Davis v. State

453 P.2d 261 (1969)

Jack DAVIS, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.

No. A-14700.

Court of Criminal Appeals of Oklahoma.

April 9, 1969.

Hamilton & Carson, Oklahoma City, for plaintiff in error.

Curtis P. Harris, Dist. Atty., James R. McKinney, Asst. Dist. Atty., for defendant in error.

BUSSEY, Judge.

Jack Davis was convicted for the offense of Possession of Marijuana, was sentenced to serve one year in the State Penitentiary, and appeals.

The conviction in the trial court was based on the introduction of marijuana found on the person of the defendant by officers who entered the premises under authority of a search warrant issued by a magistrate, based upon an affidavit which fails to meet the standards set forth in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, delivered by the Supreme Court of the United States on January 27, 1969, which we have discussed in Leonard v. State, Okl.Cr., 453 P.2d 257, handed down this date.

In accordance with Spinelli, supra, we must reverse and remand this case, and since the evidence was seized under authority of a search warrant based upon an affidavit not in compliance with Spinelli, supra, the trial court is instructed to dismiss this cause. Reversed and remanded with instructions to dismiss.

BRETT, Presiding Judge.

See Special Concurring opinion in Leonard v. State, delivered this date.