Solis-Avila v. State , 830 P.2d 191 ( 1992 )

ORDER

Appellant, J. Gerardo Solis-Avila, was convicted by a jury of Count I — Possession of Cocaine with Intent to Distribute, in violation of 63 O.S.1981, § 2-401; Count II — Possession of Marijuana with Intent to Distribute, in violation of 63 O.S.1981, § 2-401; Count III — Maintaining a Dwelling Where a Controlled Dangerous Substance is Kept, in violation of 63 O.S.1981, § 2-404, in Case No. CF-90-6260, in the District Court of Oklahoma County. The jury assessed punishment at Count I — thirty (30) years imprisonment and $100,000 fine; Count II — fifteen (15) years imprisonment and $20,000 fine; Count III — five (5) years imprisonment and $5,000 fine. The trial court ordered Counts I and III to be served concurrently, with the fine in Count III suspended, and Count II to be served consecutively with Counts I and III, with ten (10) years and the fine suspended, for a total of thirty-five (35) years imprisonment and a $100,000 fine. From these judgments and sentences, appellant has perfected his appeal to this Court.

Pursuant to Rule 11.3, Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.1991, Ch. 18, App., appellant made application to be placed on the accelerated docket, which this Court granted on February 10, 1992. Appellant’s proposition was presented to this Court in oral argument on March 19, 1992, pursuant to Rule 11.5(b) of the Rules of the Court. Present for the oral argument were Judges Lane, Lumpkin, and Johnson; Judges Brett and Parks were absent. However, because the three judges present could not unanimously agree as to the outcome, Judges Brett and Parks have listened to the audio tape of the hearing and are voting on this case.

Appellant raised only one issue on appeal, that being whether the trial court committed fundamental error by denying appellant’s motion to suppress after finding that the nighttime execution of the search warrant was improper. Appellant’s house was searched, pursuant to a search warrant, at 2:00 a.m. on November 28, 1990. The police were looking for cocaine, marijuana, and paraphernalia connected with the consumption and distribution of the same, which they found. The trial court found that there was not enough of a factual basis stated in the affidavit to justify the nighttime execution of the search warrant. However, upon further argument by the State, and relying upon United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the trial court found that the police acted in “good faith” and therefore the motion to suppress was overruled.

We agree with trial court that the nighttime execution of the search warrant was improper for there was no showing that the evidence would be moved, destroyed, or concealed as required by 22 O.S.Supp.1990, § 1230. See Wiggin v. State, 755 P.2d 115 (Okl.Cr.1988); Fletcher v. State, 735 P.2d 1190 (Okl.Cr.1986). Merely stating that the evidence is a controlled dangerous substance which could possibly be distributed is insufficient. This Court, however, has never adopted the United States v. Leon “good faith” exception to search warrants such as in this case and we see no reason to do so at this time. We agree with appellant that the trial court erred by failing to sustain his motion to suppress after finding that the search warrant was improperly executed. Therefore, in a four-to-one (4-1) vote, we find that this case must be REVERSED and REMANDED WITH INSTRUCTIONS TO DISMISS.

IT IS SO ORDERED.

/s/James F. Lane JAMES F. LANE, Presiding Judge

/s/Gary L. Lumpkin DISSENTS GARY L. LUMPKIN, Vice Presiding Judge

/s/Tom Brett TOM BRETT, Judge

/s/Ed Parks ED PARKS, Judge

/s/Charles A. Johnson CHARLES A. JOHNSON, Judge