The Curious Case of Oklahoma Search and Seizure

Many U.S. law students learn something that should be taught in elementary or secondary school civics: the structure of state courts. Each state has trial courts of general jurisdiction, typically followed by intermediate appellate courts and a single high court. But two states have a curious twist. Texas and Oklahoma each have two high courts: a supreme court for civil matters and a court of criminal appeals for criminal ones.

What happens, then, when it comes to interpreting each state’s constitutional protection against unreasonable search and seizure? Naturally, the issue will often be raised during a criminal prosecution, in a defense motion to suppress. As such, it might ultimately become an issue for the Oklahoma or Texas criminal high court. But the same issue might be raised in a civil lawsuit, whether filed by an arm of the state or an aggrieved individual seeking damages, in which case it will be headed towards the Oklahoma or Texas supreme court. What if either state’s two high courts hear and decide the same matter differently? Then the citizens of that state have different, conflicting rights or remedies — which is a truly odd situation.

And this is just what has happened in Oklahoma. In 1987, in Turner v. City of Lawton, a warrant-based home search yielded illegal drugs. The homeowner was prosecuted for possession with intent to distribute. The criminal prosecution fizzled, however, when a trial court held the warrant affidavit insufficient and, therefore, the search unconstitutional. But the homeowner had been a government employee — a firefighter employed by the city of Lawton — and he had already been dismissed from that employment based upon the illegally obtained drugs. So he filed a civil action for reinstatement, and that trial court held in his favor. Turner had been “terminated based on evidence obtained under a ‘bogus’ warrant,” the supreme court said. “[T]he evidence [was] incompetent, and his dismissal [was] improper.”

All of which teed up a critical question of state constitutional law: the federal Fourth Amendment’s exclusionary rule tends not to apply in civil matters, but what of Oklahoma’s state constitutional analogue? Does it mirror the federal Fourth Amendment? Or does it provide greater constitutional protection for the people of Oklahoma? In Turner, the Oklahoma Supreme Court confidently asserted the latter: the protections of Oklahoma’s Article II, Section 30 are greater than those of the federal Constitution, including that evidence obtained in violation will be suppressed in civil litigation. And the court did not mince words in its holding, which I will quote at some length given the importance of both the words and their tenor:

The Supreme Court of the State of Oklahoma is not required to follow [U.S. Supreme Court caselaw interpreting the Fourth Amendment], because these cases are too restrictive for application under the standards of Oklahoma’s fundamental law. . . . The absolute security granted by the Okla. Const. art. 2, § 30 against unlawful search or seizure exists without reference to the guilt or innocence of the person whose property is searched, and without consideration of whether the proceeding is civil or criminal in nature. . . . Our Constitution does not say that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures can be violated by government agents in civil actions, or that facially defective warrants may be issued if criminal sanctions are not invoked. Courts organized and established for the purpose of enforcing the laws of the state cannot permit an order of termination to stand, after finding a violation of the law and a disregard for the constitutional protection guaranteed to every citizen of this state. . . . This decision is not founded on a desire to protect a possible miscreant, but rather to insure that all citizens are enfolded within the embrace of protections which have remained inviolate since the framers of the Declaration of Independence sought relief from harrassment by swarms of the King’s officers and since the Oklahoma Constitutional Convention recognized the self-evident truths of the time. History bears out the continuing need for this safeguard — one need only look to modern world history and today’s headlines to appreciate the need for prohibitions against unwarranted or unreasonable search or seizure.

Those are strong words of independent constitutional interpretation. Yet they have not swayed Oklahoma’s other high court. Instead, in the years since Turner, the Oklahoma Court of Criminal Appeals (“OCCA”) has repeatedly decided the opposite: Oklahoma’s search and seizure provision will be interpreted in lockstep with federal court interpretation of the Fourth Amendment, even when that means revoking previously declared rights.

In 2007, in Gomez v. State, the OCCA thus eliminated a requirement of exigent circumstances for Oklahoma’s automobile exception, declaring that in recognizing federal supremacy, “the Framers of our [state] Constitution expressed a preference for a harmonious construction of the Oklahoma Constitution with the Constitution of the United States.” This past October, in State v. Velasquez, the court eliminated the suppression remedy for so-called knock and announce violations, declaring the substance of the state analogue “identical to that of the Fourth Amendment” and noting that “this Court has consistently interpreted these two provisions the same.”

Thus, as strange as it is, Oklahomans both enjoy greater protections — at least remedies — against unreasonable search and seizure than the federal rules (when before the Oklahoma Supreme Court) and they simultaneously do not (when before the Oklahoma Court of Criminal Appeals). Naturally, the latter controls the lion’s share of relevant law, and the Oklahoma Supreme Court, as a matter of comity, is unlikely to carve out new divergences even if given the opportunity. So, for now, Oklahoma might be considered a curious lockstep state. Of course, if it wishes to, the OCCA could change that tomorrow. Whatever the future brings, none of this inspires reason to have dueling high courts, so it is not surprising that only two states have made that choice.

Stephen Henderson is the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma.

Suggested Citation: Stephen Henderson, The Curious Case of Oklahoma Search and Seizure, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 11, 2024), https://statecourtreport.org/our-work/analysis-opinion/curious-case-oklahoma-search-and-seizure