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Oregon v. Middaugh

March 5, 1973

STATE OF OREGON, RESPONDENT,
v.
WILLIAM THOMAS MIDDAUGH, APPELLANT



Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge. No. C 72-07-2257 Cr.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.

Charles Robinowitz, Portland, filed a brief amicus curiae for the American Civil Liberties Union of Oregon.

Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.

Thornton

Defendant appeals from his conviction for criminal activity in drugs, ORS 167.207, contending that the trial court should have granted his motion to suppress evidence. Here, as in his motion, the defendant asserts that the dangerous drug introduced against him, amphetamine sulfate, is the product of an illegal search and seizure.

After the denial of the suppression motion, and trial before the court without a jury, the court found the defendant guilty, suspended the imposition of sentence and placed the defendant on probation for a term of three years. As a condition of probation the trial court required that the defendant repay costs and attorney's fees which were expended by the county in the defendant's behalf since, at the time of trial, he was indigent. ORS 161.665, 161.675, 161.685.

On appeal the defendant challenges this condition of his probation, arguing that the requirement of repayment is unconstitutional. This court recently has resolved this issue, holding that such a repayment

condition is valid. State v. Fuller, 12 Or App 152, 504 P2d 1393, Sup Ct review denied (1973).

The facts are as follows: The day of defendant's arrest, July 20, 1972, his wife, Janet Middaugh, went to the Portland police to report that her husband had assaulted her and one of their children earlier that day. An arrest warrant charging assault was sworn out against the defendant.

Mrs. Middaugh then told Officer Laven of the Women's Division that another child was still at home with the defendant, that the defendant "was coming down off a trip," and that she was afraid he would harm the child. Mrs. Middaugh also told Officer Laven that drugs could be found at the home.

Officer Laven testified that she then asked Mrs. Middaugh if she would be willing to show the officer where the drugs were kept. Mrs. Middaugh agreed. She testified that she ...


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