Luker v. State

• Decision Date: 27 December 1972
• Docket Number: No. A--17376,A--17376
• Citation: 504 P.2d 1238
• Parties: Tom LUKER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1238

504 P.2d 1238

Tom LUKER, Appellant, v.STATE of Oklahoma, Appellee.

No. A--17376.

Court of Criminal Appeals of Oklahoma.

Dec. 27, 1972.

Rehearing Denied Jan. 15, 1973.

Thomas G. Hanlon, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Kenneth L. Delashaw, Jr., Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellant, Tom Luker, hereinafter referred to as defendant, was convicted in the District Court of Tulsa County, Case No. CRF 71--1116, of possession of a narcotic drug, with punishment fixed at a fine of $1,000.Judgment and sentence was imposed on October 1, 1971, and this appeal perfected therefrom.

It was charged by information that on June 17, 1971, the defendant had in his possession and under his control a narcotic drug, codeine phosphate, in violation of the Uniform Controlled Dangerous Substances Act.

Essentially, the evidence established that a Tulsa County Deputy Sheriff, an assistant district attorney, and an investigator from the district attorney's office, went to the offices of the defendant at approximately 4:30 p.m. on July 17, 1971.Pursuant to a warrant, the officers searched the offices, known as the Luker Clinic, occupied jointly by the defendant and his brother who were chiropractic physicians.In the private office of the defendant the officers located a Girl Scout cookie box in a credenza three feet to the left of defendant's personal desk.Inside the cookie box was found several bottles of pills bearing a federal narcotic seal.Chemical analysis of the pills revealed that they contained codeine phosphate, which is a class A narcotic drug.

For the defense, Glenn Luker, brother of defendant, testified that he and defendant shared the suite of offices known as the Luker Clinic, where they shared in common a reception room, X-ray room, and treatment rooms.Glenn Luker testified that approximately a week to fifteen days before defendant's arrest, an individual appeared at the office with a package similar to that in which the pills were found.According to Glenn Luker this individual advised him that the package contained tablets which he desired that defendant would look over.Glenn Luker testified that he then took the package and placed it in the credenza located in the defendant's office.Glenn Luker was not sure whether he had remembered to tell the defendant about the package.

The defendant, Tom Luker, testified that he had never seen the package and had no knowledge of its presence or its contents.

It is defendant's first contention that the trial court erred in overruling defendant's motion to suppress, based on a claim that the affidavit in support of the search warrant was constitutionally insufficient.Defendant argues that the affidavit is insufficient because the informant had not been used previously, there was nothing to show that his information was accurate, and that the description of the premises to be searched was inadequate.

We find no merit to the defendant's contention that the affidavit was constitutionally insufficient to provide probable cause necessary to issue a search warrant.In substance the affidavit alleges that the affiant-officer was informed by an individual named James Sipes, that Sipes and others had burglarized a medical physician's office and had taken therefrom certain narcotic drugs.Sipes informed the affiant-officer that he had delivered some of these narcotic drugs to a particular office to a man identified to him as Dr. Luker.The cases relied upon by the defendant are primarily concerned with situations where a search warrant is sought pursuant to nothing more than an undisclosed informant's tip.The affidavit for search warrant in the instant case was not based on the tip of an undisclosed informant, but rather on the specified factual information...