State v. McGivney , 36 Or. App. 885 ( 1978 )

585 P.2d 767 (1978) 36 Or.App. 885

STATE of Oregon, Respondent,
v.
Jack L. McGivney, Appellant.

No. 77 6364; CA 10726.

Court of Appeals of Oregon.

Argued and Submitted September 25, 1978. Decided October 30, 1978.

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

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE, RICHARDSON and JOSEPH, JJ.

PER CURIAM.

Defendant makes two assignments of error on appeal: (1) that his confession should have been suppressed, and (2) that the two conditions of the order of probation violated the holding of State v. Fisher, 32 Or. App. 465, 574 P.2d 354, rev. den. 283 Or. 99 (1978).

The first assignment does not warrant discussion. The conditions of probation in question are:

"Shall consent to any test for the purpose of detecting and measuring consumption of alcohol or dangerous drugs, upon the request of any law enforcement officer or other person authorized to perform such tests * * * [and]

"Shall consent to the search of the person, automobile and residential premises with or without a search warrant at any time upon the request of a law enforcement officer or other person authorized to make such a search."

Both conditions are contrary to State v. Fisher, supra, in that the searches provided for by them are not limited to those conducted by or at the direction of participants in the probation process.

Reversed and remanded for resentencing.