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STATE v. NELSON2015 OK CR 10Case Number: S-2014-924Decided: 09/18/2015STATE OF OKLAHOMA, Appellant, v. NATHAN CHARLES NELSON, Appellee.

Cite as: 2015 OK CR 10, __  __


OPINION
HUDSON, JUDGE:
¶1 Appellant, the State of Oklahoma, charged Appellee Nathan Charles Nelson 
in Tulsa County District Court, Case No. CM-2014-1815, with Obstructing an 
Officer (Count 1), in violation of 21 O.S.2011, § 540; Resisting an Officer 
(Count 2), in violation of 21 O.S.2011, § 268; Failure to Carry 
Insurance/Security Verification Form (Count 3), in violation of 47 O.S.Supp.2013, § 7-606; and Failure to Signal 
(Count 4), in violation of 47 O.S.2011, § 11-604. Appellee filed a 
Motion to Quash Illegal Arrest and Detention on September 23, 2014. A 
hearing on Appellee's motion was held on October 1, 2014, and October 22, 2014. 
At the conclusion of the hearing, Special Judge Bill Hiddle granted Appellee's 
motion and suppressed all evidence resulting from the traffic stop. Appellant, 
the State of Oklahoma, now appeals, raising the following issues:


I. THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS NO REASONABLE 
SUSPICION TO STOP THE VEHICLE. 
II. THE TRIAL COURT ERRED WHEN IT EXTENDED THE LIMITED COMMON LAW RIGHT TO 
RESIST AN ILLEGAL ARREST TO ALLOW MOTORISTS TO WALK AWAY FROM A TRAFFIC STOP 
WHEN THE ORIGINAL BASIS FOR THE STOP WAS LATER RULED TO BE INVALID. 
III. SINCE THE LIMITED RIGHT TO RESIST AN ILLEGAL ARREST IS NOT A 
CONSTITUTIONAL RIGHT, THE TRIAL COURT ERRED BY APPLYING THE EXCLUSIONARY REMEDY 
TO THE RESISTING ARREST CHARGE. 
IV. APPELLEE'S DECISIONS TO OBSTRUCT THE TRAFFIC STOP AND THEN RESIST ARREST 
FOR OBSTRUCTION ARE SEPARATE CRIMINAL ACTS THAT DO NOT CONSTITUTE FRUIT OF THE 
POISONOUS TREE OF THE STOP AND THEREFORE THE EXCLUSIONARY RULE DOES NOT APPLY TO 
THE CHARGES OF OBSTRUCTION AND RESISTING ARREST. 
V. THE COURT ERRED WHEN IT PLACED THE ONUS ON THE STATE TO REMEDY THE 
CONSEQUENCES OF APPELLEE'S FAILURE TO FILE A MOTION THAT COMPLIED WITH OKLAHOMA 
LAW AFTER THE TRIAL COURT DETERMINED THAT APPELLEE'S MOTION VIOLATED 12 O.S. 
RULE 4. 
¶2 We exercise jurisdiction pursuant to 22 O.S.2011, § 1053(5). After thorough 
consideration of the entire record before us on appeal, including the original 
record, transcripts, and briefs of the parties, we REVERSE the district 
court's order in part for reasons discussed below. 
BACKGROUND
¶3 The October 1, 2014 hearing on Appellee's motion to quash was very brief 
as Special Judge Hiddle essentially terminated the hearing shortly after Officer 
Turnbough took the stand. The State presented one witness, Officer Tyler 
Turnbough. Officer Turnbough conducted the traffic stop at issue herein on March 
19, 2014, in Tulsa, Oklahoma. The testimony relating to the traffic stop was as 
follows:


Q. [By Prosecutor Keller] Why did you pull this car over?
A. [Turnbough] We observed the driver fail to signal his intentions as he was 
turning left into a parking lot.
Q. Okay. And at that point what happened next?
A. We conducted a traffic stop of the vehicle. The vehicle parked. The two 
occupants exited the vehicle and we made contact with the driver and the 
passenger. 
Q. Do you see the driver in the courtroom today?
A. Yes.
Q. Would you please tell the Court where he's seated and what he's 
wearing?
A. He's in the gallery wearing a cream-colored polo.
MR. KELLER: May the record reflect the witness has identified the defendant? 

THE COURT: The record will so reflect.
Q. (BY MR. KELLER) What happened next?
THE COURT: Do you care what happened next?
MR. HENSON [Defense Counsel]: I really don't care what happened after that, 
Your Honor.
THE COURT: I assume after that you arrested, or may I - 
MR. HENSON: Yep. By all means, Your Honor, please.
THE COURT: That you found that the driver didn't have insurance and in one 
way or another you cited him for obstruction and resisting. Is that right?
THE WITNESS: Correct.
THE COURT: And took him to jail?
THE WITNESS: Correct. 
THE COURT: All right. Anything else?
MR. KELLER: Umm, based on that . . .
THE COURT: You got all--you got the rest of the day if you to [sic] want [to] 
take it, Mr. Keller. I'm not rushing you. I just--I have an inclining of where 
Mr. Henson is going, so . . .
¶4 Thereafter, the prosecutor essentially made only two final inquiries of 
Officer Turnbough before passing him as a witness. The prosecutor questioned 
Officer Turnbough regarding "whether or not defendant could turn into this 
parking lot with reasonable safety", to which the officer replied, "[y]es." The 
prosecutor also inquired "[w]as there any traffic on that road", to which the 
Officer Turnbough replied, "[o]nly his vehicle and us." 
¶5 The remaining events which form the basis for Appellee's arrest and 
misdemeanor charges can be gleaned from Officer Turnbough's probable cause 
affidavit. Following the stop, Appellee along with another occupant exited the 
vehicle. Appellee, upon request, was unable to provide proof of valid insurance. 
While another officer was in the process of citing Appellee for these traffic 
infractions, Appellee attempted to walk away from the traffic stop. Officer 
Turnbough ordered Appellee to stop, but Appellee continued to walk away from the 
scene. Officer Turnbough then positioned himself in Appellee's direct path and 
ordered Appellee to return to his car. Appellee replied, "I can go wherever I 
want, and you can't stop me." As a result, Officer Turnbough physically 
restrained Appellee, having to push Appellee back toward the site of the stop. 
During this struggle, Appellee turned around to face Officer Turnbough. 
Turnbough directed Appellee to turn back around and put his hands behind his 
back. While Appellee initially complied, he immediately pulled away as Officer 
Turnbough was attempting to handcuff him. Another officer then stepped in to 
help facilitate the arrest. Appellee's attempt to avoid being restrained 
included pulling his hands away and attempting to lie on his hands. 
¶6 During the brief hearing on October 1, 2014, Special Judge Hiddle made 
reference to a case he clearly found to be dispositive in the matter. While 
defense counsel apparently was aware of "the case", the State was not. The State 
thus requested an opportunity to review and possibly respond to this case before 
the trial court ruled on Appellee's motion. The trial court granted the State's 
request and the hearing was concluded. It is clear from the October 22, 2014 
hearing transcript that Johnson v. State, 2013 OK CR 12, 308 P.3d 1053 was "the case" the trial court was 
referencing. 
¶7 The State filed its Response to Defendant's Motion to Quash Illegal 
Arrest and Detention on October 21, 2014. Notable within its response the 
State asserted that Officer Turnbough effectuated the initial traffic stop 
pursuant to a Tulsa municipal ordinance. In support of this contention, the 
State attached to its response a copy of Officer Turnbough's police report which 
provided the following:


We observed the driver of the listed Chevrolet Malibu make a left hand turn 
without signaling. This is in violation of city ordinance T37-625-A: "For a left 
turn, the driver's left hand and arm shall be held horizontally outside the 
vehicle to indicate turning intention, or a blinker light on the front and rear 
of the vehicle shall indicate the direction of turning." 
¶8 Appellee filed his Reply to the State's Response to the Defendant's 
Motion to Quash Illegal Arrest and Detention on October 22, 2014--the same 
day as the final hearing on this matter. Therein, citing to 12 O.S.2011, § 2803(8)(a), Appellee 
challenged the State's reference to and inclusion of Turnbough's police report 
in its response brief. Appellee further asserted the trial court was precluded 
from taking judicial notice of the municipal ordinance referred to in the 
State's response and Turnbough's police report. Referencing Goomda v. City of 
Okla. City, 1973 OK CR 
81, ¶ 3, 506 P.2d 
991, 992, Appellee averred the trial court was precluded from considering 
the proffered ordinance.
¶9 At the October 22nd hearing, Special Judge Hiddle 
sustained Appellee's motion to quash and suppressed all the evidence resulting 
from the illegal stop. In so ruling, Judge Hiddle stated for the record "I am 
stuck with the record that was presented at the hearing." While no further 
evidence was presented at this hearing, brief argument was had regarding (1) the 
alleged municipal ordinance, and (2) Appellee's unspecific motion to quash. With 
regard to these two issues, Special Judge Hiddle made the following 
comments:


I'm stuck with the evidence that was presented at the hearing, regardless. I 
did grant more time for the State to present law, and so on, because the defense 
filed a general motion. 
Judge Hiddle further stated:


I will state for the record, I can't try these cases for either one of you. 
It is true that--what you commented upon, Mr. Keller. I passed this case so that 
you would have every opportunity--and it is not a trick, I just can't be telling 
either party how to do their case. I passed it knowing--and we discussed this 
last time, that it was a surprise, the Defendant's argument. Therefore, because 
his motion was insufficient, I gave you [the State] plenty of time in order to 
ask for whatever relief you wanted. . . . I am stuck with the record I have. . . 
. The Court was perfectly willing to allow the State to reopen its case. 

Thereafter, the State requested permission to reopen the case to which the 
court stated, "Not now; it's too late. And I just waited, and waited, and waited 
a moment ago for more arguments or more requests. I can't give hints. . . . And 
so I'm stuck with the record; and because I am stuck with the record, the 
defense prevailed." Id.
¶10 Additional information relating to these proceedings will be presented as 
it becomes relevant to our discussion of the issues below.
DISCUSSION
¶11 Our review of the magistrate's decision is based on an abuse of 
discretion standard. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194 ("In appeals brought to this Court 
pursuant to 22 O.S.2011, § 
1053, this Court reviews the trial court's decision to determine if the trial 
court abused its discretion."). An abuse of discretion has been defined as "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 (quoting Stouffer v. State, 
2006 OK CR 46, ¶ 60, 147 P.3d 245, 263). When reviewing a trial court's 
ruling, we defer to the trial court's factual findings about the stop, unless 
those findings are clearly erroneous. State v. Alba, 2015 OK CR 2, ¶ 4, 341 P.3d 91, 92. However, we review de novo the 
magistrate's legal conclusions drawn from those facts. Id.
¶12 In the first proposition of error, Appellant contends Special Judge 
Hiddle abused his discretion when he ruled Officer Turnbough's initial stop of 
Appellee was illegal. "In terms of the initial justification for a traffic stop, 
the Supreme Court has recognized that '[a]s a general matter, the decision to 
stop an automobile is reasonable where the police have probable cause to believe 
that a traffic violation has occurred.'" McGaughey v. State, 
2001 OK CR 33, ¶ 25 & n.21, 
37 P.3d 130, 136 & n.21 (quoting 
Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 
(1996)). Additionally, the officer's subjective motivation for actually stopping 
a particular vehicle is irrelevant to the legality of the stop so long as the 
officer had probable cause to believe a traffic violation had occurred. 
Id., 2001 OK CR 
33, ¶ 25, 37 P.3d at 137. 
¶13 The facts provided by the record in this case regarding the initial 
traffic stop are very limited. First, Officer Turnbough stopped Appellee's 
vehicle after observing Appellee fail to signal his intention to turn left into 
a parking lot. Second, when asked whether Appellee could "make the left turn 
with safety," Officer Turnbough replied "[y]es." Finally, in response to whether 
there was any traffic on the road, Officer Turnbough stated "[o]nly [Appellee's] 
vehicle and us." Based on these limited facts and relying on Johnson v. 
State, 2013 OK CR 
12, 308 P.3d 
1053, Special Judge Hiddle ruled the initial stop was illegal pursuant to 
47 O.S.2011, § 
11-604. 
¶14 Section 11-604 provides in pertinent part:


A. No person shall turn a vehicle at an intersection, a public or private 
road, or a driveway, unless the vehicle is in proper position upon the roadway 
as required in Section 11-601 of this title, or move right or left upon a 
roadway unless and until such movement can be made with reasonable safety. No 
person shall so turn any vehicle without giving an appropriate signal as 
provided in subsection B of this section, in the event any other traffic may 
be affected by such movement. 
B. A signal of intention to turn right or left as required by law shall be 
given continuously during not less than the last one hundred (100) feet traveled 
by the vehicle before turning. 
(emphasis added).
¶15 As occurred in the instant case, the defendant in Johnson v. 
State, 2013 OK CR 
12, 308 P.3d 
1053, was stopped for turning left without using his turn signal. Addressing 
the legality of the stop, the Court set forth to analyze the purpose of § 11-604 
and ascertain the Legislature's choice of the phrase "may be affected." 
Johnson, 2013 OK CR 
12, ¶¶ 9-11, 308 P.3d at 1055-56. Finding that the purpose of 
47 O.S.2011, § 
11-604 is "for drivers to notify other motorists in the immediate area of their 
intention to make a turn or lane change, in order to prevent traffic accidents," 
the Court found the phrase means "a driver must engage a turn signal 'when there 
is a reasonable possibility that other traffic may be affected.'" 
Johnson, 2013 OK CR 
12, ¶ 11, 308 P.3d at 1055-56 (quoting United States v. Burciaga, 
687 F.3d 1229, 1233 (10th Cir. 2012) which quotes State v. Hubble, 146 
N.M. 70, 206 P.3d 579, 584 (2009)). Hence, proof of any actual effect on other 
traffic is not necessary to prove a violation of § 11-604; a reasonable 
possibility that other traffic may have been affected is sufficient. Johnson, 
2013 OK CR 
12, ¶ 12, 308 P.3d at 1056. The record evidence in Johnson 
established other cars were on the road at the time Johnson failed to signal. 
Thus, the Court found this evidence was sufficient to prove a § 11-604 violation 
which provided probable cause to legally stop Johnson. Id.
¶16 Applying Johnson to the record evidence presented in the instant 
case, Special Judge Hiddle found the initial stop was illegal.1 However, referring this 
Court to United States v. Burkley, 513 F.3d 1183 (10th Cir. 2008), the 
State contends this ruling was in error and asserts the mere fact that Officer 
Turnbough's police car was on the roadway and may have been affected by 
Appellee's failure to signal was sufficient to prove a § 11-604 violation. As 
was done by this Court in Johnson, supra., the Burkley Court 
examined § 11-604 and rejected the defendant's contention that the State was 
required to prove that traffic was actually affected by the defendant's 
unsignaled turn. In doing so, the Court further concluded that under the facts 
presented a police car can be the actual vehicle (or traffic) that may have been 
affected. Id. at 1187 n.1. 
¶17 As previously set forth, the record surrounding the initial stop in the 
present case is less than ideal. As demonstrated by Burkley, the mere 
fact that Officer Turnbough's police car and Appellee's vehicle were the only 
two vehicles on the roadway at the time of the alleged traffic infraction does 
not dictate a finding that the initial stop was illegal. However, the record 
does not provide any indication of where Officer Turnbough's vehicle was in 
relation to Appellee's vehicle to determine if Appellee's failure to signal may 
have affected other traffic for purposes of § 11-604. Moreover, Officer 
Turnbough testified Appellee could make the left turn safely into the parking 
lot. 
¶18 Subsequent to the trial court's ruling in this matter, the United States 
Supreme Court handed down Heien v. North Carolina, ___ U.S. ___, 135 S. 
Ct. 530, 190 L. Ed. 2d 475 (decided Dec. 15, 2014). In Heien, an officer 
stopped a vehicle because one of its two brake lights was out, when in actuality 
the law only required one working brake light. Addressing "whether such a 
mistake of law can nonetheless give rise to the reasonable suspicion necessary 
to uphold the seizure under the Fourth Amendment", the Supreme Court ruled that 
it can. Heien, 35 S. Ct. at 534. At first blush, the Heien case 
appears applicable to the issue at hand; however, further analysis demonstrates 
otherwise. In contrast to Heien, this is not a case involving a mistake 
of law or fact by the officer involved, but a case involving mistakes by the 
prosecutor. Nothing in the record indicates Officer Turnbough stopped Appellee 
based upon a mistake or misunderstanding of the law or the facts. Rather, the 
State simply failed to present sufficient facts at the motion hearing to 
demonstrate the stop was reasonable pursuant to 47 O.S.2011, § 11-604. Nor did the State seek 
to properly introduce into the record the relevant municipal ordinance, which 
would have enabled the State to argue in the alternative that the stop was 
reasonable based on this ordinance. While the trial court's unconventional 
handling of the matter clearly set the stage for the confusion that ensued at 
the hearing on Appellee's Motion to Quash Illegal Arrest and Detention, 
the State was given a sufficient opportunity to reexamine and shore up its case 
as needed and failed to do so.
¶19 Thus, based upon the limited facts presented in this matter, we cannot 
conclude the trial court abused its discretion when it ruled the initial stop 
was illegal. Appellant's first proposition of error fails.
¶20 A finding that the initial stop in this matter was improper, however, is 
not dispositive of whether Judge Hiddle properly suppressed "all evidence 
resulting from the illegal stop." Evidence that is acquired because of prior 
illegal activity is generally excluded as the fruit of that illegality. Wong 
Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 
441 (1963). Yet, in keeping with Brown v. Illinois, 422 U.S. 
590, 
603, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416 (1975), this Court has rejected "a 
'but for' test which would require automatic exclusion of evidence that would 
not have come to light but for the illegal actions of police." Jacobs v. 
State, 2006 OK CR 
4, 
¶ 6, 128 P.3d 
1085, 1087. We will thus address the State's remaining allegations of error 
but do so in the logical order in which the issues present themselves based upon 
the chain of events which transpired following the initial stop. 
¶21 We turn next to the State's fourth proposition of error relating to 
Appellee's obstructive behavior following the stop which ultimately led to his 
arrest for obstruction and resisting arrest. The State in essence contends in 
this proposition of error that the magistrate abused his discretion when he 
suppressed the evidence relating to Appellee's obstruction and resisting arrest 
charges as fruit of the illegal stop. At the October 22, 2014 hearing, the State 
requested a specific ruling on its contention that "we can only suppress the 
actual fruits of the detention, which is the failure to signal and the no 
insurance, and not the separate criminal activities of the Defendant, which is 
the obstruction and the resisting." Judge Hiddle ruled:


But you can resist an illegal detention or arrest, and I've ruled the 
detention and arrest to be illegal, so that's--the law answers that question. 
That's not even--I don't even have to strain my brain for that 
one.
¶22 While "[t]he poisonous tree doctrine allows a defendant to exclude 
evidence 'come at by exploitation' of violations of his Fourth Amendment 
rights", United States v. Jarvi, 537 F.3d 1256, 1259 (10th Cir. 2008), 
the State avers Appellee's decision to obstruct the traffic stop was a separate 
criminal act that purged any possible illegal taint associated with the initial 
traffic stop. See Flores v. State, 1999 OK CR 52, ¶ 11, 994 P.2d 782, 784 ("[T]he original taint of impropriety 
may be removed by intervening circumstances.")


To successfully suppress evidence as the fruit of an unlawful detention, a 
defendant must first establish that the detention did violate his Fourth 
Amendment rights. The defendant then bears the burden of demonstrating "a 
factual nexus between the illegality and the challenged evidence." Only if the 
defendant has made these two showings must the government prove that the 
evidence sought to be suppressed is not "fruit of the poisonous tree," either by 
demonstrating the evidence would have been inevitably discovered, was discovered 
through independent means, or was so attenuated from the illegality as to 
dissipate the taint of the unlawful conduct.
United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) 
(citation omitted).
¶23 A traffic stop is clearly a seizure under the Fourth Amendment. 
Seabolt v. State, 2006 OK CR 50, ¶ 6, 152 P.3d 235, 237. Thus, the next query is whether a 
factual nexus exists between the illegal stop and Appellee's obstructive 
behavior. "To establish the factual nexus, at a minimum, 'a defendant must 
adduce evidence at the suppression hearing showing the evidence sought to be 
suppressed would not have come to light but for the government's 
unconstitutional conduct.'" United States v. Chavira, 467 F.3d 1286, 1291 
(10th Cir. 2006) (quoting Nava-Ramirez, 210 F.3d at 1131). The threshold 
question is whether the challenged evidence was a product of an "exploitation of 
the original illegality." Flores, 1999 OK CR 52, ¶ 11, 994 P.2d at 784-85. In the present 
case, the question thus being whether Appellee's behavior in walking away from 
the stop was a direct product of the illegal stop or whether Appellee's conduct 
was an intervening circumstance or act, which dissipated or purged any taint 
originating from the illegal stop. To make this determination, "a reviewing 
court must consider (a) the proximity in time between the illegal seizure and 
the discovery of the evidence; (b) any intervening circumstances; and (c) the 
purpose and flagrancy of official misconduct." Jacobs, 2006 OK CR 4, ¶ 6, 128 P.3d at 1087.
¶24 In the present case, the lapse of time between the initial stop and 
Appellee's obstructive conduct was minimal. However, despite the brief lapse of 
time, Officer Turnbough did not "discover" the challenged evidence, rather 
Appellee's behavior actually created the now challenged evidence. This 
distinction leads us to the second factor--the presence of an intervening 
circumstance. We cannot find that Appellee's alleged obstructive behavior to be 
the product of Officer Turnbough's illegal stop. Despite the questionable stop, 
the record does not indicate that the officers involved had any intention other 
than to simply write Appellee a ticket for failing to signal and carry proof of 
insurance and then send Appellee on his way. Appellee's decision to behave as he 
did was an independent and voluntary act which broke the link to any taint 
caused by the illegal stop. See United States v. Boone, 62 F.3d 323, 326 
(10th Cir. 1995) (the defendant's decision to discard evidence was an 
independent and voluntary act sufficient to cut the link to the unlawful car 
search). 
¶25 As to the third and final factor, the purpose and flagrancy of the 
official misconduct, this factor "may be shown by evidence that police actions 
were purposefully investigatory in nature; that an arrest was obviously illegal; 
and that an arresting officer was aware the arrest was illegal." Jacobs, 
2006 OK CR 4, ¶ 6, 128 P.3d at 1087. 
The initial traffic stop in the instant case was not per se illegal. Nor does 
the record show that Officer Turnbough was aware the stop was illegal.2 The traffic stop, 
although it was ultimately found to be illegal, simply does not qualify as a 
flagrant Fourth Amendment violation that tilts the scales against attenuation. 
Boone, 62 F.3d at 325. Appellee's conduct was an intervening 
circumstance, or act, which purged any taint originating from the initial stop. 
Thus, we find the State's fourth proposition of error has merit. While the 
evidence relating to Appellee's failure to carry insurance was properly 
suppressed, Special Judge Hiddle erred when he suppressed all evidence relating 
to Appellee's obstruction and resisting arrest charges. 
¶26 This determination essentially answers the State's third proposition of 
error. The State contends therein that the trial court erred when it applied the 
exclusionary remedy to Appellee's resisting arrest charge. As just discussed, 
Appellee's obstructive behavior was an independent act, which broke the link to 
any taint originating from the unlawful stop. Hence, evidence of Appellee's 
obstructive behavior was not a fruit of the questionable stop. Moreover, this 
behavior formed the legal basis for Appellee's arrest for obstruction. See 
Trent v. State, 1989 OK CR 36, ¶ 4, 777 P.2d 401, 402 ("Physical force is but one way of 
obstructing an officer. . . . [W]ords alone may suffice to support a conviction 
for Obstructing an Officer."). The exclusionary remedy is therefore not 
applicable to Appellee's resisting arrest charge. Evidence of Appellee's 
resisting arrest charge was suppressed in error. 
¶27 Despite the foregoing determinations, the Court is cognizant that 
Appellee's alleged obstructive behavior not only formed the legal basis for 
Appellee's obstruction charge, but arguably could be viewed as an act of 
resistance to the seizure that occurred when Appellee was stopped. Thus, we turn 
next to the State's second proposition of error in which the State asserts the 
magistrate erred when he extended the limited common law right to resist an 
illegal arrest to permit Appellee to walk away from the traffic stop. The 
analysis of this issue requires this Court to focus on (1) the Fourth Amendment 
seizure which occurred when Appellee was stopped, and (2) whether Appellee had a 
right under Oklahoma law to resist such seizure. 
¶28 As a general rule, one may reasonably resist an unlawful arrest. 
Sandersfield v. State, 1977 OK CR 242, ¶ 11, 568 P.2d 313, 315. The right to resist an illegal 
arrest is a common law right providing that "[i]f the officer had no right to 
arrest, the other party might resist the illegal attempt to arrest him, using no 
more force than was absolutely necessary to repel the assault constituting the 
attempt to arrest."3 Bad Elk v. United States, 177 U.S. 
529, 
535, 20 S. Ct. 729, 731, 44 L. Ed. 874 (1900). The right to resist an unlawful 
arrest is thus limited and varies with the circumstances. Sandersfield, 
1977 OK CR 242, ¶ 11, 568 P.2d at 315. 
See also Hayes v. State, 1977 OK CR 220, ¶ 3, 566 P.2d 1174, 1175 ("In Oklahoma, under some 
circumstances, a person may reasonably resist an unlawful arrest."). While a 
person in Oklahoma may reasonably resist an unlawful arrest, the circumstances 
in the instant case involve an unlawful traffic stop--not an arrest. Whether 
this common law right extends to an unlawful traffic stop is a unique issue 
which this Court has not previously addressed.
¶29 As noted in Graves v. Thomas, 450 F.3d 1215, 1223 (10th Cir. 
2006), "a routine traffic stop is not equivalent to an arrest." An 
"[a]rrest is the taking of a person into custody, so that he may be held to 
answer for a public offense." 22 O.S.2011, § 186. "An arrest is made by an 
actual restraint of the person of the defendant, or by his submission to the 
custody of the officer." 22 O.S.2011, § 196. "A [traffic] stop, while 
an intrusion on liberty, is slight compared to the deprivation of freedom that 
results from an arrest." Barnhard v. State, 86 Md.App. 518, 528, 587 A.2d 
561, 566 (1991), aff'd, 325 Md. 602, 602 A.2d 701 (1992). As 
compared to an arrest, a traffic stop entails a lesser intrusion on one's 
personal liberty than an arrest and is a relatively brief encounter with police 
officers. Thus, while "[a] traffic stop is a seizure within the meaning of the 
Fourth Amendment, . . . a routine traffic stop is more analogous to an 
investigative detention than a custodial arrest." Graves, 450 F.3d at 
1223-24 (quoting United States v. Bradford, 423 F.3d 1149, 1156 (10th 
Cir. 2005)). See also Castellano v. State, 1978 OK CR 107, ¶ 8, 585 P.2d 361, 365 ("If an officer is momentarily 
detaining a person in order to make an inquiry so as to determine his identity 
and obtain more information, and is in no way attempting to restrain him of his 
liberty or take him into custody, then the stop does not constitute an arrest, 
but, rather, is an investigatory detention."). 
¶30 The majority of states which have considered the issue of whether the 
right to resist extends or applies to investigatory stops or detentions have 
either statutorily or judicially rejected such an extension. Graves, 450 
F.3d at 1225 n.7 (referencing Faulkner v. State, 277 Ga.App. 702, 
627 S.E.2d 423, 425 (Ga. Ct. App. 2006) ("We do not leave the determination of 
whether there is a legal basis for a traffic stop to the driver. To hold 
otherwise could encourage persons to resist the police and create potentially 
violent and dangerous confrontations.") (internal quotations and citations 
omitted); State v. Windus, 207 Ariz. 328, 86 P.3d 384, 387 n. 3 (Ariz. 
Ct. App. 2004); State v. Sims, 851 So.2d 1039, 1047 (La. 2003); State 
v. Howell, 782 N.E.2d 1066, 1067-68 (Ind. Ct. App. 2003); Com v. 
Hill, 264 Va. 541, 570 S.E.2d 805, 808 (Va. 2002); State v. Coleman, 
10 Neb.App. 337, 630 N.W.2d 686, 697 (Neb. Ct. App. 2001); Abrams v. 
Walker, 165 F. SupP.2d 762, 767 (N.D.Ill. 2001); State v. Wiegmann, 
350 Md. 585, 714 A.2d 841 (Md. 1998); State v. Dawdy, 533 N.W.2d 551, 
555-56 (Iowa 1995) (adopting the Eighth Circuit's holding in United States v. 
Dawdy, 46 F.3d 1427 (8th Cir.1995))). Moreover, in California v. Hodari 
D., 499 U.S. 621, 627, 111 S. Ct. 1547, 1551, 113 L. Ed. 2d 690 (1991), 
the Supreme Court cautioned:


We do not think it desirable, even as a policy matter, to stretch the Fourth 
Amendment beyond its words and beyond the meaning of arrest, as respondent 
urges. . . . Compliance with police orders to stop should therefore be 
encouraged. Only a few of those orders, we must presume, will be without 
adequate basis, and since the addressee has no ready means of identifying the 
deficient ones it almost invariably is the responsible course to comply. 

¶31 We likewise decline to extend the right to resist to an illegal traffic 
stop. Compared to an arrest, a routine traffic stop is a short-lived encounter 
with law enforcement that entails far less of an intrusion on a driver's 
personal liberty. Additionally, the typical motorist simply is not equipped to 
make a determination of whether there is a legal basis for a traffic stop. 
Whether the officer did, in hindsight, have probable cause to make the traffic 
stop should be resolved in a courtroom, not in the streets. To permit otherwise 
would effectively encourage drivers to engage in potentially explosive self-help 
methods. This, in turn, would increase the risk of escalating what should be a 
relatively benign interaction between law enforcement and a driver into a 
potentially dangerous or violent interaction. See Rodgers v. State, 280 
Md. 406, 419-20, 373 A.2d 944, 951-52 (1977) (We cannot "ignore the fact that 
combat on the streets between police officers and a citizen resisting arrest can 
and often does involve passersby or other citizens, some of whom may be inclined 
to enter the fray, to their detriment--others of whom may suffer injury merely 
by being in the way."). As we have seen played out in the news time and time 
again, resisting an arrest often results in injuries to police officers, 
suspects, and passersby that are much graver than the arrest itself. 
Barnhard, 86 Md.App. at 527, 587 A.2d at 566. As observed by the Supreme 
Court of California, in People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 
713, 716, 450 P.2d 33, 36 (1969):


[S]elf-help as a practical remedy is anachronistic, whatever may have been 
its original justification or efficacy in an era when the common law doctrine 
permitting resistance evolved. . . . Indeed, self-help not infrequently causes 
far graver consequences for both the officer and the suspect than does the 
unlawful arrest itself. Accordingly, the state, in deleting the right to resist, 
has not actually altered or diminished the remedies available against the 
illegality of an arrest without probable cause; it has merely required a person 
to submit peacefully to the inevitable and to pursue his available remedies 
through the orderly judicial process.
¶32 Resistance to a traffic stop is undoubtedly the "least effective and 
least desirable of all possible remedies [to an illegal traffic stop]." 
Rodgers, 280 Md. at 421, 373 A.2d at 952. To recognize or extend the 
right to resist such momentary seizures, short of an arrest, would serve only to 
expand the danger of violence. Barnhard, 86 Md.App. at 528, 587 A.2d at 
566. Thus, we decline to recognize a right to resist an unlawful traffic stop in 
Oklahoma. Balancing the State's interest in discouraging violence against the 
brief seizure typical to a traffic stop, this ruling does not result in a 
deprivation of liberty. See Rodgers, 280 Md. at 421, 373 A.2d at 952 
(Court's rejection of physical resistance "when balanced against the State's 
interest in discouraging violence, cannot be realistically considered a 
deprivation of liberty.").
¶33 In so ruling, we find the State's second proposition of error has merit. 
Assuming arguendo that Appellee perceived the initial stop to be 
unlawful, Appellee did not have the right to resist the stop. Whether a stop is 
lawful is an issue to be resolved peacefully in a courtroom, not by a driver 
while pulled over on the side of the road, or as occurred in this matter in a 
parking lot. Although Officer Turnbough lacked probable cause to stop Appellee 
under the facts contained within this record, Appellee did not have a right 
under Oklahoma law to resist that stop.
¶34 The State complains in its final assignment of error that the trial court 
erred when it placed the onus on the State to decipher Appellee's overly vague 
motion to quash. At the October 1, 2014 hearing on Appellee's motion, the trial 
court determined Appellee's motion violated the specificity requirements of Rule 
4 of the Rules for the District Courts of Oklahoma, 12 O.S.2011, Ch 2, App. 
(2014). As a result, Special Judge Hiddle continued the hearing to October 22, 
2014, to provide the State time to seek relief or request permission to reopen 
its case.4 This continuance provided the State with sufficient 
time to determine how best to address Appellee's brief, including seeking to 
reopen the case to present additional evidence and properly introduce the 
relevant municipal ordinance the State contended in its reply brief was actually 
the legal basis of the challenged stop. Despite the somewhat unconventional 
manner in which the trial court handled this entire matter, the State has failed 
to demonstrate the trial court's overall treatment of Appellee's insufficient 
motion was an abuse of discretion. See Neloms, 2012 OK CR 7, ¶ 35, 274 P.3d at 170 ("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."). Thus, 
the State's final proposition of error fails.
DECISION
¶35 The October 22, 2014 ruling of the trial court sustaining Appellee's 
motion to quash and suppressing the evidence in this case is REVERSED and 
this case is REMANDED to the trial court for further proceedings not 
inconsistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma 
Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE 
is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTYTHE 
HONORABLE BILL HIDDLE, SPECIAL JUDGE
APPEARANCES AT 
HEARING                                 
APPEARANCES ON APPEAL





KEVIN KELLER ASSISTANT DISTRICT ATTORNEY500 S. DENVER 
      AVE., STE. 900TULSA, OK 74103ATTORNEY FOR 
    STATE

KEVIN KELLER ASSISTANT DISTRICT ATTORNEY500 S. DENVER 
      AVE., STE. 900TULSA, OK 74103ATTORNEY FOR 
      APPELLANT




ROB V. HENSON HENSON LAW FIRM, PLLC406 S. 
      BOULDERTULSA, OK 74103ATTORNEY FOR DEFENDANT

ROB V. HENSON 
      HENSON LAW FIRM, PLLC406 S. BOULDERTULSA, OK 74103ATTORNEY 
      FOR APPELLEE



OPINION BY: HUDSON, J.SMITH, P.J.: CONCUR IN RESULTSLUMPKIN, V.P.J.: 
CONCUR IN RESULTSJOHNSON, J.: CONCURLEWIS, J.: CONCUR 
FOOTNOTES
1 Special Judge Hiddle's 
analysis was based on Officer Turnbough effectuating the stop pursuant to 
47 O.S.2011, § 
11-604. The State argued in its Response to Defendant's Motion to Quash 
Illegal Arrest and Detention that Officer Turnbough actually stopped 
Appellee pursuant to a Tulsa municipal ordinance which apparently requires 
motorists to always signal the direction they intend to turn. However, the State 
failed to properly introduce the relevant ordinance into the record. See 
Hishaw v. City of Oklahoma City, 1991 OK CR 122, ¶ 3, 822 P.2d 1139, 1139-40 (outlining appropriate methods by 
which to properly bring an ordinance to the attention of a court). The trial 
court was also precluded from taking judicial notice of this ordinance. See 
Hayes v. State, 1977 OK CR 220, ¶ 5, 566 P.2d 1174, 1175 (a district court may not take 
judicial notice of a municipal ordinance). Therefore, Judge Hiddle was precluded 
from considering the ordinance when determining whether Officer Turnbough had 
probable cause to believe a traffic violation had occurred. 
2 Special Judge Hiddle acknowledged that not many 
officers are aware of the Johnson case, stating "Officers don't know. . . 
. And most lawyers don't know this case. But I will talk about it in a minute." 
While Judge Hiddle's comment implies a mistake of law, as discussed in footnote 
2 above, that is not what occurred in this matter. See Heien, 35 S. Ct. 
530. Officer Turnbough appears to have understood the law. In all likelihood the 
stop was lawful, but sadly the record is simply not sufficient to support such a 
finding. To this end we reiterate that although Officer Turnbough may have 
actually stopped Appellee pursuant to a Tulsa municipal ordinance, just as the 
district court was precluded from taking judicial notice of such ordinance, so 
too is this Court. See Hayes, 1977 OK CR 220, ¶ 3, 566 P.2d at 1175 (neither this Court 
nor a District Court may take judicial notice of a municipal ordinance); 
Hishaw, 1991 OK CR 
122, ¶ 4, 822 P.2d at 1140 ("the ordinance under challenge was not included in the 
record on appeal and therefore is not properly before this Court for review."). 

3 The origins of the right to resist an unlawful arrest 
can be traced to the Magna Carta in 1215. Hemmens & Levin, "Not a Law at 
All": A Call for a Return to the Common Law Right to Resist Unlawful Arrest, 
29 Sw. U. L. R. 1, 9 (1999). The right was judicially established in 1666 in the 
Hopkin Huggett's Case, 84 Eng. Rep. 1082 (K.B. 1666). The court reasoned that an 
illegal arrest "created adequate provocation for the victim, thus justifying the 
victim's resistance." Id. (citing Hopkin Huggett's Case, 84 Eng. Rep. 
1082 (K.B. 1666)). 
4 In issuing his ruling, Special Judge Hiddle stated at 
the October 22, 2014 hearing, "I passed it knowing - and we discussed this last 
time, that it was a surprise, the Defendant's argument. Therefore, because his 
motion was insufficient, I gave you [the State] plenty of time in order to ask 
for whatever relief you wanted. . . . The Court was perfectly willing to allow 
the State to reopen its case. . . . I just waited, and waited, and waited a 
moment ago for more arguments or more requests. I can't give hints." 



LUMPKIN, VICE PRESIDING JUDGE: CONCUR IN RESULTS:
¶1 I concur in reversing the order of the District Court sustaining the 
motion to quash and suppress the evidence. I also agree with remanding the case 
to the District Court for further proceedings. I write separately though to 
address several points. 
¶2 I disagree with the opinion's reliance on the common law. Oklahoma is not 
a common law state. Our laws have been codified by the Legislature in the form 
of state statutes and these statutes supplant the common law except where the 
Legislature has failed to speak. Title 12 O.S.2011, § 2 provides: "[t]he common law, as modified 
by constitutional and statutory law, judicial decisions and the condition and 
wants of the people, shall remain in force in aid of the general statutes of 
Oklahoma; but the rule of the common law, that statutes in derogation thereof, 
shall be strictly construed, shall not be applicable to any general statute of 
Oklahoma; but all such statutes shall be liberally construed to promote their 
object." See also Ex part Reniff, 65 Okla. Crim. 400, 88 P.2d 382, 383 (1939) (12 O.S. § 2 applies to both civil and criminal cases). 
Title 22 O.S.2011, § 
9 
provides: "[t]he procedure, practice and pleadings in the courts of record of 
this state, in criminal actions or in matters of criminal nature, not 
specifically provided for in this code, shall be in accordance with the 
procedure, practice and pleadings of the common law." See also Elliott v. 
Mills, 1959 OK CR 
22, ¶ 27, 335 P.2d 
1104, 1111 ("[t]he Constitution of Oklahoma is silent upon any adoption or 
abrogation of the common law. However the legislature announced by statute the 
force and effect of the common law in Oklahoma" citing 12 O.S. § 2); State v. Sandfer, 
93 Okla. Crim. 
228, 226 P.2d 
438, 442 (1951) (there are no common law crimes in Oklahoma); Bingham v. 
State, 82 Okla. Crim. 305, 169 P.2d 311, 315 (1946) ("[w]e only look to the common 
law in Oklahoma where procedure in matters of criminal nature are not 
provided for in the code", citing 22 O.S. § 9)(emphasis added); Barclay v.
U.S., 11 Okla. Crim. 
503, 69 P. 
798, 800 (1902) ("[t]he federal courts hold that there are no common-law 
crimes under the laws of the United States; that all crimes, the punishment and 
the procedure are statutory, the whole criminal jurisdiction of the courts of 
the United States being derived from acts of congress".) The principle that 
statutes prevail over the common law is also seen throughout our law. See 
Gilbert v. State, 1982 OK CR 100, ¶ 21, 648 P.2d 1226, 1231 (statutes defining contempt 
supplanted common law definition of contempt); Campbell v. State, 
1972 OK CR 195, ¶ 4, 500 P.2d 303 (common law writ of coram nobis supplanted 
by statutory Post-Conviction Procedure Act); 60 O.S.2011, § 175.50 (regarding the 
application of statutes over common law in property issues). The issues in the 
present case may be resolved by reliance on our state statutes, and not the 
common law or cases from other jurisdictions, with statutes different from 
Oklahoma.
¶3 This opinion cites to a line of cases which state that a person has the 
right to resist an unlawful arrest. This principle has not been codified in our 
statutes. The validity of this principle has been limited, if not supplanted, by 
our state statutes. The Legislature has enacted statutes prohibiting resisting 
an arrest and obstructing an officer. See 21 O.S.2011, §§ 268 and 540. In 
22 O.S.2011, § 196, the Legislature has 
defined what is a legal, warrantless arrest. In § 196(1) an officer may legally 
arrest, without a warrant, for a public offense, committed or attempted, in the 
officer's presence. The Legislature has also provided that if a person, after 
being notified that he is to be arrested, flees or forcibly resists, the officer 
may use all necessary means to effect the arrest. 22 O.S.2011, § 193. Additionally, in 22 
O.S.2011, §§ 31-33, the Legislature has set forth who may resist the commission 
of a public offense. The Legislature has not provided any exceptions to these 
rules which would incorporate a right to resist arrest. These statutes have 
essentially changed the common law of arrest and any right there may have been 
to resist arrest. The Legislature has implicitly if not explicitly, supplanted 
the common law of arrest with these state statutes. 
¶4 The opinion distinguishes Heien v. North Carolina, ___ U.S. ___, 
135 S.Ct. 530, 190 L.Ed.2d 475 (2014), from the present case. However, I would 
urge the trial court on remand to review Heien as it appears, though it 
is by no means clear, that the initial traffic stop was ruled illegal based 
solely upon the court's reading of Johnson v. State, 2013 OK CR 12, 308 P.3d 1053 and the officer's alleged misunderstanding 
of the law. In Heien, the Supreme Court held that a search or seizure may 
be permissible even though the justification for the action includes a 
reasonable factual mistake or mistake of law by the officer. Therefore, if the 
officer's actual understanding of the law was correct or if the officer had a 
legitimate belief that the statute or ordinance had been violated, then under 
Heien, the stop and arrest would be legal. Regardless, I find no evidence 
of officer misconduct and without officer misconduct there can be no application 
of the Exclusionary Rule as the rule is only in place to address police 
misconduct. Hill v. State, 1988 OK CR 251, ¶ 10, 764 P.2d 210, 213 ("[t]he purpose of the exclusionary 
rule is to deter police misconduct and to provide an effective remedy for 
unreasonable searches and seizures in violation of the fourth amendment of the 
United States Constitution and Article II, § 30, of the Oklahoma Constitution"). 

¶5 In the present case, the judge took a proactive role in this hearing, 
apparently based on matters not a part of this record. While the prosecutor 
should have taken the opportunity to reopen the case, offer the municipal 
ordinance for admission into evidence and make a full record, the actions of the 
judge had already chilled the proceedings and contributed to the limited and 
confusing record in his case. While it is understandable under the record before 
us that the prosecutor did not take advantage of the opportunity to reopen his 
case, it is nonetheless the lawyer's responsibility to make the record and 
provide it to this Court on appeal. 

Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Criminal Appeals Cases
 CiteNameLevel
 1988 OK CR 251, 764 P.2d 210, HILL v. STATEDiscussed
 1989 OK CR 36, 777 P.2d 401, TRENT v. STATEDiscussed
 1991 OK CR 122, 822 P.2d 1139, HISHAW v. CITY OF OKLAHOMA CITYDiscussed at Length
 1977 OK CR 220, 566 P.2d 1174, HAYES v. STATEDiscussed at Length
 1977 OK CR 242, 568 P.2d 313, SANDERSFIELD v. STATEDiscussed at Length
 1978 OK CR 107, 585 P.2d 361, CASTELLANO v. STATEDiscussed
 2001 OK CR 33, 37 P.3d 130, 72 OBJ        3431, MCGAUGHEY v. STATEDiscussed at Length
 2006 OK CR 4, 128 P.3d 1085, JACOBS v. STATEDiscussed at Length
 2006 OK CR 46, 147 P.3d 245, STOUFFER v. STATEDiscussed
 2006 OK CR 50, 152 P.3d 235, SEABOLT v. STATEDiscussed
 2012 OK CR 7, 274 P.3d 161, NELOMS v. STATEDiscussed at Length
 2013 OK CR 5, 298 P.3d 1192, STATE v. DELSODiscussed
 2013 OK CR 12, 308 P.3d 1053, JOHNSON v. STATEDiscussed at Length
 2015 OK CR 2, 341 P.3d 91, STATE v. ALBADiscussed
 1999 OK CR 52, 994 P.2d 782, Flores v. StateDiscussed at Length
 1959 OK CR 22, 335 P.2d 1104, ELLIOTT v. MILLSDiscussed
 1939 OK CR 16, 88 P.2d 382, 65 Okl.Cr. 400, Ex parte ReniffCited
 1946 OK CR 54, 169 P.2d 311, 82 Okl.Cr. 305, Bingham v StateCited
 1951 OK CR 4, 226 P.2d 438, 93 Okl.Cr. 228, STATE v. SANDFERDiscussed
 1982 OK CR 100, 648 P.2d 1226, GILBERT v. STATEDiscussed
 1972 OK CR 195, 500 P.2d 303, CAMPBELL v. STATEDiscussed
 1973 OK CR 81, 506 P.2d 991, GOOMDA v. CITY OF OKLAHOMA CITYDiscussed
Oklahoma Supreme Court Cases
 CiteNameLevel
 1902 OK 19, 69 P. 798, 11 Okla. 503, BARCLAY v. UNITED STATESDiscussed
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 2, Common Law to Remain in Force in Aid of General StatutesDiscussed at Length
 12 O.S. 2803, Hearsay Exceptions - Availability of Declarant ImmaterialCited
Title 21. Crimes and Punishments
 CiteNameLevel
 21 O.S. 268, Resistance to Executive Officer's Performance of DutyDiscussed
 21 O.S. 540, Obstruction of Public Officer - Recording the Activity of an Officer in a Public AreaCited
Title 22. Criminal Procedure
 CiteNameLevel
 22 O.S. 9, Common LawDiscussed
 22 O.S. 186, Definition of ArrestCited
 22 O.S. 193, Officer's Authority When Defendant Resists ArrestCited
 22 O.S. 196, Arrest Without Warrant by OfficerDiscussed
 22 O.S. 1053, State or Municipality May Appeal in What CasesDiscussed
Title 47. Motor Vehicles
 CiteNameLevel
 47 O.S. 7-606, Failure to Maintain Insurance or Security - Failure to Provide Proof of Insurance or Security - PenaltiesCited
 47 O.S. 11-604, Turning Movements and Required SignalsDiscussed at Length
Title 60. Property
 CiteNameLevel
 60 O.S. 175.50, Repeal - Operation and EffectCited













