The State of Oklahoma v. Kelly Burtrum

Enid, Oklahoma criminal defense lawyer represented the Defendant charged with first-degree manslaughter.

¶1 Appellee Kelly Burtrum was charged by Amended Information with First Degree Manslaughter, in violation of 21 O.S.2011, § 711(1), in the District Court of Garfield County, Case No. CF-2020-385. Burtrum was bound over at preliminary hearing held on September 17, 2021, before the Honorable Brian N. Lovell, Special Judge.



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¶8 At the close of the preliminary hearing, defense counsel entered a demurrer to the evidence arguing that Burtrum could not be found to have given his consent to the blood draw because he was never asked to give his consent; the troopers clearly did not think they needed Burtrum's consent. The prosecutor argued in turn that the Blood Test Officer's Affidavit indicated that Burtrum was advised of his right not to consent to the blood draw, which is contra to Trooper Barney's testimony.



¶9 The Honorable Brian N. Lovell, Special Judge, found that the exclusionary rule, the purpose of which is to deter police misconduct, does not apply in this case as there was no police misconduct to deter by suppressing the evidence. The judge found that "Trooper Cottrill's reliance on [ 47 O.S.2011, §] 10-104(B) was objectively reasonable and unquestionably done in good faith." The judge overruled the demurrer and bound Burtrum over for trial.



¶10 Prior to trial, defense counsel filed a motion the district court treated as a motion to suppress the blood test. At the motion hearing, the State called Troopers Cottrill and Barney to provide testimony supplemental to the testimony they gave at the preliminary hearing. Trooper Cottrill testified that after being notified that Kirkhart had died, he advised Burtrum that because there was a fatality, state law required them to draw his blood. Trooper Cottrill said that Burtrum was obviously distraught but very cooperative; Burtrum replied, "Whatever you need." Trooper Cottrill stated that he was not required to ask Burtrum for consent to draw his blood because it was required by state law.



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¶14 The Fourth Amendment protects the "right of the people to be secure in their persons ... against unreasonable searches" and provides that "no warrants shall issue, but upon probable cause." U.S. Const. amend, IV. Drawing a suspect's blood is a search of the person, and therefore requires a warrant based upon probable cause, unless it falls within one of the narrowly-drawn exceptions to the warrant requirement. See Birchfield v. North Dakota , 579 U.S. 438, 455, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (the taking of a blood sample is a search); Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (a warrantless blood draw is reasonable only if it falls within a recognized exception to the warrant requirement).



¶15 One exception to the warrant requirement is that a search is not unreasonable where it is preceded by a free and voluntary consent. Burkham v. State , 1975 OK CR 150, ¶ 5, 538 P.2d 1121, 1122 ; Riggle v. State , 1978 OK CR 121, ¶ 20, 585 P.2d 1382, 1386. "[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). See also Burton v. State , 2009 OK CR 10, ¶ 14, 204 P.3d 772, 776 ("where the State claims consent as an exception to the warrant requirement, the proof offered by the State must be clear and convincing that the waiver was a free and voluntary act").



¶16 "The question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When considering the totality of the circumstances, some of the relevant considerations include:



physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer reads a defendant his Miranda rights, obtains consent pursuant to a claim of lawful authority, or informs a defendant of his or her right to



[530 P.3d 73]



refuse consent also are factors to consider in determining whether consent given was voluntary under the totality of the circumstances.



United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (internal citations omitted).





State v. Burtrum, 530 P.3d 68 (Okla. Crim. App. 2023)

The ruling of the district court sustaining Appellee's Motion to Quash is AFFIRMED .