LIMON v. STATE

LIMON v. STATE
1969 OK CR 119
453 P.2d 263
Case Number: A-15058
Decided: 04/09/1969
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Phillips Limon was convicted of the crime of Possession of Marijuana, was sentenced to serve three years in the State Penitentiary, and appeals. Reversed and remanded with instructions to dismiss.

Mac Oyler, Oklahoma City, for plaintiff in error.

G.T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 Phillip Limon, Defendant below, tried and convicted by a jury in Oklahoma County for the crime of Possession of Marijuana, and the sentencing was left to the court; said court sentencing the defendant to three years imprisonment in the state penitentiary, and he appeals.

¶2 The conviction in the trial court was based on the introduction of marijuana found 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 standard 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.

¶3 In accordance with Spinelli v. United States, 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.

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