Oklahoma Has No Consent-to-Search Statute, and Its Marijuana Act Adds None

Start with the negative, because it is provable rather than assumed. The chapter that would hold a consent rule is Title 22's search warrant chapter. Section 1221 defines a search warrant as a written order in the name of the state, signed by a magistrate and directed to a peace officer, commanding a search for personal property or for a person named in an arrest warrant. Section 1222 lists six grounds on which a warrant may issue, running from stolen or embezzled property to property that will be at a place at a future time. Section 1223 requires probable cause supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched. Section 1231 makes an unexecuted warrant void after ten (10) days, with an exception for a warrant authorising forensic, scientific or digital analysis of items already in law enforcement custody. Section 1237 requires a magistrate to restore property where it is not what the warrant described or where there was no probable cause for the grounds on which the warrant issued. Across all of it, consent never appears. The only place in Oklahoma's vehicle law that uses the phrase "valid consent to search" is 47 O.S. Section 1504(B)(5), and that is an item in a list of circumstances allowing warrantless seizure of a vehicle used in connection with a vehicle identification number offence, not a rule about traffic stops.

The medical marijuana lead deserves to be closed carefully, because several states did put a search clause in their legalisation act and Oklahoma did not. 63 O.S. Section 420(A) gives a licensed patient the right to possess up to three (3) ounces of marijuana on the person, one (1) ounce of concentrated marijuana, seventy-two (72) ounces of edibles, six mature plants and six seedlings, and eight (8) ounces in the residence. Section 427.8 is the section headed "Additional rights, restrictions and prohibitions related to medical marijuana use and possession," and it is where a search clause would sit. Subsection B bars municipal and county governing bodies from restricting or interfering with a licensee's rights to possess, purchase, cultivate or transport within the legal limits. Subsection E protects the right to own, purchase or possess a firearm. Subsection F says a licensee in actual possession of a licence shall not be subject to arrest, prosecution or penalty in any manner under state law or municipal or county ordinance for the medical use of marijuana in accordance with the act. Subsection H restricts employer action. Not one of them says that lawful possession is not grounds for a search, and the act contains no odour-and-probable-cause provision at all. Oklahoma also did not enact a pretextual-stop reform package and has no standalone criminal-procedure section on the subject.

Section 420(B) is worth knowing because it changes what an officer finds worth pursuing. Possession of up to one and one-half (1.5) ounces by a person who can state a medical condition but holds no state-issued licence is a misdemeanor punishable by a fine not to exceed Four Hundred Dollars ($400.00) with no imprisonment, and an officer who is satisfied as to the identity of the person and any other pertinent information shall issue a written citation and release the person on personal recognizance unless another provision of law has been violated.

What Oklahoma does regulate is the basis for the stop. 22 O.S. Section 34.3, enacted by Laws 2000, c. 325, defines racial profiling as the detention, interdiction or other disparate treatment of an individual solely on the basis of racial or ethnic status, forbids any municipal, county or state officer to engage in it, and then states the operative rule: race or ethnicity shall not be the sole factor in determining probable cause to take into custody or arrest, or in constituting the reasonable and articulable suspicion needed to justify a detention or the investigatory stop of a motor vehicle. Subsection D makes a violation a misdemeanor. Subsection E requires every municipal, county and state agency to adopt a detailed written policy defining the elements of racial profiling, prohibiting it, and available for public inspection during normal business hours. Subsection F requires the employing agency to take appropriate action where an investigation shows the officer directly violated that policy.

Section 34.4 supplies the route for a driver. A person who believes a stop or arrest violated Section 34.3 may file a complaint with the Attorney General's Office of Civil Rights Enforcement and also with the district attorney for the county where the stop or arrest occurred. The Attorney General's office forwards a copy to the officer's employer, which must investigate for disciplinary action, criminal prosecution, or both. Section 34.5 requires that office to promulgate complaint procedures and forms in consultation with the Governor's Cabinet Secretary for Safety and Security, and requires the Attorney General to compile an annual report of all complaints received and submit it by January 31 each year to the Governor, the President Pro Tempore of the Senate and the Speaker of the House, with complainants' names redacted.

Two other statutes limit searching in a traffic context. 21 O.S. Section 1290.8(F) says nothing in the Oklahoma Self-Defense Act's licence section authorises an officer to inspect a weapon properly concealed or unconcealed without probable cause that a crime has been committed. 47 O.S. Section 753(A) provides that where a conscious person under arrest refuses a blood or breath test, none shall be given except on the issuance of a search warrant, unless the officer has probable cause to believe the person while intoxicated drove so as to cause death or serious physical injury.

Because there is no consent statute, there is no Oklahoma penalty for an officer who asks for consent badly, and no statutory suppression remedy attached to one. The remedies that do exist are aimed elsewhere. S. Section 1239 makes it a misdemeanor to maliciously and without probable cause procure a search warrant to be issued and executed, and Section 1240 makes it a misdemeanor for a peace officer executing a search warrant to willfully exceed that authority or exercise it with unnecessary severity. Section 1237 requires a magistrate to order property restored where it is not what the warrant described or where the grounds lacked probable cause.

4 to the Attorney General's Office of Civil Rights Enforcement and to the district attorney for the county of the stop, which the officer's employer must then investigate for discipline or prosecution. Suppression of evidence from an unlawful search is argued in the criminal case under the Fourth Amendment and Article 2, Section 30 of the Oklahoma Constitution rather than under any statute, because the Legislature has written none.