State v. Henderson ( 1972 )

PER CURIAM.

Defendant was convicted of possession of marihuana. ORS 474.020. The marihuana introduced at trial was seized pursuant to a search warrant. It consisted of marihuana plants taken from the backyard of defendant’s residence and marihuana and a pipe taken from within his residence building.

On appeal he argues that the affidavit and the warrant were insufficient to support the search of or seizure from either the backyard or the house. It is not necessary to reach this question.

A police officer observed, from where he had a right to be, plants which he identified as marihuana growing in the defendant’s backyard. He had the right to seize them forthwith. In so far as these plants were concerned the search warrant was surplusage. We need not consider the adequacy of the affidavit or warrant in connection with the items seized from within the residence because the plants alone were sufficient to sustain the conviction.

Affirmed.