART, 1993 OK CR 29, ¶16, 855 P.2d 1070 (1993) (Peace officers outside their territorial jurisdiction acting as private citizens are not allowed to possess illegal drugs).

Furthermore, O’Conner justified the search as a “pat down search”, presumably looking for weapons, as permitted by a “Terry pat down search.” In the present case, O’Conner articulated no particular facts in his Affidavit from which he reasonably inferred that I was armed and dangerous.  Rather, the Affidavit indicates that O’Conner conducted a weapons search of me merely as a matter of course.  This is an overt violation of the Fourth Amendment’s protection from unreasonable searches. See CORONADO v. STATE, 2003 OK CR 24, at ¶4, 79 P.3d 311

“The scope of a "Terry pat-down" is and must be strictly limited to a search for offensive weapons. When in the course of a frisk the officer feels an object, he is not justified in seizing it unless it reasonably resembles an offensive weapon.(Citations Ommitted)
STATE v. RHODES, 1990 OK CR 8, at ¶6, 788 P.2d 1380
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 4:01 am

Proposition E
 
O'Conner, although he happened to pursue me in his City of Ada patrol car and activated it's emergency lights and siren, even if I did try to elude his pursuit, when he was merely acting under the color of law, was without lawful means to charge me with attempting to elude a peace officer, especially when he attempts to pass it off as an arrest by a private citizen.

It boggles the mind that a private citizen might serve as the complainant upon a charge of attempting to elude a peace officer. It is conceivable that a private citizen might apprehend a suspect for attempting to elude a peace officer and hold them for the authorities until he could be taken into their custody, but you can be sure that a bona fide peace officer acting under his lawful authority would subscribe his oath to the probable cause affidavit, not a private person making a citizen’s arrest while acting under color of law.

Where oh where will “Detective OConner” ever find a witness that saw me attempting to elude a peace officer, much less endangering others while attempting to do so? And then there is the problem of ascertaining just exactly who was the peace officer that I am accused of attempting to elude? As an off duty city of Ada police detective, he can hardly claim to be a bona fide peace officer at this point, even if he did happen to be in an official patrol car.

This is a serious problem for the prosecution because the statute specifically requires that a person must be attempting to elude a peace officer who is attempting to affect a traffic stop through the use of an official police vehicle. There simply is no provision under the law for a private person acting under color of law while using an official police car to make a stop to be considered as a peace officer for that particular statute. See 21 O.S. § 540A - Eluding Peace Officer

Furthermore, O’Conner sets out no facts in his probable cause affidavit to show that I endangered anyone while I attempted to evade his unlawful detention and unauthorized investigation of me. 21 O.S. § 540A(A.) and 21 O.S. § 540A(B.).


And lastly, as previously discussed in PART I of this application, after O’Conner had pursued me from Oakwood and Broadway to Main and Broadway in high speed chase before he activated his lights and siren, the State has no evidence that I did not immediately pull over and come to a stop as soon as I became aware that I was being chased by a police vehicle.

If the purpose of O’Conner’s initial warrantless arrest of me was for Endangering Others While Attempting to Elude a Police Officer is as he alleges, what was the purpose of his pursuit of me prior to him activating his lights and siren? Was it due only to the fact that I refused to play victim to his initial unlawful conduct when he attempted to break the law by violating the protections afforded me under 21 O.S. § 535 and 76 O.S. 1991 § 6?
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Re: Pts & Ath. Motion to Quash Arrest

Postby heyday » Wed Feb 08, 2017 4:04 am

CONCLUSION, PART 1
 
The World According to Michael O’Conner Continued….

“Based upon this information, the undersigned prays that this Honorable Court issue a finding fact that probable cause exists to believe that a crime has been committed and that there is probable cause to believe the defendant(s) above named committed the crime.”


After committing various misdemeanors and at least one (1) felony (as shown in Part II of this application) O’Conner prays to his god that this Court find probable cause to prosecute me and for the State of Oklahoma to therefore proceed to wreck my life and impose upon my peace and dignity as a man of peace by attempting to incarcerate me in prison for fourteen (14) years.

I pray to my God, the God Almighty, that the Court will see fit to abide by the Laws of god and the laws of Oklahoma and thereby quash my arrest by O’Conner, and to suppress the evidence that are the fruits of O’Conner’s unlawful search, and to Dismiss the herein contested criminal felony charges that he alleged against me.

CONCLUSION, PART 2

Once a warrantless arrest or search is challenged, the burden is on the prosecution to prove it was lawful. See GREENE v. STATE, 1973 OK CR 191, ¶11, 508 P.2d 1095(1973)

Because the state can rely upon no set of facts which might justify my warrantless arrest and search and seizure in Byng, Oklahoma, by Detective O’Conner of the Ada Police Department the Court should enter an Order upon the merits of my legal claims without the necessity of holding a hearing.

However, should the Court hold otherwise and schedule a hearing upon my Motion to Quash Arrest and Suppress Evidence, and thereupon enter an adverse ruling against me, I respectfully request the Court to thenceforth make a finding of facts and conclusion of law justifying same, and to make such findings a part of the Court Record.

Respectfully submitted this _______day of __________, 2017.
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