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Oregon v. Franklin Brothers

March 12, 1973

STATE OF OREGON, RESPONDENT,
v.
FRANKLIN BROTHERS, APPELLANT



Appeal from Circuit Court, Multnomah County. James R. Ellis, Judge. No. C 72-03-0904 Cr.

Darrell E. Bewley, Portland, argued the cause for appellant. With him on the brief were Francis F. Yunker, and Sherwood, Barnes, O'Dell and Lamon, Portland.

John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.

Thornton

Defendant appeals from a conviction for the crime of criminal activity in drugs (ORS 167.207), contending that the trial judge erred in denying his motion to suppress the illegal drugs and paraphernalia seized by the arresting officers. He maintains that (1) the search was in violation of the knock and announce

statute (ORS 133.290)*fn1 and the Fourth Amendment, and (2) the search warrant did not authorize entry into the private hallway leading to the apartment in which defendant and the drugs and paraphernalia were found.

The evidence was that on or about March 15, 1972, a search warrant based on information from a reliable informant was issued allowing a search of the premises of 327 N. Russell Street, Portland, and the persons of Lorachis Woodfork, aka Paul, and Pat Wright, aka Fredricka. The subject of the search was heroin.

The officers testified that they did not know the quantity of heroin they were seeking, and the search warrant and affidavit for search warrant did not indicate the quantity to be found on the premises.

The premises searched were located in an apartment house. The apartment house was of an older style two-story frame building containing four apartments. The apartment to be searched was on the second floor at the west end of the building. Entrance to the apartment house was through a street-level door. The door was kept locked. On either side of the door was a series of doorbells. A person seeking entry, other than an occupant of one of the apartments, was required to press the doorbell for the proper apartment. The occupant of the apartment would then come to the door and open it for entrance.

The doorways of the two first-floor apartments opened directly into this hallway, and a stairway led

to an upper hallway, into which the doorways of the two upper-floor ...


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