The State of Oklahoma v. Cody Owen Russell

Newkirk, Oklahoma, criminal defense lawyer represented the Defendant charged with possession of child pornography in violation of 21 O.S. 1040.12a.

Digested by Kent Morlan

On September 25, 2023, Blackwell Police Officers executed a search warrant on Russell's residence searching for evidence of child pornography. Finding no one at home and knowing that Russell worked at the Blackwell Walmart store, Deputy Chief Bell went to Walmart, spoke with Russell's supervisor, and then spoke with Russell to inform him a search warrant was being executed at his home. Deputy Chief Bell testified at the motion hearing that he "asked him to come to the residence." Russell testified at the same hearing that Bell told him "[w]e need you to come back to your house with us." Both Bell and Russell agree that Russell was not forced to ride in Bell's police vehicle and that he drove to his residence in his own vehicle, followed by Bell. Russell testified that although he was not told he was required to accompany Bell to his house, "I didn't feel like I had a choice."

Both agree that when they arrived at the house which was about five minutes away, Russell stood toward the bottom of the front steps or on the ground while Bell, and at times another officer or two, stood on the steps or on the porch. A photograph admitted at the suppression hearing shows Russell standing on the grass and sidewalk about three feet from his porch, one officer standing on the steps, and two others standing on the porch.

The record shows that at least one police officer was present out in front of the residence the whole time that Russell was standing there, which both sides agree was about an hour. Both sides also agree that Russell was never handcuffed nor physically restrained at any time, that he was not allowed inside the residence while it was being searched, and that he was never told he had to stay there nor that he could leave. Russell also testified that upon his arrival at his house an officer took and searched his cell phone as well as the car he arrived in. Russell, without receipt of any Miranda warning, answered the officers' questions about the contents of the property, the ownership of electronic devices, and the internet and passcodes, including the code to a safe.

Russell was not arrested that day. The record shows that his electronic devices were forensically examined over the next few months. On February 6, 2024, the State filed an Information charging him with a single count of aggravated possession of child pornography in violation of 21 O.S.2021, § 1040.12a.

It axiomatic that any statement made by one who is interrogated while in custody must be preceded by a valid Miranda warning and waiver before that statement is admissible in the state's case-in-chief. Miranda, 384 U.S. at 444, 471, 478-79. A person is in custody whenever "there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)); see also New York v. Quarles, 467 U.S. 649, 655 (1984).

The order of the District Court suppressing Appellee Russell's statements in Case No. CF-2024-67 is REVERSED and the matter REMANDED to the district court for further proceedings not inconsistent with this decision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2026), the MANDATE is ORDERED issued upon the filing of this decision.