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UNITED STATES v. OCHELTREE

No. 79-1542.

622 F.2d 992 (1980)

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Dean OCHELTREE, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

As Modified on Denial of Rehearing September 24, 1980.

Attorney(s) appearing for the Case

Stephen E. Hoffman, Frank & Milchen, San Diego, Cal., argued, for defendant-appellant; Howard B. Frank, San Diego, Cal., on brief.

Peter K. Nunez, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Peter K. Nunez, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Before MERRILL and FERGUSON, Circuit Judges, and SMITH, District Judge.

MERRILL, Circuit Judge:

Appellant was convicted of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In the court below he sought unsuccessfully to suppress certain evidence as the fruit of an unlawful search. He then waived jury trial and consented to have the question of guilt decided on the basis of the evidence received on motion to suppress. We agree with appellant that the motion to suppress should have...

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