In Dodson v State, the OCCA decided that statutory authority for the anticipatory search warrant at issue in that case was not present under Oklahoma law even though the search warrant was constitutionally permissible. Dodson's conviction was overturned based upon statutory authority. I believe 540B forecloses "checkpoint" type operations set up for reasons not based upon probable cause. As for the term checkpoint -v- roadblock argument, those terms are used interchangeably in State v Smith, Lookingbill, Underwood and other Oklahoma cases and for purposes of vehicle stops, the terms roadblock and checkpoint seem synonymous.
Lookingbill cites Brantley v State as the authority for checkpoint type roadblock operations. If I could luck in to 540B abrogating the Brantley case, it would make my case easier.
The roadblock case i'm arguing was set up by an OHP officer for the primary purpose of "seat belt" checks. The OHP officer was assisted in this operation by a Reserve deputy sheriff who was not in uniform and not CLEET certified and a full time deputy who had failed CLEET school.
In Crowley v State the court stated “the plain language of [47 O.S. 2011 § 2-117] does not confer the authority to initiate investigation into crimes a trooper has not yet witnessed.” To me, a "seat belt" check roadblock is an investigation into crimes not yet witnessed. I would believe that this would be relevant authority.
21 O.S. 535 provides that it is a misdemeanor criminal violation to seize, arrest or detain any person against their will without probable cause and was cited in Overall v DPS in support of a false arrest claim. The Overall case was a civil appeals case but cert. was denied by the Oklahoma Supreme Court.
47 O.S. 2-117(B)(7) provides "When on duty, upon reasonable belief that any vehicle is being operated in violation of any provisions of this title, or any other law regulating the operation of vehicles, to require the driver thereof to stop and exhibit his or her driver license and the certificate of registration issued for the vehicle, if required to be carried in the vehicle pursuant to paragraph 3 of subsection A of Section 1113 of this title, and submit to an inspection of such vehicle, the license plates and certificate of registration thereon, if applicable, or to any inspection and test of the equipment of such vehicle;"
I believe that 535 and 2-117(B)(7) are also relevant statutes in my case because they do not allow suspicionless vehicle stops. If I am incorrect, please explain. I will provide a bonus to you for your responses.
I want you to prove that my arguments are incorrect so I can eliminate unnecessary arguments or at the very least, not rely on them to benefit my case. I understand your due and legal process argument and am hoping that I can make my 540B arguments hold water, so to say. But the Overall case explains due and legal process and I hope that case provides support to my probable cause argument I will raise in reference to 535.
"'Due and legal process' is another term for probable cause." Overall v. State ex rel. Dep't of Pub. Safety, 910 P.2d 1087 (Okla. Civ. App. 1995)(Cert. Denied 1996).
Do you think the Overall case supports my "detained against my will without probable cause" argument?
In response to (4):
"Fundamental to statutory construction is to ascertain and give effect to legislative intent." Humphries v. Lewis, 2003 OK 12, ¶ 7, 67 P.3d 333, 335. Legislative intent is determined by the plain language of a statute, and if the language is clear, there is no need for construction. First Am. Bank and Trust v. Oklahoma Indus. Fin. Auth., 1997 OK 155, ¶ 19, 951 P.2d 625, 631-32. The maxim "expressio unius est exclusio alterius," the mention of one thing in a statute impliedly excludes another thing, is used to determine legislative intent. Atkinson v. Halliburton, 905 P.2d 772, 776 (Okla. 1995).
The language of 21 O.S. 2011 § 540B is plain and unambiguous. 21 O.S. 2011 § 540B authorizes a roadblock based upon probable cause to apprehend a specific individual suspected of: eluding a peace officer, escaping from lawful custody and/or committing a felony. However, 21 O.S. 2011 § 540B does not provide peace officers with the authority to initiate vehicle stops by setting up a roadblock to check for violation of law without probable cause or individualized suspicion of criminal wrongdoing. Under the maxim expressio unius est exclusio alterius, the mention of permissible reasons to set up a roadblock operation within 21 O.S. 2011 § 540B impliedly excludes roadblock operations not specifically permitted within the provisions of 21 O.S. 2011 § 540B. Thus, the defendants violated 21 O.S. 2011 § 540B on May 27, 2012 when they set up a roadblock in order to initiate wholesale vehicle stops without first having probable cause or individualized suspicion of criminal wrongdoing.
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