State v. Kook

Court of Appeals of Oregon

State v. Kook

513 P.2d 1189, 14 Or. App. 594, 1973 Ore. App. LEXIS 963

CourtCourt of Appeals of Oregon

DecidedSeptember 14, 1973

Docket20879

StatusPublished

Cited by7 cases

This text of 513 P.2d 1189 (State v. Kook) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Kook, 513 P.2d 1189, 14 Or. App. 594, 1973 Ore. App. LEXIS 963 (Or. Ct. App. 1973).

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Opinion

FOLEY, J.

Defendant was convicted of criminal activity in drugs and was sentenced to 18 months’ imprisonment. He appeals asserting error in the denial of his motion to suppress evidence.

Defendant claims the affidavit for search warrant was insufficient to establish probable cause because the reliability of the informant was not supported. In fact, the reliability of the informant was demonstrated, so the affidavit recites, by police surveillance of the informant’s entry and exit while he made a purchase of a baggie of marihuana at defendant’s house, which marihuana was promptly thereafter delivered by the informant to the affiant police officer. There is no merit to this assignment.

*596 Defendant asserts that since the search warrant did not state that the search conld be made at “anytime of the day or night” the search was unreasonable. Neither is there merit to this contention. OES 141.080, cited by defendant, merely sets forth the form to be used for search warrants and is not to be construed as requiring a search warrant to be served during the daytime, even though the warrant omits the language “any time of the day or night.” ① The warrant authorized immediate search and the record indicates it was served within a matter of a few hours after its issuance.

Defendant’s other assignment, that the search was overbroad, is also without merit. "While some items which were not related to the offense of possession of marihuana, such as vitamin pills and tea, were seized, only those items relevant to the crime charged were introduced in evidence. Thus, the defendant was not prejudiced by seizure of those items. The search warrant authorized a search of the dwelling for marihuana. The eoncealable nature of this substance warranted a thorough search of the house. The search here was no broader in scope than authorized by the warrant. State v. Ronninger, 7 Or App 447, 492 P2d 298 (1971).

Affirmed.

①

The new Oregon Criminal Procedure Code (Oregon Laws 1973, ch 836, § 85), effective January 1, 1974, does provide that search warrants be served between 7 a.m. and 10 p.m. unless otherwise provided in the warrant.

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FOLEY, J.

Defendant was convicted of criminal activity in drugs and was sentenced to 18 months’ imprisonment. He appeals asserting error in the denial of his motion to suppress evidence.

Defendant claims the affidavit for search warrant was insufficient to establish probable cause because the reliability of the informant was not supported. In fact, the reliability of the informant was demonstrated, so the affidavit recites, by police surveillance of the informant’s entry and exit while he made a purchase of a baggie of marihuana at defendant’s house, which marihuana was promptly thereafter delivered by the informant to the affiant police officer. There is no merit to this assignment.

*596 Defendant asserts that since the search warrant did not state that the search conld be made at “anytime of the day or night” the search was unreasonable. Neither is there merit to this contention. OES 141.080, cited by defendant, merely sets forth the form to be used for search warrants and is not to be construed as requiring a search warrant to be served during the daytime, even though the warrant omits the language “any time of the day or night.” ① The warrant authorized immediate search and the record indicates it was served within a matter of a few hours after its issuance.

Defendant’s other assignment, that the search was overbroad, is also without merit. "While some items which were not related to the offense of possession of marihuana, such as vitamin pills and tea, were seized, only those items relevant to the crime charged were introduced in evidence. Thus, the defendant was not prejudiced by seizure of those items. The search warrant authorized a search of the dwelling for marihuana. The eoncealable nature of this substance warranted a thorough search of the house. The search here was no broader in scope than authorized by the warrant. State v. Ronninger, 7 Or App 447, 492 P2d 298 (1971).

Affirmed.

①

The new Oregon Criminal Procedure Code (Oregon Laws 1973, ch 836, § 85), effective January 1, 1974, does provide that search warrants be served between 7 a.m. and 10 p.m. unless otherwise provided in the warrant.

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513 P.2d 1189, 14 Or. App. 594, 1973 Ore. App. LEXIS 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kook-orctapp-1973.

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