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STATE v. ELLIOTT

486 P.2d 1296 (1971)

STATE of Oregon, Appellant, v. Theodore Charles ELLIOTT, Respondent.

Court of Appeals of Oregon, Department 1.

Decided July 15, 1971.

Attorney(s) appearing for the Case

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

David L. Smedema, Corvallis, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Defendant, indicted for unlawful possession of narcotics and a dangerous drug, moved to suppress evidence (the drugs) on the ground they were obtained as the result of an unlawful search and seizure. The trial court suppressed and the state appeals pursuant to ORS 138.060(4).

No evidence was presented at the hearing on the motion to suppress so the facts to be considered are those set forth in the affidavit...

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