Date: 03-25-2015

Case Style: State of Oklahoma v. Howard James Jones, Jr.

Case Number: CF-2014-2281

Judge: William LaFortune

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Becky Johnson

Defendant's Attorney: Brian Boeheim

Description: Tulsa, OK - The State of Oklahoma charged Howard James Jones, Jr. with possession of a firearm after former conviction of a felony in violation of 21 O.S. 1283 and possession of marijuana, second offense.

After a preliminary hearing, Defendant filed a motion to quash counts 1 and three based on a lack of reasonable suspicion and lack of constructive possession stating:


COMES NOW the Defendant, HOWARD JAMES JONES, JR., by and through BRIAN J. BOEHEIM, his attorney, requesting a quash of the Preliminary Hearing Bind-over of Count 1: Unlawful Possession of a Firearm AFCF’, and Count 3: Unlawful Possession of a Controlled Drug (Marijuana) - 2m1 Offense, herein for the reasons and grounds that sufficient evidence was not adduced at the Preliminary Hearing to establish that a crime had been committed, or that there was reasonable cause to believe Defendant had committed the same. Regarding both counts, all evidence was obtained as fruit of the poisonous tree based on an unconstitutional search and seizure. Specifically regarding Count * * * test established in Staples v. State2 for establishing constructive possession. The court should grant Defendant’s motion on the following grounds:

I. FACTS
A preliminary hearing was held on December 12, 2014, in front the Honorable Judge Clifford Smith. Two Tulsa Police officers were sworn, but only Officer Dawson’s testimony is relevant to this motion.
Officer Adam Dawson testified:
• On May 1st of 2014, at around 11:30 p.m., he and his partner (Officer Adair) were driving north through St. Thomas Square Apartments’ parking area at 1050 East 6lS Street. (TR p. 9, lines 10-15; p.10, lines 3-4).
• A vehicle driving in the opposite direction quickly pulled into a parking spot. (TR p. 10, lines 8-11).
• Officer Dawson stopped his unmarked car with its front end pointing at the passenger side of the Defendant’s vehicle. (TRp. 31, line 25; p. 32, lines 1-6).
• Officer Dawson also claims that from the position on the opposite side of the Defendant’s vehicle, he had an unobstructed view of Mr. Jones getting out of his SUV, bending over at the waste, and make a throwing motion. (TR p. 32, lines 6-14; p. 33, lines 7-25).
• He claims to have heard something metallic hitting the ground. (TR p.12, lines 5-8).
• Officer Dawson claims he found a gun partially under the far side of the car parked next to the Defendant’s SUV. (TR p. 28, lines 12-15; p. 29, lines 2-15).
• He could not with certainty say that someone else did not place the gun under the car where he found it. (TR p. 26, lines 9-13).
• No ammunition, magazine, or holster was found on the Defendant or in the Defendant’s vehicle. (TR p.27, lines 7-14).
• Their police unit’s purpose is not to take calls. Their purpose is to troll high crime
neighborhoods jumping out and stopping hundreds of people every week to talk. “Many
of them we don’t even end up arresting.” (TR p. 17, lines 12-19).
II. REASONABLE SUSPICION
In Delaware v. Prouse, the Court could not conceive of any legitimate basis upon which a patrolman could decide that stopping one particular driver for a spot check would be more productive than stopping any other driver when there is no probable cause to believe that a driver has violated any traffic or equipment regulation and there is no articulable basis for reasonable suspicion that the driver is unlicensed or his vehicle unregistered. This kind of unstandardized and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.3 In this case, Officer Dawson testifies that their mandate is to select and stop individuals without reasonable suspicion or probable cause. The officers make no claim that the suspect violated any traffic or other laws.
In Whren v. United States, plainclothes vice-squad officers were patrolling a “high drug area” in an unmarked car. An officer who had observed traffic violations approached a vehicle that was occupied by the defendants. The defendants argued that the officer would not normally make a traffic stop and that his motivation for the stop was to search for drugs. The Court ruled that a stop and search may be Constitutional even though the officer’s stop was clearly pretextural and breached police procedure, f there is probable cause at the time of the stop due to a traffic violation.4 In this case, there was no traffic violation and therefore no probable cause. This makes the pre-textural stop unconstitutional on its face.
In Terry v. Ohio, where an officer observes unusual behavior that leads him/her to believe there is criminal behavior afoot and the suspect may be armed and dangerous, the officer may stop and pat search the suspect for weapons. This belief must be based on something more than a hunch. In this case, the officers failed to articulate any specific reasonable actions which would lead one to draw a conclusion that there was criminal activity afoot.5 In this case, the officers pulled up to the Defendant’s vehicle with full intention to detain him, yet they had no reasonable suspicion.
The State of Oklahoma does not have a Stop and Identif’ Statute. In City of Indianapolis v. Edmund, the Court suggests that administrative stops for public safety need to be physically situated, so that the suspect comes to the checkpoint. Individual stops can only be justified by some quantum of individualized suspicion.6 In this case, Officer Dawson claims that it is their mandate to pull up and stop people for spot discussions and potential arrest. The stop in this case is not like a sobriety checkpoint, or a cop walking a beat. This is a pick-and-choose procedure at the discretion of the officers, making these stops investigatory instead of administrative, and therefore provides the individual stopped with the full protection of the Fourth Amendment.
III. DOMINION AND CONTROL
In order to bind over a Defendant for trial in District Court, the State must prove that there is knowledge or intent to possess the contraband.7 This may be proven through actual physical control or constructive control.8 Constructive possession may be proven by proximity and intent to exercise dominion and control.9 Proximity alone is insufficient to prove posse5sion.O Inference, reasonable hypothesis, or strong suspicion of knowledge or intent is not enough.” There must be additional proof, which may be established by circumstantial evidence.’2 Although it can be circumstantial, the state must exclude every reasonable hypothesis but that of guilt.’3
In Brown v. State, the police found drugs and paraphernalia in an apartment where the defendant was temporarily staying. No items belonging to the defendant were found in the residence. No contraband was found on the defendant. There was no evidence that the defendant was under the influence of drugs, and he cooperated with the police. The Court found that the evidence was insufficient to establish constructive possession. 4 In this case, Mr. Jones was a temporary visitor to the apartments and the parking area where the gun was found. No ammunition, magazine, or holster was found on Mr. Jones, no evidence was introduced to suggest that he had held a gun, and Mr. Jones fully cooperated with the police.
In Hishaw v. State, an unlit marijuana cigarette was found lying on the front passenger floorboard near where the defendant’s feet had been. With no other evidence, the court held there was insufficient circumstantial evidence to prove constructive possession.’5 In this case, unlike Hishaw v. State, the gun was not found in close proximity to Mr. Jones, so even with some circumstantial evidence the state failed to eliminate every other reasonable hypothesis.
In Roth v. State16, while executing a search warrant at an apartment the defendant was visiting, no contraband was found on the defendant, but a plastic bag containing drugs and paraphernalia was found directly under the chair the defendant had been sitting. Even though the defendant had fresh needle tracks on his arm, there was no blood. The other occupants of the apartment all had blood on their arms. The court held that the circumstantial evidence was insufficient to prove possession. Here, like Roth v. State, there is a reasonable hypothesis other than guilt. By the officer’s own admission, this is a high crime neighborhood. The police make a lot of arrests in this area; therefore there is a better than average possibility the gun was either placed there by the owner of the car it was found under, or was dropped there for later pickup.
III. CONCLUSION
The Officers had no probable cause or reasonable suspicion to stop Mr. Jones. Pulling up to his SUV and jumping out to question Mr. Jones is in contradiction of the Fourth Amendment.
This is not an officer walking a beat and casually coming upon people in a neighborhood. This is a tactical strategy to roll up on individuals for the purpose of investigating a crime yet to be committed. Although it is tempting to have the police force prevent crimes before they occur, like in Minority Report, it flies in the face of the United States and Oklahoma Constitutions. This illegal stop should make all evidence gathered after it was initiated excluded as fruit of the poisonous tree.
Even if this court disagrees with the previous argument, the testimony failed to provide enough evidence to show constructive possession of a gun. The State failed to draw a clear nexus between the gun and Mr. Jones, and they also failed to eliminate every other reasonable hypothesis.
THEREFORE, THE DEFENDANT respectfully requests this Court sustain the motion to quash based on an unconstitutional stop, and/or a lack of evidence to show the DEFENDANT had anything more than proximity to the contraband. This motion is made in good faith.

1. 21 U.S. § 1283
2. 528p2d 1131, 1133-1134 (Uki. Cr. 1974).
3. 440 U.S. 648, 661, 99 S.Ct. 1391, 1400 (1979).
4. 517 U.S. 806, 808 116 S.Ct.1769, 1771 (1996).
5. 392 U.S. 1, 30,88 S.Ct. 1868, 1884 (1968).
6. 531 U.S. 32,47,121 S.Ct. 447,457(2000).
7. 63 0.S. § 2-402.
8. Staples v. State, 528 P.2d 1131, 1133-1134 (Oki. Cr. 1974).
9. Id.
10. Brown v. State, 481 P.2d 475, 476-478 (Okl.Cr. 1971).
11. Staples v. State, 528 P.2d 1131, 1133-1134 (OkI. Cr. 1974).
12. Id., See also Brown v. State, 481 P.2d 475, 476-478 (Okl.Cr. 1971).
13. Id.
14. 481 P.2d 475, 476-478 (Okl.Cr. 1971).
15. 568 P.2d 643, 644-645 (Okl.Cr. 1977).

Outcome: The Court complimented defense counsel on his brief but denied the motion.

Plaintiff's Experts:

Defendant's Experts:

Comments: