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OCCA Case Review – State v. Nelson, 2015 OK CR 10

Mr. Nelson was charged with Obstruction of an Officer, Resisting an Officer, Failure to Carry Insurance Verification and Failure to Signal. The officer testified at the Motion to Suppress hearing that Mr. Nelson did not use his turn signal to turn from the street into a parking lot. While an officer was writing the ticket to the Defendant, the Defendant decided to walk away.  A different officer ordered him to stop, then got in his path and ordered him to stop again. The Defendant again refused to stop and when the Officer “physically restrained” the Defendant, he resisted by pulling away.

The trial court sustained the Defendant’s motion to suppress based first on 47 OS 11-604 which provides in relevant part: “No person shall so turn any vehicle without giving an appropriate signal…in the event any other traffic may be affected by such movement”. The Court of Criminal Appeals noted that prior cases require that a “driver must engage a turn signal when there is a reasonable possibility that other traffic may be affected” Johnson v. State, 2013 OK CR 12.  Further the Court cited U.S. v. Burkley, 513 F.3d 1183 (10th Cir. 2008) for the proposition that the police car can be the only traffic that may be affected.  However in this case, since the officer testified that the turn could have been made safely without the use of a turn signal and did not elaborate on the position of his vehicle and whether or not there was a reasonable possibility he may have been affected, the Court reluctantly agreed the stop was invalid.

The Court continued by distinguishing this case as one involving a mistake by the prosecutor, rather than a mistake of law or fact by the officer as is discussed in Heien v. North Carolina, ___ U.S. ___ (decided Dec. 15, 2014).

Here’s where it gets interesting: There is a common law right to resist an unlawful arrest which has been discussed in both Oklahoma (Sandersfield v. State, 1977 OC CR 242) and Federal (Bad Elk v. U.S., 177 US 529 (1900) case law. This Court held that since he was only being detained as a part of a routine traffic stop, and had not been arrested, that this right did not apply. The Court went even further and held that the obstructive behavior was somehow an intervening circumstance or act, which dissipated or purged any taint originating from the illegal stop.

Frankly, this is ridiculous. To say that a person walking away from an illegal traffic stop is an intervening circumstance that would give rise to a whole separate crime is silly. The walking away, which gave rise the obstruction, was directly tied to the traffic stop and seizure. The resisting arrest was a direct result of the officer ordering him to stop and attempting to subdue Mr. Nelson. And to further say that it’s all right to resist an unlawful arrest, but not an unlawful detention, ignores the reasons for the right to resist in the first place – that of resisting oppressive conduct by the police.

Basically what this ruling is telling us is that when an officer unlawfully detains you, you are to submit to his authority and challenge the stop and seizure later. However, if you do voluntarily submit to the officer’s authority, the State can now argue in most cases that it was a “consensual encounter” unless you are smart enough to ask if you are free to go and attempt to leave. Frankly, justifying police misconduct is what we have come to expect from our Court of Criminal Appeals.

NOTE: There is, of course, a concurring opinion by J. Lumpkin. He makes the argument that Oklahoma is not a common law state, so there is no right to resist even an unlawful arrest (huh?). Apparently he believes that even if police kick in your door and arrest you, all without a warrant,  you should just sit there and take it and fight about it later in court.  He also tries to sneakily extend Heien and states that the officers “legitimate belief the law was violated” rather than the mistake of law being “reasonable” under the circumstances. This is important because Lumpkin’s language could be construed as meaning only the subjective belief of the officer, no matter how absurd the belief is, is the controlling factor.

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