How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Legal-Guru Your Own Question

Legal-Guru
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1270
Experience:  Experienced Criminal Trial Attorney since 1998.
Type Your Criminal Law Question Here...
Legal-Guru is online now
A new question is answered every 9 seconds

For Legal-Guru - If I were to raise the argument that Brantley

Customer Question

For Legal-Guru - If I were to raise the argument that Brantley v. State, 548 P. 2d 675 (OK CR 1976) was abrogated by the enactment of 21 O.S. 540B, would there be any merit to this argument. I'm asking this question based upon Oklahoma law with checkpoint type roadblock operations being the issue in dispute.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Guru replied 1 year ago.
That's an interesting argument. While it is certainly not frivolous and one that I would make, I would be surprised if it prevailed. If I had to put a number on the chances of that argument prevailing, I would say about 5%.

You have to overcome Lookingbill v. State, 2007 OK CR 7, 157 P.3d 130 where OCCA looks to the Supreme Court's fourth amendment jurisprudence on "checkpoints" rather than statutory authority for "roadblocks". That being said, I don't know if anyone has ever made the precise argument of statutory abrogation to OCCA.
Customer: replied 1 year ago.

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.


 


 

Expert:  Legal-Guru replied 1 year ago.
(1) I'm not saying you're wrong ...just trying to be realistic as to your chances to success. An important part of being an advocate is being objective enough to see and understand the other side's argument and evaluate your likelihood of success. Even though you have good arguments, you are fighting an uphill battle.

(2) I'm familiar with Dodson. I think it is your best analogous case where a search & seizure act was deemed constitutional but not authorized by Oklahoma Statutes.

(3) 21 O.S. 535 does not say "without probable cause". It says "without due and legal process". BIG distinction. The U.S. Supreme Court has said police officers have the ability to conduct brief detentions based upon "reasonable suspicion" which is less than probable cause or in the checkpoint scenario without any particularized suspicion at all. That is "due and legal process" unless you can convince the court that 540B limits that authority.

(4) 47 O.S. 2-117(B)(7) helps your argument although other subsections of that section are pretty broad grants of authority to enforcing traffic laws. Be prepared for the counterargument regarding those other subsections.

(5) The context of Crowley was quite a bit different than a checkpoint scenario. I get what your saying, but I don't think the court would find a checkpoint to be an "investigation" as it was in Crowley. That's kind of the point with checkpoints -- no particularized suspicion. I don't believe it adds to your argument, and what doesn't help detracts from your main points.
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1270
Experience: Experienced Criminal Trial Attorney since 1998.
Legal-Guru and 7 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

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?

Expert:  Legal-Guru replied 1 year ago.
Sorry for the delay ... been swamped today ... it will be tomorrow before I can respond.
Expert:  Legal-Guru replied 1 year ago.
Again I apologize for the delay. Haven't been on here in a few days.

I can't prove an argument incorrect because legal arguments are not scientific experiments or mathematical proofs. The law is open to interpretation. As a prime example, every year the nine U.S. Supreme Court Justices issue one or more 5-4 decisions and sometimes 3-2-2-1 decisions or some other odd vote. Almost without fail every one of their majority, dissenting, plurality, and concurring opinions are well reasoned, articulate and persuasive.

I can, however, give you my opinion as to strengths and weaknesses of your argument.

I like your abrogation argument and trying to analogize Dodson. I don't think either Crowley or Overall are particularly helpful to you. Regarding Overall:

(1) Opinions from the Oklahoma Court of Civil Appeals (COCA) have no binding precedential value. Thus, no court whether a district court or appellate court, even other COCA panels, is bound by their opinions. They are an intermediate appellate court not a "court of last resort" so they are inferior to the Oklahoma Supreme Court and generally thought of as inferior to the Oklahoma Court of Criminal Appeals (OCCA) although they are not in the same appellate pathway. Their persuasive precedential authority is particularly weak when it comes to interpretation of criminal laws.

(2) When COCA said in Overall that, "'Due and legal process' is another term for probable cause" it was correct in the context of that case because the plaintiffs were arrested, but incorrect as a blanket statement relating to all detentions. An extensive body of case law exists in Oklahoma relating to Terry stops, reasonable suspicion, and to a lesser extent traffic checkpoints. OCCA is not going to re-write decades of search and seizure jurisprudence based upon one poorly worded sentence from a COCA opinion. The plaintiffs in Overall were arrested. They were not temporarily detained at a traffic checkpoint. Unfortunately, I believe relying on Overall would detract from your better arguments.

(3) Let me make a suggestion ... you are obviously extremely intelligent and are raising arguments many attorneys would not think to raise. However, I think your emotional attachment to the issue has you somewhat blinded to the counter-arguments. I would suggest you spend a day pretending to the government's attorney thinking about how you would counter your own arguments, and also maybe put yourself in the judge's shoes and see what arguments would be persuasive to you. Also, remember that the law is less technical than non-lawyers typically think. Most judges try to reach a "reasonable" interpretation of the law.

(4) If I were the government's attorney, I would argue that the purpose of 540B is not to abrogate Brantley or SCOTUS jurisprudence. The purpose is to criminalize and make it a felony offense to run those roadblocks set up for the purposes contained in 540B. If the legislature wished to abrogate Brantley and SCOTUS search & seizure law, they could have explicitly done so by saying no other roadblocks/checkpoints may be established. They did not.
Customer: replied 1 year ago.


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.


Expert:  Legal-Guru replied 1 year ago.
Thank you for the bonus.

Yes, you have articulated your best argument concisely and persuasively. Just understand that the maxim you cite to is not the only rule of statutory construction. It's not unusual to have competing rules of statutory construction. For instance, legislative abrogation generally has to be explicit and not by implication although, as with almost anything in the law, there have been exceptions.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.