# Asher v. State

> Court of Criminal Appeals of Oklahoma · March 8, 1976 · 546 P.2d 1343

URL: https://www.frixlaw.com/law-library/cases/9625527

## Case

- **Full name:** Jimmy ASHER, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** March 8, 1976
- **Citations:** 546 P.2d 1343; 1976 OK CR 59
- **Precedential status:** Published
- **Opinion:** Dissent by Brett
- **Judges:** Brett, Bussey
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9625527

## Opinion text

BRETT, Presiding Judge
(dissents).
I respectfully dissent to this decision because I consider the affidavit for issuance of the search warrant to be defective. The printed affidavit form alleges considerably more than the affiant was capable of knowing, according to his' testimony at trial. He does, no doubt, possess the capability of detecting marihuana smoke, but beyond that knowledge all that he otherwise asserts in the affidavit constitutes bald conclusions. He had no knowledge whatsoever that the defendant “. wilfully, feloniously and unlawfully keeps the said narcotic drugs, marihuana, and barbiturate and stimulate drugs . . .” nor did he have any knowledge that “. the above described premises is a place resorted to by addicts for the purposes of using narcotic drugs, marihuana, barbiturate and stimulant drugs and the illegal keeping or selling of the same . . .” all of which is set forth in the affidavit executed by the affiant. All that the affiant testified to was that he smelled marihuana burning. Consequently, if the search warrant was invalid, then the evidence offered should have been held to be inadmissible. Therefore, I believe this conviction should be reversed with instructions to dismiss the charge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9625527. Public record. Not legal advice.