Chapter 133 — Arrest and Related Procedures; Search and Seizure; Extradition

2011 EDITION

ARREST AND RELATED PROCEDURES

PROCEDURE IN CRIMINAL MATTERS GENERALLY

GENERAL PROVISIONS

133.005 Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450

133.007 Sufficiency of information or complaint

133.015 Contents of information or complaint

133.020 Magistrate defined

133.030 Who are magistrates

133.033 Peace officer; community caretaking functions

CRIMINAL CITATIONS

133.055 Criminal citation; exception for domestic disturbance; notice of rights

133.060 Cited person to appear before magistrate; effect of failure to appear; arrest warrant

133.065 Service of criminal citation

133.066 Criminal citations generally

133.068 Contents of criminal citation issued without complaint

133.069 Contents of criminal citation issued with complaint; nonconformance

133.070 Criminal citation where arrest without warrant is authorized for ordinance violation

133.073 Electronic filing of criminal citation; court rules

133.076 Failure to appear on criminal citation

WARRANT OF ARREST

133.110 Issuance; citation

133.120 Authority to issue warrant

133.140 Content and form of warrant

ARREST

133.220 Who may make arrest

133.225 Arrest by private person

133.235 Arrest by peace officer; procedure

133.239 Arrest by parole and probation officer; procedure

133.245 Arrest by federal officer; procedure

133.310 Authority of peace officer to arrest without warrant

133.315 Liability of peace officer making arrest

133.318 Providing false foreign restraining order; false representation to peace officer

133.340 Authority to order arrest for crime committed in presence of magistrate

133.360 Arrests on warrant or order transmitted by telegraph

133.375 Definitions for ORS 133.375 to 133.381

133.377 Arrest of persons for cruelty to animals; immunity of peace officer providing care for animal

133.379 Duty of peace officer to arrest and prosecute violators of cruelty to animals laws; disposition of fines

133.381 Procedure in arrests for violation of certain restraining orders; arrest of person not in county where order or warrant issued

133.400 Recording of custodial interviews

PEACE OFFICERS OF ANOTHER STATE

(Adjoining State)

133.405 Definitions for ORS 133.405 to 133.408; provision of law enforcement services

133.407 Immunities and liabilities; supervision; compensation; training

133.408 Application of ORS 133.405 and 133.407

(Uniform Act on Fresh Pursuit)

133.410 Short title

133.420 Definitions for ORS 133.410 to 133.440

133.430 Authority to make arrest in fresh pursuit

133.440 Proceedings following arrest in fresh pursuit

PROCEDURES AFTER ARREST

133.450 Return of arrest warrant; release decision

133.455 Receipts for property taken from person in custody; penalty

133.460 Forfeiture of conveyances used unlawfully to conceal or transport stolen property

133.465 Seizure of stolen animals or other property being transported; proceedings against person arrested

133.470 Sale of seized property; rights of owner and lienholder

133.475 Notice to owner

133.485 Perishable property; livestock or fowls

133.495 Retention of property to answer order of court

133.515 Interpreter to be made available to person with a disability

SEARCH AND SEIZURE

(Generally)

133.525 Definitions for ORS 133.525 to 133.703

133.535 Permissible objects of search and seizure

133.537 Protection of things seized; liability of agency

(Search and Seizure Pursuant to Warrant)

133.545 Issuance and execution of search warrant

133.555 Hearing

133.565 Contents of search warrant

133.575 Execution of warrant

133.595 List of things seized

133.605 Use of force in executing warrants

133.615 Return of the warrant

133.617 “Mobile tracking device” defined

133.619 Execution of warrant authorizing mobile tracking device

133.621 Medical procedures; immunity from liability for performing

(Disposition of Things Seized)

133.623 Handling and disposition of things seized

133.633 Motion for return or restoration of things seized

133.643 Ground for motion for return or restoration of things seized

133.653 Postponement of return or restoration; appellate review

133.663 Disputed possession rights

(Evidentiary Exclusion)

133.673 Motions to suppress evidence

133.693 Challenge to truth of evidence

133.703 Identity of informants

(Preservation of Biological Evidence)

133.705 Definitions for ORS 133.705 to 133.717

133.707 Custodian’s obligation to preserve biological evidence; effect of inability to produce in judicial proceeding; rules

133.709 Notice of intent to dispose; motion to preserve

133.713 Inventory; right to review

133.715 Order; appeal

133.717 Provision of notice or order to defendant

INTERCEPTION OF COMMUNICATIONS

133.721 Definitions for ORS 41.910 and 133.721 to 133.739

133.723 Records confidential

133.724 Order for interception of communications; application; grounds for issuance; contents of order; progress reports

133.726 Interception of oral communication without order; order for interception of oral communication; application; grounds for issuance; contents of order; penalties

133.727 Proceeding under expired order prohibited

133.729 Recording intercepted communications; method; delivery to court; custody

133.731 Inventory; contents; inspection of intercepted communications

133.733 Procedure for introduction as evidence

133.735 Suppression of intercepted communications; procedure; grounds; appeal

133.736 Motion to suppress intercepted oral communication; right of state to appeal

133.737 Disclosure and use of intercepted communications

133.739 Civil damages for willful interception, disclosure or use of communications; attorney fees; defense; effect on other remedies

UNIFORM CRIMINAL EXTRADITION ACT

133.743 Definitions for ORS 133.743 to 133.857; appointment of legal counsel to assist Governor

133.745 Determination of security requirements to carry out extradition

133.747 Fugitives from other states; Governor to cause arrest and delivery of criminals

133.753 Form of demand

133.757 Investigation of demand and report

133.763 Facts documents must show

133.767 Extradition of person not present in demanding state at time of commission of crime

133.773 Governor’s warrant of arrest

133.777 Execution of the warrant

133.783 Authority of arresting officer to command assistance

133.787 Rights of arrested person

133.793 Penalty for disobedience to ORS 133.787

133.797 Confinement of prisoner

133.803 Arrest prior to requisition

133.805 Arrest without warrant

133.807 Commitment to await arrest on requisition

133.809 Release

133.813 Proceedings in absence of arrest under executive warrant within specified time

133.815 Forfeiture; recovery thereon

133.817 Persons under criminal prosecution in this state at time of requisition

133.823 When guilt of accused may be inquired into

133.825 Governor may recall warrant

133.827 Warrant to agent to return fugitive from this state

133.833 Application for requisition; filing and forwarding of papers

133.835 Extradition of persons imprisoned or awaiting trial in another state or who have left the demanding state under compulsion

133.837 Appointment of agent to return fugitive from this state who waives extradition

133.839 Immunity from civil process in certain civil cases

133.843 Written waiver of extradition proceedings

133.845 Nonwaiver by this state

133.847 Trial of extradited person for other crimes

133.853 Construction of Act

133.855 Short title

133.857 Payment of agent’s expenses

ARREST AND RETURN ACCOUNT

133.865 Arrest and Return Account

PENALTIES

133.992 Penalties

GENERAL PROVISIONS

133.005 Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450. As used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise:

(1) “Arrest” means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A “stop” as authorized under ORS 131.605 to 131.625 is not an arrest.

(2) “Federal officer” means a special agent or law enforcement officer employed by a federal agency who is empowered to effect an arrest with or without a warrant for violations of the United States Code and who is authorized to carry firearms in the performance of duty.

(3) “Peace officer” means:

(a) A member of the Oregon State Police;

(b) A sheriff, constable, marshal, municipal police officer or reserve officer or a police officer commissioned by a university under ORS 352.383;

(c) An investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state;

(d) An investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon; or

(e) An authorized tribal police officer as defined in section 1, chapter 644, Oregon Laws 2011.

(4) “Reserve officer” means an officer or member of a law enforcement agency who is:

(a) A volunteer or employed less than full-time as a peace officer commissioned by a city, port, school district, mass transit district, county, county service district authorized to provide law enforcement services under ORS 451.010, the Criminal Justice Division of the Department of Justice, the Oregon State Lottery Commission or the Governor or a member of the Department of State Police;

(b) Armed with a firearm; and

(c) Responsible for enforcing the criminal laws and traffic laws of this state or laws or ordinances relating to airport security. [1973 c.836 §62; 1979 c.656 §1; 1981 c.808 §1; 1991 c.67 §25; 1993 c.254 §1; 1995 c.651 §6; 2009 c.11 §8; 2011 c.506 §7; 2011 c.641 §1; 2011 c.644 §13]

Note: The amendments to 133.005 by section 39, chapter 644, Oregon Laws 2011, become operative July 1, 2015. See section 58, chapter 644, Oregon Laws 2011, as amended by section 77, chapter 644, Oregon Laws 2011. The text that is operative on and after July 1, 2015, is set forth for the user’s convenience.

133.005. As used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise:

(3) “Peace officer” means:

(a) A member of the Oregon State Police;

(b) A sheriff, constable, marshal, municipal police officer or reserve officer or a police officer commissioned by a university under ORS 352.383;

(c) An investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state; or

(d) An investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon.

(4) “Reserve officer” means an officer or member of a law enforcement agency who is:

(b) Armed with a firearm; and

(c) Responsible for enforcing the criminal laws and traffic laws of this state or laws or ordinances relating to airport security.

133.007 Sufficiency of information or complaint.(1) An information or complaint is sufficient if it can be understood therefrom that:

(a) The defendant is named, or if the name of the defendant cannot be discovered, the defendant is described by a fictitious name, with the statement that the real name of the defendant is unknown to the complainant.

(b) The offense was committed within the jurisdiction of the court, except when, as provided by law, the act, though done without the county in which the court is held, is triable within.

(c) The offense was committed at some time prior to the filing of the information or complaint and within the time limited by law for the commencement of an action therefor.

(2) The information or complaint shall not contain allegations that the defendant has previously been convicted of any offense that might subject the defendant to enhanced penalties.

(3) Words used in a statute to define an offense need not be strictly followed in the information or complaint, but other words conveying the same meaning may be used. [1973 c.836 §63; 2005 c.22 §101]

133.010 [Amended by 1965 c.508 §1; repealed by 1973 c.836 §358]

133.015 Contents of information or complaint. An information or complaint shall contain substantially the following:

(1) The name of the court in which it is filed;

(2) The title of the action;

(3) A statement that accuses the defendant or defendants of the designated offense or offenses;

(4) A separate accusation or count addressed to each offense charged, if there be more than one;

(5) A statement in each count that the offense charged therein was committed in a designated county;

(6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time;

(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended; and

(8) The verification by the complainant and the date of the signing of the information or complaint. [1973 c.836 §64]

133.020 Magistrate defined. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime.

133.030 Who are magistrates. The following persons are magistrates:

(1) Judges of the Supreme Court;

(2) Judges of the Court of Appeals;

(3) Judges of the circuit court;

(4) County judges and justices of the peace; and

(5) Municipal judges. [Amended by 1961 c.724 §27; 1969 c.198 §59; 1977 c.746 §1; 1995 c.658 §72]

133.033 Peace officer; community caretaking functions. (1) Except as otherwise expressly prohibited by law, any peace officer is authorized to perform community caretaking functions.

(2) As used in this section, “community caretaking functions” means any lawful acts that are inherent in the duty of the peace officer to serve and protect the public. “Community caretaking functions” includes, but is not limited to:

(a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:

(A) Prevent serious harm to any person or property;

(B) Render aid to injured or ill persons; or

(b) The right to stop or redirect traffic or aid motorists or other persons when such action reasonably appears to be necessary to:

(A) Prevent serious harm to any person or property;

(B) Render aid to injured or ill persons; or

(3) Nothing contained in this section shall be construed to limit the authority of a peace officer that is inherent in the office or that is granted by any other provision of law. [1991 c.959 §1; 2011 c.506 §9; 2011 c.644 §14]

133.037 [1971 c.743 §289; 1973 c.836 §33; renumbered 131.655]

133.040 [Repealed by 1965 c.508 §8]

133.045 [1969 c.244 §1; 1973 c.836 §65; 1974 c.42 §1; repealed by 1999 c.1051 §72]

133.050 [Repealed by 1959 c.426 §1]

CRIMINAL CITATIONS

133.055 Criminal citation; exception for domestic disturbance; notice of rights. (1) A peace officer may issue a criminal citation to a person if the peace officer has probable cause to believe that the person has committed a misdemeanor or has committed any felony that is subject to misdemeanor treatment under ORS 161.705. The peace officer shall deliver a copy of the criminal citation to the person. The criminal citation shall require the person to appear at the court of the magistrate before whom the person would be taken pursuant to ORS 133.450 if the person were arrested for the offense.

(2)(a) Notwithstanding the provisions of subsection (1) of this section, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.

(b) When the peace officer makes an arrest under paragraph (a) of this subsection, the peace officer is not required to arrest both persons.

(c) When a peace officer makes an arrest under paragraph (a) of this subsection, the peace officer shall make every effort to determine who is the assailant or potential assailant by considering, among other factors:

(A) The comparative extent of the injuries inflicted or the seriousness of threats creating a fear of physical injury;

(B) If reasonably ascertainable, the history of domestic violence between the persons involved;

(D) The potential for future assaults.

(d) As used in this subsection, “assault” includes conduct constituting strangulation under ORS 163.187.

(3) Whenever any peace officer has reason to believe that a family or household member, as defined in ORS 107.705, has been abused as defined in ORS 107.705 or that an elderly person or a person with a disability has been abused as defined in ORS 124.005, that officer shall use all reasonable means to prevent further abuse, including advising each person of the availability of a shelter or other services in the community and giving each person immediate notice of the legal rights and remedies available. The notice shall consist of handing each person a copy of the following statement:

______________________________________________________________________________

IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE OR ABUSE, you can ask the district attorney to file a criminal complaint. You also have the right to go to the circuit court and file a petition requesting any of the following orders for relief: (a) An order restraining your attacker from abusing you; (b) an order directing your attacker to leave your household; (c) an order preventing your attacker from entering your residence, school, business or place of employment; (d) an order awarding you or the other parent custody of or parenting time with a minor child or children; (e) an order restraining your attacker from molesting or interfering with minor children in your custody; (f) an order awarding you other relief the court considers necessary to provide for your or your children’s safety, including emergency monetary assistance. Such orders are enforceable in every state.

You may also request an order awarding support for minor children in your care or for your support if the other party has a legal obligation to support you or your children.

You also have the right to sue for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other out-of-pocket expenses for injuries sustained and damage to your property. This can be done without an attorney in the small claims department of a court if the total amount claimed is under $10,000.

Similar relief may also be available in tribal courts.

For further information you may contact:_____.

______________________________________________________________________________ [1969 c.244 §2; 1977 c.845 §1; 1981 c.779 §1; 1991 c.303 §1; 1995 c.666 §23; 1997 c.707 §28; 1999 c.617 §1; 1999 c.738 §8; 1999 c.1051 §54; 2003 c.264 §8; 2007 c.70 §33; 2007 c.125 §7; 2011 c.595 §53b; 2011 c.666 §3]

133.060 Cited person to appear before magistrate; effect of failure to appear; arrest warrant. (1) A person who has been served with a criminal citation shall appear before a magistrate of the county in which the person was cited at the time, date and court specified in the citation, which shall not be later than 30 days after the date the citation was issued.

(2) If the cited person fails to appear at the time, date and court specified in the criminal citation, and a complaint or information is filed, the magistrate shall issue a warrant of arrest, upon application for its issuance, upon the person’s failure to appear. [1969 c.244 §5; 1983 c.661 §1; 1997 c.548 §1; 1999 c.1051 §55]

133.065 Service of criminal citation. If a criminal citation is issued as described in ORS 133.055, the peace officer shall serve one copy on the person arrested and shall, as soon as practicable, file a duplicate copy with the magistrate specified in ORS 133.055 along with proof of service. [1969 c.244 §6; 1999 c.1051 §58]

133.066 Criminal citations generally. (1) A criminal citation may include a complaint or may be issued without a form of complaint. If a criminal citation is issued without a complaint, the citation must be in the form provided by ORS 133.068. If a criminal citation is issued with a complaint, the citation must be in the form provided by ORS 133.069.

(2) A criminal citation may be issued with a complaint only if a procedure for the issuance of a citation with a complaint has been authorized by the district attorney for the county in which the crime is alleged to have been committed.

(3) A complaint or information may be filed with the court before or after the issuance of a criminal citation without a complaint. Nothing in this section affects the requirement that a complaint or information be filed for the crime charged.

(4) More than one crime may be charged in a single criminal citation. However, if a defendant is to be charged with driving while under the influence of intoxicants in violation of ORS 813.010, a separate criminal citation must be used for the charge of driving while under the influence of intoxicants and that citation may not be used to charge the defendant with the commission of any other crime.

(5) Uniform citation forms for crimes shall be adopted by the Supreme Court under ORS 1.525. In adopting those forms, the Supreme Court may combine the requirements for criminal citations under this section and the requirements for violation citations under ORS 153.045. A crime and a violation may not be charged on the same citation form. [1999 c.1051 §57]

133.067 [1991 c.824 §2; 1995 c.292 §2; repealed by 1999 c.1051 §72]

133.068 Contents of criminal citation issued without complaint. A criminal citation issued without a form of complaint must contain:

(1) The name of the court at which the cited person is to appear.

(2) The name of the person cited.

(3) A brief description of the offense for which the person is charged, the date, time and place at which the offense occurred, the date on which the citation was issued, and the name of the peace officer who issued the citation.

(4) The date, time and place at which the person cited is to appear in court, and a summons to so appear.

(5) Whether a complaint or information had been filed with the court at the time the citation was issued.

(6) If the arrest was made by a private party, the name of the arresting person.

(7) The following:

______________________________________________________________________________

READ CAREFULLY

This citation is not a complaint or an information. A complaint or an information may be filed and you will be provided a copy thereof at the time of your first appearance. You MUST appear in court at the time set in the citation. IF YOU FAIL TO APPEAR AND A COMPLAINT OR INFORMATION HAS BEEN FILED, THE COURT WILL IMMEDIATELY ISSUE A WARRANT FOR YOUR ARREST.

______________________________________________________________________________ [1999 c.1051 §60]

133.069 Contents of criminal citation issued with complaint; nonconformance. (1) A criminal citation issued with a form of complaint must contain:

(a) The name of the court at which the cited person is to appear.

(b) The name of the person cited.

(A) The name of the court, the name of the state or of the city or other public body in whose name the action is brought and the name of the defendant.

(B) A statement or designation of the crime that can be readily understood by a person making a reasonable effort to do so and the date, time and place at which the crime is alleged to have been committed.

(C) A form of certificate in which the peace officer must certify that the peace officer has sufficient grounds to believe, and does believe, that the person named in the complaint committed the offense specified in the complaint. A certificate conforming to this subparagraph shall be deemed equivalent to a sworn complaint.

(d) The date on which the citation was issued, and the name of the peace officer who issued the citation.

(e) The date, time and place at which the person cited is to appear in court, and a summons to so appear.

(f) If the arrest was made by a private party, the name of the arresting person.

(2) The district attorney for the county shall review any criminal citation issued with a form of complaint that is to be filed in a circuit or justice court. The review must be done before the complaint is filed.

(3) If the complaint does not conform to the requirements of this section, the court shall set the complaint aside upon motion of the defendant made before entry of a plea. A pretrial ruling on a motion to set aside may be appealed by the state.

(4) A court may amend a complaint at its discretion. [1999 c.1051 §61; 2001 c.870 §10; 2005 c.566 §1]

133.070 Criminal citation where arrest without warrant is authorized for ordinance violation. (1) In any instance in which a person is subject to arrest without a warrant for violation of an ordinance of a county, city or municipal corporation, any peace officer who is authorized to make the arrest may make the arrest or in lieu of taking the person into custody the officer may issue and serve a criminal citation to the person to appear at any court within the jurisdictional unit by which the officer is authorized to act.

(2) Any criminal citation issued under this section must meet the requirements of ORS 133.055 to 133.076.

(3) The person cited shall appear before the court in which the person’s appearance is required at the time, date and court specified in the criminal citation. If the person fails to appear at that time and a complaint is filed, the court shall issue a warrant for the person’s arrest upon application for its issuance. [1969 c.244 §8; 1983 c.661 §2; 1999 c.1051 §62]

133.072 [1983 c.661 §10; repealed by 1999 c.1051 §72]

133.073 Electronic filing of criminal citation; court rules. (1) Notwithstanding ORS 133.065, a peace officer, following procedures established by court rule, may file a criminal citation with or without a form of complaint with the court by electronic means, without an actual signature of the officer, in lieu of filing a duplicate paper copy of the citation. A peace officer who files a criminal citation under this section is deemed to certify the citation and any complaint included with the citation by that filing and has the same rights, responsibilities and liabilities in relation to the citation and any complaint included with the citation as an officer has in relation to citations and complaints that are filed with the court in paper form and are certified by actual signature.

(2) A court may allow electronic filing of criminal citations as described under subsection (1) of this section. Procedures established to allow electronic filing of criminal citations under this section shall be established by court rule and shall include procedures necessary to ensure that:

(a) An electronically filed criminal citation with or without a form of complaint includes all information required on a uniform citation adopted by the Supreme Court under ORS 1.525.

(b) An electronically filed criminal citation with or without a form of complaint is verifiable as being filed by a specific peace officer.

(c) Members of the public can obtain copies of and review a criminal citation with or without a form of complaint that is electronically filed and maintained under this section in the same manner as the manner used for those filed on paper.

(3) For a criminal citation with a form of complaint issued under ORS 133.069, the district attorney’s review required by ORS 133.069 and, if necessary, amendments for legal sufficiency, must be completed before the electronic filing of the citation with the form of complaint is made with a court under this section. [2005 c.566 §15]

133.075 [1969 c.244 §9; 1973 c.836 §66; 1983 c.661 §3; repealed by 1999 c.1051 §63 (133.076 enacted in lieu of 133.075)]

133.076 Failure to appear on criminal citation. (1) A person commits the offense of failure to appear on a criminal citation if the person has been served with a criminal citation issued under ORS 133.055 to 133.076 and the person knowingly fails to do any of the following:

(a) Make an appearance in the manner required by ORS 133.060.

(b) Make appearance at the time set for trial in the criminal proceeding.

(2) Failure to appear on a criminal citation is a Class A misdemeanor. [1999 c.1051 §64 (enacted in lieu of 133.075)]

133.077 [1991 c.592 §2; repealed by 1999 c.1051 §72]

133.080 [1969 c.244 §7; 1971 c.404 §5; 1975 c.451 §172; 1979 c.477 §2; 1983 c.338 §886; repealed by 1999 c.1051 §72]

133.100 [1971 c.404 §1; 1973 c.836 §67; repealed by 1999 c.1051 §72]

WARRANT OF ARREST

133.110 Issuance; citation. If an information or a complaint has been filed with the magistrate, and the magistrate is satisfied that there is probable cause to believe that the person has committed the crime specified in the information or complaint, the magistrate shall issue a warrant of arrest. If the offense is subject to issuance of a criminal citation under ORS 133.055, the court may authorize a peace officer to issue and serve a criminal citation in lieu of arrest. [Amended by 1969 c.244 §3; 1973 c.836 §68; 1983 c.661 §4; 1999 c.1051 §66]

133.120 Authority to issue warrant. A judge of the Supreme Court or the Court of Appeals may issue a warrant of arrest for any crime committed or triable within the state, and any other magistrate mentioned in ORS 133.030 may issue a warrant for any crime committed or triable within the territorial jurisdiction of the magistrate’s court. [Amended by 1969 c.198 §60; 1973 c.836 §69; 1977 c.746 §2; 1983 c.661 §5]

133.130 [Repealed by 1973 c.836 §358]

133.140 Content and form of warrant. A warrant of arrest shall:

(1) Be in writing;

(2) Specify the name of the person to be arrested, or if the name is unknown, shall designate the person by any name or description by which the person can be identified with reasonable certainty;

(3) State the nature of the crime;

(4) State the date when issued and the county or city where issued;

(5) Be in the name of the State of Oregon or the city where issued, be signed by and bear the title of the office of the magistrate having authority to issue a warrant for the crime charged;

(6) Command any peace officer, or any parole and probation officer for a person who is being supervised by the Department of Corrections or a county community corrections agency, to arrest the person for whom the warrant was issued and to bring the person before the magistrate issuing the warrant, or if the magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county;

(7) Specify that the arresting officer may enter premises, in which the officer has probable cause to believe the person to be arrested to be present, without giving notice of the officer’s authority and purpose, if the issuing judge has approved a request for such special authorization; and

(8) Specify the amount of security for release. [Amended by 1961 c.443 §1; 1973 c.836 §70; 1977 c.746 §3; 1983 c.661 §6; 2005 c.668 §3]

133.150 [Repealed by 1961 c.443 §3]

133.160 [Amended by 1959 c.664 §28; repealed by 1961 c.443 §3]

133.170 [Amended by 1961 c.443 §2; repealed by 1973 c.836 §358]

133.210 [Repealed by 1973 c.836 §358]

ARREST

133.220 Who may make arrest. An arrest may be effected by:

(1) A peace officer under a warrant;

(2) A peace officer without a warrant;

(3) A parole and probation officer under a warrant as provided in ORS 133.239;

(4) A parole and probation officer without a warrant for violations of conditions of probation, parole or post-prison supervision;

(5) A private person; or

(6) A federal officer. [Amended by 1981 c.808 §2; 2005 c.668 §4]

133.225 Arrest by private person. (1) A private person may arrest another person for any crime committed in the presence of the private person if the private person has probable cause to believe the arrested person committed the crime. A private person making such an arrest shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to a peace officer.

(2) In order to make the arrest a private person may use physical force as is justifiable under ORS 161.255. [1973 c.836 §74]

133.230 [Repealed by 1971 c.743 §432]

133.235 Arrest by peace officer; procedure. (1) A peace officer may arrest a person for a crime at any hour of any day or night.

(2) A peace officer may arrest a person for a crime, pursuant to ORS 133.310 (1), whether or not such crime was committed within the geographical area of such peace officer’s employment, and the peace officer may make such arrest within the state, regardless of the situs of the offense.

(3) The officer shall inform the person to be arrested of the officer’s authority and reason for the arrest, and, if the arrest is under a warrant, shall show the warrant, unless the officer encounters physical resistance, flight or other factors rendering this procedure impracticable, in which case the arresting officer shall inform the arrested person and show the warrant, if any, as soon as practicable.

(4) In order to make an arrest, a peace officer may use physical force as justifiable under ORS 161.235, 161.239 and 161.245.

(5) In order to make an arrest, a peace officer may enter premises in which the officer has probable cause to believe the person to be arrested to be present.

(6) If after giving notice of the officer’s identity, authority and purpose, the officer is not admitted, the officer may enter the premises, and by a breaking, if necessary.

(7) A person may not be arrested for a violation except to the extent provided by ORS 153.039 and 810.410. [1973 c.836 §71; 1981 c.818 §1; 1999 c.1051 §67]

133.239 Arrest by parole and probation officer; procedure. (1) As used in this section, “parole and probation officer” has the meaning given that term in ORS 181.610.

(2) A parole and probation officer may arrest a person if the person is being supervised by the Department of Corrections or a county community corrections agency.

(3)(a) A parole and probation officer making an arrest under this section shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to a peace officer.

(b) The parole and probation officer retains authority over the arrested person only until the person appears before a magistrate or until the law enforcement agency having general jurisdiction over the area in which the arrest took place assumes responsibility for the person. [2005 c.668 §6]

133.240 [Repealed by 1973 c.836 §358]

133.245 Arrest by federal officer; procedure. (1) A federal officer may arrest a person:

(a) For any crime committed in the federal officer’s presence if the federal officer has probable cause to believe the person committed the crime.

(b) For any felony or Class A misdemeanor if the federal officer has probable cause to believe the person committed the crime.

(d) When the federal officer has received positive information in writing or by telephone, telegraph, teletype, radio, facsimile machine or other authoritative source that a peace officer holds a warrant for the person’s arrest.

(2) The federal officer shall inform the person to be arrested of the federal officer’s authority and reason for the arrest.

(3) In order to make an arrest, a federal officer may use physical force as is justifiable and authorized of a peace officer under ORS 161.235, 161.239 and 161.245.

(4)(a) A federal officer making an arrest under this section without unnecessary delay shall take the arrested person before a magistrate or deliver the arrested person to a peace officer.

(b) The federal officer retains authority over the arrested person only until the person appears before a magistrate or until the law enforcement agency having general jurisdiction over the area in which the arrest took place assumes responsibility for the person.

(5) A federal officer when making an arrest for a nonfederal offense under the circumstances provided in this section shall have the same immunity from suit as a state or local law enforcement officer.

(6) A federal officer is authorized to make arrests under this section upon certification by the Department of Public Safety Standards and Training that the federal officer has received proper training to enable that officer to make arrests under this section. [1981 c.808 §3; 1993 c.254 §2; 1995 c.79 §48; 1997 c.853 §34]

133.250 [Repealed by 1973 c.836 §358]

133.260 [Repealed by 1973 c.836 §358]

133.270 [Repealed by 1973 c.836 §358]

133.280 [Repealed by 1971 c.743 §432]

133.290 [Repealed by 1973 c.836 §358]

133.300 [Repealed by 1973 c.836 §358]

133.310 Authority of peace officer to arrest without warrant. (1) A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed any of the following:

(a) A felony.

(b) A misdemeanor.

(c) An unclassified offense for which the maximum penalty allowed by law is equal to or greater than the maximum penalty allowed for a Class C misdemeanor.

(d) Any other crime committed in the officer’s presence.

(2) A peace officer may arrest a person without a warrant when the peace officer is notified by telegraph, telephone, radio or other mode of communication by another peace officer of any state that there exists a duly issued warrant for the arrest of a person within the other peace officer’s jurisdiction.

(3) A peace officer shall arrest and take into custody a person without a warrant when the peace officer has probable cause to believe that:

(a) There exists an order issued pursuant to ORS 30.866, 107.095 (1)(c) or (d), 107.716, 107.718, 124.015, 124.020, 163.738 or 419B.845 restraining the person;

(b) A true copy of the order and proof of service on the person has been filed as required in ORS 107.720, 124.030, 163.741 or 419B.845; and

(4) A peace officer shall arrest and take into custody a person without a warrant if:

(a) The person protected by a foreign restraining order as defined by ORS 24.190 presents a copy of the foreign restraining order to the officer and represents to the officer that the order supplied is the most recent order in effect between the parties and that the person restrained by the order has been personally served with a copy of the order or has actual notice of the order; and

(b) The peace officer has probable cause to believe that the person to be arrested has violated the terms of the foreign restraining order.

(5) A peace officer shall arrest and take into custody a person without a warrant if:

(a) The person protected by a foreign restraining order as defined by ORS 24.190 has filed a copy of the foreign restraining order with a court or has been identified by the officer as a party protected by a foreign restraining order entered in the Law Enforcement Data System or in the databases of the National Crime Information Center of the United States Department of Justice; and

(b) The peace officer has probable cause to believe that the person to be arrested has violated the terms of the foreign restraining order.

(6) A peace officer shall arrest and take into custody a person without a warrant if the peace officer has probable cause to believe:

(a) The person has been charged with an offense and is presently released as to that charge under ORS 135.230 to 135.290; and

(b) The person has failed to comply with a no contact condition of the release agreement. [Amended by 1963 c.448 §1; 1973 c.836 §72; 1974 c.42 §2; 1977 c.845 §2; 1979 c.522 §2; 1981 c.780 §8; 1981 c.818 §2; 1983 c.338 §887; 1983 c.661 §7; 1987 c.730 §4a; 1989 c.171 §15; 1991 c.208 §2; 1991 c.222 §2; 1993 c.626 §10; 1993 c.731 §3; 1995 c.353 §11; 1995 c.666 §24; 1997 c.249 §45; 1997 c.863 §2; 1999 c.250 §2; 1999 c.1040 §8; 1999 c.1051 §68; 2005 c.753 §1]

133.315 Liability of peace officer making arrest. (1) No peace officer shall be held criminally or civilly liable for making an arrest pursuant to ORS 133.055 (2) or 133.310 (3) or (5) provided the peace officer acts in good faith and without malice.

(2) No peace officer shall be criminally or civilly liable for any arrest made under ORS 133.310 (4) if the officer reasonably believes that:

(a) A document or other writing supplied to the officer under ORS 133.310 (4) is an accurate copy of a foreign restraining order as defined by ORS 24.190 and is the most recent order in effect between the parties; and

(b) The person restrained by the order has been personally served with a copy of the order or has actual notice of the order. [1977 c.845 §9; subsection (2) enacted as 1991 c.222 §3; 1999 c.250 §3]

Note: 133.315 (2) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 133 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

133.318 Providing false foreign restraining order; false representation to peace officer. (1) Any person who provides to a peace officer a copy of a writing purporting to be a foreign restraining order as defined by ORS 24.190 knowing that no valid foreign restraining order is in effect shall be guilty of a Class A misdemeanor.

(2) Any person who represents to a peace officer that a foreign restraining order is the most recent order in effect between the parties or that the person restrained by the order has been personally served with a copy of the order or has actual notice of the order knowing that the representation is false commits a Class A misdemeanor. [1991 c.222 §4; 1999 c.250 §4; 2011 c.506 §11; 2011 c.644 §15]

133.320 [Repealed by 1973 c.836 §358]

133.330 [Repealed by 1973 c.836 §358]

133.340 Authority to order arrest for crime committed in presence of magistrate. When a crime is committed in the presence of a magistrate, the magistrate may, by a verbal or written order, command any person to arrest the offender and may thereupon proceed as if the offender had been brought before the magistrate upon a warrant of arrest. [Amended by 1973 c.836 §73; 1983 c.661 §8]

133.350 [Repealed by 1973 c.836 §358]

133.360 Arrests on warrant or order transmitted by telegraph. Whenever any person has been indicted or accused on oath of any public offense, or thereof convicted, and a warrant of arrest has been issued, the magistrate issuing the warrant, or any judge of the Supreme Court, or of the Court of Appeals, or of a circuit or county court, may indorse thereon an order signed by the magistrate or judge authorizing the service thereof by telegraph. Thereupon the warrant and order may be sent by telegraph to any marshal, sheriff, constable or police officer and on receipt of the telegraphic copy thereof, as defined in ORS 165.840, by any such officer, the officer shall have the same authority and be under the same obligations to arrest, take into custody and detain the person as if the original warrant of arrest with the proper direction for its service duly indorsed thereon had been placed in the hands of the officer. The telegraphic copy shall be entitled to full faith and credit and shall have the same force and effect in all courts and places as the original. Prior to indictment or conviction, no such order shall be made by any officer unless in the judgment of the officer there is probable cause to believe the accused person guilty of the offense charged, but the making of such order by any officer is prima facie evidence of the regularity thereof and of all proceedings prior thereto. The original warrant and order, or a copy thereof certified by the officer making the order, shall be preserved in the telegraph office from which the same is sent and in telegraphing the same, the original or the certified copy may be used. [Amended by 1969 c.198 §61; 1991 c.67 §26]

133.370 [Repealed by 1971 c.743 §432]

133.375 Definitions for ORS 133.375 to 133.381. As used in ORS 133.375 to 133.381:

(1) “Animal” has the meaning given that term in ORS 167.310.

(2) “Owner” or “person” includes corporations as well as individuals. [Formerly 770.210; 1985 c.662 §11; 2011 c.9 §6]

133.377 Arrest of persons for cruelty to animals; immunity of peace officer providing care for animal. (1) Any person violating ORS 167.315 to 167.333, 167.340, 167.355, 167.365 or 167.428 may be arrested and held without warrant, in the same manner as in the case of persons found breaking the peace.

(2) The person making the arrest, with or without warrant, shall use reasonable diligence to give notice thereof to the owners of the animals found in the charge of the person arrested, and shall properly care and provide for such animals until the owners or their duly authorized agents take charge of them; provided, such owners or agents shall claim and take charge of the animals within 60 days from the date of said notice.

(3) The person making such arrest shall have a lien upon the animals for the expense of such care and provisions.

(4) Any peace officer who cares or provides for an animal pursuant to this section and any person into whose care an animal is delivered by a peace officer acting under this section shall be immune from civil or criminal liability based upon an allegation that such care was negligently provided. [Formerly 770.230; 1983 c.648 §2; 1985 c.662 §12; 2001 c.926 §16; 2009 c.550 §4]

133.379 Duty of peace officer to arrest and prosecute violators of cruelty to animals laws; disposition of fines. (1) It shall be the duty of any peace officer to arrest and prosecute any violator of ORS 167.315 to 167.333, 167.340, 167.355, 167.365 or 167.428 for any violation which comes to the knowledge or notice of the officer.

(2) All fines and forfeitures collected for violations of ORS 167.315 to 167.333, 167.340, 167.355, 167.365 or 167.428, except for forfeitures of the animal as provided under ORS 167.350 or 167.435, shall be paid into the county treasury of the county in which it is collected, and placed to the credit of the county school fund. [Formerly 770.240; 1983 c.648 §3; 1985 c.662 §13; 2001 c.926 §17; 2009 c.550 §5]

133.380 [Repealed by 1971 c.743 §432]

133.381 Procedure in arrests for violation of certain restraining orders; arrest of person not in county where order or warrant issued. (1) When a peace officer arrests a person pursuant to ORS 133.310 (3) or pursuant to a warrant issued under ORS 33.075 by a court or judicial officer for the arrest of a person charged with contempt for violating an order issued under ORS 107.095 (1)(c) or (d), 107.716, 107.718, 124.015 or 124.020, if the person is arrested in a county other than that in which the warrant or order was originally issued, the peace officer shall take the person before a magistrate as provided in ORS 133.450. If it becomes necessary to take the arrested person to the county in which the warrant or order was originally issued, the costs of such transportation shall be paid by that county.

(2) If a person arrested for the reasons described in subsection (1) of this section is subsequently found subject to the imposition of sanctions for contempt, the court, in addition to any other sanction it may impose, may order the person to repay a county all costs of transportation incurred by the county pursuant to subsection (1) of this section. [1979 c.162 §2; 1981 c.780 §9; 1991 c.724 §24; 1995 c.666 §25]

133.400 Recording of custodial interviews. (1) A custodial interview conducted by a peace officer in a law enforcement facility shall be electronically recorded if the interview is conducted in connection with an investigation into aggravated murder as defined in ORS 163.095 or a crime listed in ORS 137.700 or 137.707.

(2) Subsection (1) of this section does not apply to:

(a) A statement made before a grand jury;

(b) A statement made on the record in open court;

(d) A custodial interview conducted by a federal law enforcement officer in compliance with the laws of the United States;

(e) A statement that was spontaneously volunteered and did not result from a custodial interview;

(f) A statement made during arrest processing in response to a routine question;

(g) A law enforcement agency that employs five or fewer peace officers;

(h) A custodial interview conducted in connection with an investigation carried out by a corrections officer, a youth corrections officer or a staff member of the Oregon State Hospital in the performance of the officer’s or staff member’s official duties of treatment, custody, control or supervision of individuals committed to or confined in a place of incarceration or detention; or

(i) A custodial interview for which the state demonstrates good cause for the failure to electronically record the interview.

(3)(a) If the state offers an unrecorded statement made under the circumstances described in subsection (1) of this section in a criminal proceeding alleging the commission of aggravated murder or a crime listed in ORS 137.700 or 137.707 and the state is unable to demonstrate, by a preponderance of the evidence, that an exception described in subsection (2) of this section applies, upon the request of the defendant, the court shall instruct the jury regarding the legal requirement described in subsection (1) of this section and the superior reliability of electronic recordings when compared with testimony about what was said and done.

(b) The court may not exclude the defendant’s statement or dismiss criminal charges as a result of a violation of this section.

(c) If each of the statements made by the defendant that the state offers into evidence is recorded, the court may not give a cautionary jury instruction regarding the content of the defendant’s statements.

(4) A law enforcement agency that creates an electronic recording of a custodial interview shall preserve the recording until the defendant’s conviction for the offense is final and all direct, post-conviction relief and habeas corpus appeals are exhausted, or until the prosecution of the offense is barred by law.

(5) The state shall provide an electronic copy of a defendant’s custodial interview to a defendant in accordance with ORS 135.805 to 135.873. Providing an electronic copy of the custodial interview to the defendant constitutes compliance with ORS 135.815 (1)(b), and the state is not required to provide the defendant with a transcript of the contents of the interview. Unless the court orders otherwise, the defendant’s attorney may not copy, disseminate or republish the electronic copy of the custodial interview, except to provide a copy to an agent of the defendant’s attorney for the limited purpose of case preparation.

(6) An electronic recording of a custodial interview, and any transcription of the recording, that is certified as containing a complete recording, or a complete transcription, of the entirety of the custodial interview, from the advisement of constitutional rights to the conclusion of the custodial interview, is admissible in any pretrial or post-trial hearing for the purpose of establishing the contents of a statement made in the recording and the identity of the person who made the statement, if the statement is otherwise admissible. A certification that complies with this subsection satisfies the requirements of ORS 40.505 and 132.320 for the recording or transcription. This subsection does not prohibit a party from calling a witness to testify regarding the custodial interview.

(7) As used in this section:

(a) “Custodial interview” means an interview in which the person questioned is in custody and is required to be advised of the person’s constitutional rights.

(b) “Good cause” includes, but is not limited to, situations in which:

(A) The defendant refused, or expressed an unwillingness, to have the custodial interview electronically recorded;

(B) The failure to electronically record the custodial interview was the result of equipment failure and a replacement device was not immediately available;

(C) The person operating the recording equipment believed, in good faith, that the equipment was recording the custodial interview;

(D) Electronically recording the custodial interview would jeopardize the safety of any person or the identity of a confidential informant;

(E) Exigent circumstances prevented the recording of the custodial interview; or

(F) The peace officer conducting the custodial interview reasonably believed, at the time the custodial interview began, that the custodial interview was conducted in connection with a crime other than aggravated murder as defined in ORS 163.095 or a crime listed in ORS 137.700 or 137.707.

(c) “Law enforcement facility” means a courthouse, building or premises that is a place of operation for a municipal police department, county sheriff’s office or other law enforcement agency at which persons may be detained in connection with a juvenile delinquency petition or criminal charge. [2009 c.488 §1]

PEACE OFFICERS OF ANOTHER STATE

(Adjoining State)

133.405 Definitions for ORS 133.405 to 133.408; provision of law enforcement services. (1) As used in ORS 133.405 to 133.408:

(a) “Adjoining state” means California, Idaho, Nevada or Washington.

(b) “Certified peace officer” means a regularly employed peace officer or police officer from an adjoining state, including a peace officer or police officer employed by a local government of an adjoining state.

(2) A certified peace officer is a peace officer and a police officer in this state when:

(a) The officer enters this state in order to provide, or attempt to provide, law enforcement services described in subsection (3) of this section; and

(b) The law enforcement services occur within 50 miles from the contiguous border of this state and the adjoining state where the officer is employed.

(3) Subsection (2) of this section applies when the certified peace officer is providing, or attempting to provide, law enforcement services under any of the following circumstances:

(a) In response to a request for law enforcement services initiated by an Oregon sheriff, constable, marshal, municipal police officer or member of the Oregon State Police.

(b) In response to a reasonable belief that emergency law enforcement services are necessary for the preservation of life, and a request for services by an Oregon sheriff, constable, marshal, municipal police officer or member of the Oregon State Police for those services is impractical to obtain under the circumstances. The certified police officer shall obtain authorization from an Oregon law enforcement agency having jurisdiction over the location where the services were provided as soon as is practicable after the services have been provided.

(c) For the purpose of assisting an Oregon sheriff, constable, marshal, municipal police officer or member of the Oregon State police in providing emergency service in response to criminal activity, traffic accidents, emergency incidents or other similar public safety problems, whether or not an Oregon sheriff, constable, marshal, municipal police officer or member of the Oregon State Police is present at the scene of the incident.

(4) When a certified peace officer exercises any authority granted under this section, the officer shall submit, as soon as is practicable, a written report concerning the incident to the Oregon law enforcement agency having primary jurisdiction over the geographic area in which the incident occurred. Oregon law enforcement agencies may establish reporting procedures and forms to facilitate reporting required under this subsection.

(5) This section does not confer upon a certified peace officer the authority to enforce Oregon traffic or motor vehicle laws. [2011 c.472 §1]

Note: 133.405 to 133.408 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 133 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

133.407 Immunities and liabilities; supervision; compensation; training. (1) A certified peace officer who exercises authority under ORS 133.405 and the officer’s employing agency are subject to the same civil immunities and liabilities as a peace officer and the peace officer’s employing agency in Oregon.

(2) A certified peace officer who exercises authority under ORS 133.405 is subject to the supervisory control of and limitations imposed by the certified peace officer’s employing agency unless supervisory control is temporarily delegated to an Oregon sheriff, constable, marshal, municipal police officer or member of the Oregon State Police.

(3) The certified peace officer may not receive separate compensation from an Oregon law enforcement agency for providing law enforcement services within this state under ORS 133.405.

(4) Notwithstanding any other provision of law, any person who is acting as a certified peace officer in this state in the manner described in ORS 133.405 is deemed to have met the requirements of ORS 133.005 (3) if the certified peace officer has completed the basic training required for peace officers in the adjoining state in which the certified peace officer is employed. [2011 c.472 §2]

Note: See note under 133.405.

133.408 Application of ORS 133.405 and 133.407. (1) ORS 133.405 and 133.407 do not limit the authority of an officer of another state to make an arrest or take other action under ORS 133.410 to 133.440. ORS 133.405 and 133.407 apply only in the absence of a mutual aid agreement between the State of Oregon and an adjoining state, or between local governments of this state and adjoining states, or any combination thereof, to which the employing agency is a party.

(2) A certified peace officer exercising authority under ORS 133.405, and the certified peace officer’s employing agency, are not officers or employees of the State of Oregon for purposes of ORS 30.260 to 30.300. [2011 c.472 §3]

Note: See note under 133.405.

(Uniform Act on Fresh Pursuit)

133.410 Short title. ORS 133.410 to 133.440 may be cited as the Uniform Act on Fresh Pursuit.

133.420 Definitions for ORS 133.410 to 133.440. As used in ORS 133.410 to 133.440:

(1) “Fresh pursuit” includes fresh pursuit as defined by the common law; the pursuit of a person who has committed a felony or who reasonably is suspected of having committed a felony; and the pursuit of a person suspected of having committed a felony, though no felony actually has been committed, if there is reasonable ground for believing that a felony has been committed. It does not necessarily imply instant pursuit, but pursuit without unreasonable delay.

(2) “State” includes the District of Columbia.

133.430 Authority to make arrest in fresh pursuit. (1) Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that the person is believed to have committed a felony in the other state has the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.

(2) This section shall not be construed to make unlawful any arrest in this state which otherwise would be lawful.

133.440 Proceedings following arrest in fresh pursuit. If an arrest is made in this state by an officer of another state in accordance with ORS 133.430, the officer shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful, the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state. If the magistrate determines that the arrest was unlawful, the magistrate shall discharge the person arrested.

PROCEDURES AFTER ARREST

133.450 Return of arrest warrant; release decision. (1) If the defendant is arrested in the county in which the warrant issued, the defendant shall be taken before the magistrate who issued the warrant, or, if the magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county; but if the defendant is arrested in another county and the crime charged in the warrant is a misdemeanor, the officer shall, upon being required by the defendant, take the defendant before a magistrate of that county, who shall make a release decision as provided in ORS 135.230 to 135.290. The officer shall at the same time deliver to the magistrate the warrant with the return of the officer indorsed and subscribed by the officer.

(2) After making the release decision, the magistrate shall certify that fact on the warrant and return the warrant and release agreement or security release to the officer having charge of the defendant. The officer shall then discharge the defendant from arrest and without delay deliver the warrant and release agreement or security release to the clerk of the court in the other county at which the defendant is required to appear.

(3) If the defendant is to be released and does not agree to the release agreement, or a security deposit is not forthwith given, the officer shall take the defendant before the magistrate who issued the warrant or some other magistrate in that county, as provided in this section, together with the warrant. [Formerly 133.520]

133.455 Receipts for property taken from person in custody; penalty. (1) Whenever any jailer, peace officer or health officer takes or receives any money or other valuables from any person in custody for safekeeping or for other purposes, the officer or jailer receiving such valuables or money forthwith shall tender one of duplicate receipts for the property being surrendered to the person in custody. If possible, the person in custody shall countersign both the original and duplicate receipts. If the person is unable to sign the receipts or receive the duplicate thereof, the same shall be signed by and delivered to the person when reasonably possible. A file of the original receipts shall be kept for at least six months after the money or valuables have been returned to the person in custody, the agent or representative of the person or other person entitled to the same.

(2) A person violating any of the provisions of subsection (1) of this section commits a Class B misdemeanor. [Formerly 142.210]

133.460 Forfeiture of conveyances used unlawfully to conceal or transport stolen property. (1) Any boat, vehicle, aircraft or other conveyance used by or with the knowledge of the owner or the person operating or in charge thereof, other than stolen conveyances, in the unlawful transportation of livestock, livestock carcasses, poultry or other personal property, as provided in ORS 142.070, or in which any such personal property unlawfully possessed is kept or concealed by or with the knowledge of such owner or person operating or in charge thereof, shall be forfeited to the state as provided in this section.

(2) If the person arrested under ORS 133.465 is not the owner of the vehicle or conveyance seized, the sheriff shall make reasonable effort to determine the name and address of the owner. If the sheriff is able to determine the name and address of the owner, the sheriff shall immediately notify the owner by registered or certified mail of the seizure and of the owner’s rights and duties under this section and ORS 133.465.

(3) A person notified under subsection (2) of this section, or any other person asserting a claim to rightful possession of the vehicle or conveyance seized, except the defendant, may move the court having ultimate trial jurisdiction over any crime charged in connection with the seizure, to return the vehicle or conveyance to the movant.

(4) The movant shall serve a copy of the motion upon the district attorney of the county in which the vehicle or conveyance is in custody. The court shall order the vehicle or conveyance returned to the movant, unless the court is satisfied by clear and convincing evidence that the movant knowingly consented to the unlawful use that resulted in the seizure. If the court does not order the return of the vehicle or conveyance, the movant shall obtain the return only as provided in ORS 133.465.

(5) If the court orders the return of the vehicle or conveyance to the movant, the movant shall not be liable for any towing or storage costs incurred as a result of the seizure.

(6) If the court does not order the return of the vehicle or conveyance under subsection (4) of this section, and the arrested person is convicted for any offense in connection with the seizure, the vehicle or conveyance shall be subject to forfeiture as provided in this section and ORS 133.470 and 133.475. [Formerly 142.080]

133.465 Seizure of stolen animals or other property being transported; proceedings against person arrested. (1) When any peace officer discovers any person in the act of transporting any stolen live meat food animal or fowl, any meat food animal or fowl carcass, or any part thereof, or any wool, hides, grain or any other article which has been stolen in or upon any vehicle, boat, aircraft or conveyance of any kind, the officer shall seize all such articles or things found therein, take possession of the vehicle or other conveyance and arrest any person in charge thereof.

(2) The officer shall at once proceed against the person arrested, under the provisions of the law which has been violated, in any court having competent jurisdiction and shall deliver the vehicle or other conveyance to the sheriff of the county in which such seizure has been made.

(3) The vehicle or other conveyance shall be returned to the owner if the owner is the person arrested, upon execution of a good and valid bond, with sufficient sureties in a sum double the value of the property, which bond shall be approved by the court and shall be conditioned upon the return of said property to the custody of the sheriff at a time to be specified by the court. [Formerly 142.090]

133.470 Sale of seized property; rights of owner and lienholder. (1) The court, upon conviction of the person arrested pursuant to ORS 133.465, shall, unless the bona fide owner or a bona fide lienholder registers an objection as provided in this section, subject to the ownership rights of innocent third parties, order a sale of the property at public auction by the sheriff of the county where it was seized.

(2) The sheriff, after deducting the expense of keeping the property and the cost of sale, shall pay, according to their priorities, all liens which are established by intervention or otherwise at such hearing or in other proceedings brought for said purpose and shall pay the balance of the proceeds into the general fund of the county.

(3) No claim of ownership or of any right, title or interest in the vehicle or other conveyance shall be held invalid unless the state shows to the satisfaction of the court, by clear and convincing evidence that the claimant had knowledge that the vehicle or other conveyance was used or to be used in violation of law.

(4) No such conveyance shall be sold under this section and unless the state proves to the court, by clear convincing evidence that the person asserting a claim of ownership or other right, title or interest in the conveyance had knowledge that such conveyance was to be used to convey stolen property, in which case the court shall order the vehicle or other conveyance to be released. All liens against property sold under this section or ORS 133.475 or 133.485 shall be transferred from the property to the proceeds of the sale of the property. [Formerly 142.100]

133.475 Notice to owner. If no one claims the vehicle or other conveyance, as provided in ORS 133.470, the taking of the same with description thereof shall be advertised in some daily newspaper published in the city or county where taken or, if there is no daily newspaper published in such county or city, in a newspaper having weekly circulation in the city or county once a week for two weeks and by notice posted in three public places near the place of seizure. The legal owner, in the case of a motor vehicle, if licensed by the State of Oregon, as shown by the name and address of the legal owner in the records of the Department of Transportation, shall be notified by mail. If no claimant appears within 10 days after the last publication of the advertisement, the property shall be sold and the proceeds, after deducting the expenses and costs, shall be paid into the general fund of the county. [Formerly 142.110]

133.485 Perishable property; livestock or fowls. If any of the property seized, as provided in ORS 133.465, is perishable, or livestock or fowls where the cost of keeping is great, the sheriff shall, upon order of the court, sell the same in the manner in which property is sold on execution. [Formerly 142.120]

133.495 Retention of property to answer order of court. The proceeds of the sale mentioned in ORS 133.485 and other property seized shall be retained by liens, if not released on bond, to answer any order that may be entered by the court upon the trial of the person arrested. [Formerly 142.130]

133.510 [Repealed by 1965 c.508 §8]

133.515 Interpreter to be made available to person with a disability. (1) As used in this section:

(a) “Person with a disability” means a person who cannot readily understand or communicate the English language, or cannot understand the proceedings or a charge made against the person, or is incapable of presenting or assisting in the presentation of a defense, because of deafness, or because of a physical hearing impairment or physical speaking impairment.

(b) “Qualified interpreter” means a person who is readily able to communicate with the person with a disability, translate the proceedings, and accurately repeat and translate the statements of the person with a disability to the officer or other person.

(2) Upon the arrest of a person with a disability and before interrogating or taking the statement of the person with a disability, the arresting peace officer, or when the arrest is by a private person, the officer to whom the person with a disability is delivered, shall make available to the person with a disability, at the earliest possible time, a qualified interpreter to assist the person with a disability throughout the interrogation or taking of a statement.

(3) The public employer of the arresting peace officer or officer to whom the person with a disability is delivered shall pay the fees and expenses of the qualified interpreter if:

(a) The person with a disability, subsequent to the arrest, makes a verified statement and provides other information in writing under oath showing inability to obtain a qualified interpreter, and provides any other information required by the court having jurisdiction over the offense for which the person with a disability was arrested concerning the inability to obtain such an interpreter; and

(b) It appears to the court that the person with a disability was without means and was unable to obtain a qualified interpreter. [1973 c.386 §3; 1981 s.s. c.3 §139; 1989 c.224 §9; 2007 c.70 §34]

133.520 [Amended by 1965 c.508 §2; 1973 c.836 §75; renumbered 133.450]

SEARCH AND SEIZURE

(Generally)

133.525 Definitions for ORS 133.525 to 133.703. As used in ORS 133.525 to 133.703, unless the context requires otherwise:

(1) “Judge” means any judge of the circuit court, the Court of Appeals, the Supreme Court, any justice of the peace or municipal judge authorized to exercise the powers and perform the duties of a justice of the peace.

(2) “Police officer” means:

(a) A member of the Oregon State Police;

(b) A sheriff or municipal police officer, a police officer commissioned by a university under ORS 352.383 or an authorized tribal police officer as defined in section 1, chapter 644, Oregon Laws 2011;

(c) An investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state; or

(d) An investigator of the Criminal Justice Division of the Department of Justice. [1973 c.836 §81; 1979 c.656 §2; 1991 c.67 §27; 1995 c.651 §7; 2011 c.506 §13; 2011 c.644 §16]

Note: The amendments to 133.525 by section 40, chapter 644, Oregon Laws 2011, become operative July 1, 2015. See section 58, chapter 644, Oregon Laws 2011, as amended by section 77, chapter 644, Oregon Laws 2011. The text that is operative on and after July 1, 2015, is set forth for the user’s convenience.

133.525. As used in ORS 133.525 to 133.703, unless the context requires otherwise:

(2) “Police officer” means:

(a) A member of the Oregon State Police;

(b) A sheriff or municipal police officer or a police officer commissioned by a university under ORS 352.383;

(c) An investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state; or

(d) An investigator of the Criminal Justice Division of the Department of Justice.

133.530 [Repealed by 1965 c.508 §8]

133.535 Permissible objects of search and seizure. The following are subject to search and seizure under ORS 133.525 to 133.703:

(1) Evidence of or information concerning the commission of a criminal offense;

(2) Contraband, the fruits of crime, or things otherwise criminally possessed;

(3) Property that has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense; and

(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment. [1973 c.836 §82]

133.537 Protection of things seized; liability of agency. (1) In all cases of seizure, an agency that seizes property shall take reasonable steps to safeguard and protect the things seized against loss, damage and deterioration.

(2) Notwithstanding subsection (1) of this section, an agency that seizes property is not liable for loss, damage or deterioration resulting from any reasonable actions taken to secure or develop evidence. [1991 c.540 §2]

Note: 133.537 was added to and made a part of 133.525 to 133.703 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

133.540 [Repealed by 1965 c.508 §8]

(Search and Seizure Pursuant to Warrant)

133.545 Issuance and execution of search warrant. (1) A search warrant may be issued only by a judge. A search warrant issued by a judge of the Supreme Court or the Court of Appeals may be executed anywhere in the state. Except as otherwise provided in subsection (2) of this section, a search warrant issued by a judge of a circuit court may be executed only within the judicial district in which the court is located. A search warrant issued by a justice of the peace may be executed only within the county in which the justice court is located. A search warrant issued by a municipal judge authorized to exercise the powers and perform the duties of a justice of the peace may be executed only in the municipality in which the court is located.

(2) Notwithstanding subsection (1) of this section, a circuit court judge may authorize execution of a search warrant outside the judicial district in which the court is located, if the judge finds from the application that one or more of the objects of the search relate to an offense committed or triable within the judicial district in which the court is located. If the warrant authorizes the installation or tracking of a mobile tracking device, the officer may track the device in any county to which it is transported.

(3) Application for a search warrant may be made only by a district attorney, a police officer or a special agent employed under ORS 131.805.

(4) The application shall consist of a proposed warrant in conformance with ORS 133.565, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.

(5) Instead of the written affidavit described in subsection (4) of this section, the judge may take an oral statement under oath. The oral statement shall be recorded and transcribed. The transcribed statement is an affidavit for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the warrant.

(6)(a) In addition to the procedure set out in subsection (5) of this section, the proposed warrant and the affidavit may be sent to the court by facsimile transmission or any similar electronic transmission that delivers a complete printable image of the signed affidavit and proposed warrant. The affidavit may have a notarized acknowledgment, or the affiant may swear to the affidavit by telephone. A judge administering an oath telephonically under this subsection must execute a declaration that recites the manner and time of the oath’s administration. The declaration must be filed with the return.

(b) When a court issues a warrant upon an application made under paragraph (a) of this subsection:

(A) The court may transmit the signed warrant to the person making application under subsection (3) of this section by means of facsimile transmission or similar electronic transmission, as described in paragraph (a) of this subsection. The court shall file the original signed warrant and a printed image of the application with the return.

(B) The person making application shall deliver the original signed affidavit to the court with the return. If the affiant swore to the affidavit by telephone, the affiant must so note next to the affiant’s signature on the affidavit. [1973 c.836 §83; 1985 c.344 §1; 1989 c.983 §3; 1995 c.658 §73; 1999 c.56 §1; 2007 c.547 §1; 2009 c.334 §1]

133.550 [Repealed by 1973 c.836 §358]

133.555 Hearing. (1) Before acting on the application, the judge may examine on oath the affiants, and the applicant and any witnesses the applicant may produce, and may call such witnesses as the judge considers necessary to a decision. The judge shall make and keep a record of any testimony taken before the judge. The record shall be admissible as evidence on any motion to suppress.

(2) If the judge finds that the application meets the requirements of ORS 133.545 and that, on the basis of the record made before the judge, there is probable cause to believe that the search will discover things specified in the application and subject to seizure under ORS 133.535, the judge shall issue a search warrant based on the finding of the judge and in accordance with the requirements of ORS 133.545 to 133.615. If the judge does not so find, the judge shall deny the application.

(3) The judge may orally authorize a police officer, a district attorney or a special agent employed under ORS 131.805 to sign the judge’s name on a duplicate original warrant. A duplicate original warrant shall be a search warrant for the purposes of ORS 133.535 to 133.615, and it shall be returned to the judge as provided in ORS 133.615. In such cases a judge shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant in the manner provided by law.

(4) Until the warrant is executed, the proceedings upon application for a search warrant shall be conducted with secrecy appropriate to the circumstances. [1973 c.836 §84; 2009 c.334 §2]

133.560 [Repealed by 1973 c.836 §358]

133.565 Contents of search warrant. (1) A search warrant shall be dated and shall be addressed to and authorize its execution by an officer authorized by law to execute search warrants.

(2) The warrant shall state, or describe with particularity:

(a) The identity of the judge issuing the warrant and the date the warrant was issued;

(b) The name of the person to be searched, or the location and designation of the premises or places to be searched;

(d) The period of time, not to exceed five days, after execution of the warrant except as provided in subsection (3) of this section, within which the warrant is to be returned to the issuing authority.

(3) Except as otherwise provided herein, the search warrant shall be executed between the hours of 7 a.m. and 10 p.m. and within five days from the date of issuance. The judge issuing the warrant may, however, by indorsement upon the face of the warrant, authorize its execution at any time of the day or night and may further authorize its execution after five days, but not more than 10 days from date of issuance. [1973 c.836 §85]

133.575 Execution of warrant. (1) Except as provided in ORS 136.583, a search warrant may be executed only within the period and at the times authorized by the warrant and only by a police officer. A police officer charged with its execution may be accompanied by such other persons as may be reasonably necessary for the successful execution of the warrant with all practicable safety.

(2) The executing officer shall, before entering the premises, give appropriate notice of the identity, authority and purpose of the officer to the person to be searched, or to the person in apparent control of the premises to be searched, as the case may be.

(3) Except as provided in ORS 133.619, before undertaking any search or seizure pursuant to the warrant, the executing officer shall read and give a copy of the warrant to the person to be searched, or to the person in apparent control of the premises to be searched. If the premises are unoccupied or there is no one in apparent control, the officer shall leave a copy of the warrant suitably affixed to the premises. [1973 c.836 §86; 1989 c.983 §4; 2009 c.617 §2]

133.585 [1973 c.836 §87; repealed by 1997 c.313 §37]

133.595 List of things seized. Except as provided in ORS 133.619, promptly upon completion of the search, the officer shall make a list of the things seized, and shall deliver a receipt embodying the list to the person from whose possession they are taken, or the person in apparent control of the premises or vehicle from which they are taken. If the vehicle or premises are unoccupied or there is no one present in apparent control, the executing officer shall leave the receipt suitably affixed to the vehicle or premises. [1973 c.836 §88; 1989 c.983 §5]

133.605 Use of force in executing warrants. (1) The executing officer and other officers accompanying and assisting the officer may use the degree of force, short of deadly physical force, against persons, or to effect an entry, or to open containers, as is reasonably necessary for the execution of the search warrant with all practicable safety.

(2) The use of deadly physical force in the execution of a search warrant is justifiable only:

(a) If the officer reasonably believes that there is a substantial risk that things to be seized will be used to cause death or serious physical injury if their seizure is delayed and that the force used creates no substantial risk of injury to persons other than those obstructing the officer; or

(b) If the officer reasonably believes that the use of deadly physical force is necessary to defend the officer or another person from the use or threatened imminent use of deadly physical force. [1973 c.836 §89]

133.610 [Amended by 1963 c.511 §1; 1965 c.508 §3; 1973 c.836 §138; renumbered 135.070]

133.615 Return of the warrant. (1) If a search warrant is not executed within the time specified by the warrant, the officer shall forthwith return the warrant to the issuing judge.

(2) An officer who has executed a search warrant shall, as soon as is reasonably possible and in no event later than the date specified in the warrant, return the warrant to the issuing judge together with a signed list of things seized and setting forth the date and time of the search.

(3) Subject to the provisions of subsection (4) of this section, the issuing judge shall file the warrant and list returned to the judge, with the record of the proceedings on the application for the warrant made pursuant to ORS 133.555.

(4) If the issuing judge does not have jurisdiction to inquire into the offense in respect to which the warrant was issued or the offense apparently disclosed by the things seized, the judge shall transmit the warrant and the record of proceedings for its issuance, together with the documents submitted on the return, to the clerk of the appropriate court having jurisdiction to inquire into such offense. [1973 c.836 §90]

133.617 “Mobile tracking device” defined. As used in ORS 133.545 and 133.619, unless the context requires otherwise, “mobile tracking device” means an electronic or mechanical device which permits the tracking of the movement of a person or object. [1989 c.983 §1]

Note: 133.617 and 133.619 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 133 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

133.619 Execution of warrant authorizing mobile tracking device. (1) A warrant authorizing the installation or tracking of a mobile tracking device shall be executed as provided in this section.

(2) The officer need not inform any person of the existence or content of the warrant prior to its execution.

(3) Except as provided in subsection (4) of this section, the officer need not deliver or leave a receipt for things seized or observations made under authority of the warrant.

(4) Within five days of the execution of the warrant, or, in the case of an ongoing investigation, within such additional time as the issuing judge may allow upon application, the officer shall mail a receipt for things seized or observations made under authority of the warrant to the following:

(a) If the mobile tracking device has been affixed to a vehicle, to the registered owner; and

(b) To such other persons as the court may direct in the warrant.

(5) The receipt provided for in subsection (4) of this section shall include the dates and times during which the officer monitored or attempted to monitor the mobile tracking device.

(6) A warrant authorizing the installation or tracking of a mobile tracking device shall only be issued based upon the submission of an affidavit or oral statement as set forth in ORS 133.545, which affidavit or statement demonstrates that probable cause exists to believe that an individual is committing or is about to commit a particular felony of murder, kidnapping, arson, robbery or other crime dangerous to life and punishable as a felony, any crime punishable as a felony arising under ORS 475.752 or 475.806 to 475.894, unlawfully transporting metal property, any crime described in ORS 165.118, bribery, extortion, burglary or unauthorized use of a motor vehicle punishable as a felony, or any conspiracy to commit any of the crimes listed in this subsection. [1989 c.983 §2; 1991 c.625 §1; 1993 c.171 §1; 1999 c.56 §2; 2005 c.708 §44; 2009 c.811 §8]

Note: See note under 133.617.

133.620 [Amended by 1965 c.508 §4; renumbered 135.075]

133.621 Medical procedures; immunity from liability for performing. A duly licensed physician, or a person acting under the direction or control of a duly licensed physician, may withdraw bodily substances, pierce human tissue, perform medical tests and procedures and otherwise use medical procedures to gather evidence in a criminal investigation. A duly licensed physician, or a person acting under the direction or control of a duly licensed physician, shall not be held civilly liable for gathering potential evidence in a criminal investigation in a medically acceptable manner at the request of a peace officer. The civil immunity granted in this section is not conditioned upon the existence of probable cause, the existence of a search warrant or the existence of a court order. Nothing in this section shall be interpreted as requiring a duly licensed physician to act at the request of a peace officer. [1989 c.585 §2]

Note: 133.621 was added to and made a part of ORS chapter 133 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

(Disposition of Things Seized)

133.623 Handling and disposition of things seized. (1) The provisions of subsections (2), (3) and (4) of this section apply to all cases of seizure, except for a seizure made under a search warrant.

(2) If an officer makes an arrest in connection with the seizure, the officer shall, as soon thereafter as is reasonably possible, make a written list of the things seized and furnish a copy of the list to the defendant.

(3) If no claim to rightful possession has been established under ORS 133.633 to 133.663, the things seized may be disposed of in accordance with ORS 98.245 or the court may order that the things be delivered to the officials having responsibility under the applicable laws for selling, destroying or otherwise disposing of contraband, forfeited or unclaimed goods in official custody. If the responsible officials are state officials and the property is forfeited, the clear proceeds shall be deposited with the State Treasury in the Common School Fund.

(4) If things seized in connection with an arrest are not needed for evidentiary purposes, and if a person having a rightful claim establishes identity and right to possession beyond a reasonable doubt to the satisfaction of the seizing officer, the officer may summarily return the things seized to their rightful possessor. If the things seized are perishable and it is not possible to return them to their rightful possessor, the seizing officer may dispose of the items as justice and the necessities of the case require. [1973 c.836 §109; 1987 c.858 §1; 1997 c.480 §3]

133.625 [1961 c.696 §1; 1967 c.475 §1; 1973 c.836 §135; renumbered 135.050]

133.630 [Repealed by 1961 c.696 §4]

133.633 Motion for return or restoration of things seized. (1) Within 90 days after actual notice of any seizure, or at such later date as the court in its discretion may allow:

(a) An individual from whose person, property or premises things have been seized may move the appropriate court to return things seized to the person or premises from which they were seized.

(b) Any other person asserting a claim to rightful possession of the things seized may move the appropriate court to restore the things seized to the movant.

(2) The appropriate court to consider such motion is:

(a) The court having ultimate trial jurisdiction over any crime charged in connection with the seizure;

(b) If no crime is charged in connection with the seizure, the court to which the warrant was returned; or

(c) If the seizure was not made under a warrant and no crime is charged in connection with the seizure, any court having authority to issue search warrants in the county in which the seizure was made.

(3) The movant shall serve a copy of the motion upon the district attorney or the city attorney, whichever is appropriate, of the jurisdiction in which the property is in custody.

(4) No filing, appearance or hearing fees may be charged for filing or hearing a motion under this section. [1973 c.836 §110; 1999 c.37 §1; 2005 c.22 §102]

133.635 [1961 c.696 §3; 1967 c.628 §2; renumbered 135.080]

133.640 [Repealed by 1965 c.508 §8]

133.643 Ground for motion for return or restoration of things seized. A motion for the return or restoration of things seized shall be based on the ground that the movant has a valid claim to rightful possession thereof, because:

(1) The things had been stolen or otherwise converted, and the movant is the owner or rightful possessor;

(2) The things seized were not in fact subject to seizure under ORS 131.550 to 131.600 or 133.525 to 133.703;

(3) The movant, by license or otherwise, is lawfully entitled to possess things otherwise subject to seizure under ORS 133.525 to 133.703;

(4) Although the things seized were subject to seizure under ORS 133.525 to 133.703, the movant is or will be entitled to their return or restoration upon the court’s determination that they are no longer needed for evidentiary purposes; or

(5) The parties in the case have stipulated that the things seized may be returned to the movant. [1973 c.836 §111; 2001 c.104 §44; 2001 c.666 §§22,23; 2005 c.830 §20]

133.650 [Repealed by 1973 c.836 §358]

133.653 Postponement of return or restoration; appellate review. (1) In granting a motion for return or restoration of things seized, the court shall postpone execution of the order until such time as the things in question need no longer remain available for evidentiary use.

(2) An order granting a motion for return or restoration of things seized shall be reviewable on appeal in regular course. An order denying such a motion or entered under ORS 133.663 shall be reviewable on appeal upon certification by the court having custody of the things in question that they are no longer needed for evidentiary purposes. [1973 c.836 §112]

133.660 [Amended by 1961 c.289 §1; 1965 c.508 §5; 1973 c.836 §139; renumbered 135.085]

133.663 Disputed possession rights. (1) If, upon consideration of a motion for return or restoration of things seized, it appears to the court that the things should be returned or restored, but there is a substantial question whether they should be returned to the person from whose possession they were seized or to some other person, or a substantial question among several claimants to rightful possession, the court may:

(a) Return the things to the person from whose possession they were seized; or

(b)(A) Impound the things seized and set a further hearing, ensuring that all persons with a possible possessory interest in the things in question receive due notice and an opportunity to be heard; and

(B) Upon completion of the hearing provided for in subparagraph (A) of this paragraph, enter an order for the return or restoration of the things seized.

(2) If there is no substantial question whether the things should be returned to the person from whose possession they were seized, they must be returned to the person upon the release of the defendant from custody.

(3) Instead of conducting the hearing provided for in subsection (1)(b)(A) of this section and returning or restoring the property, the court, in its discretion, may leave the several claimants to appropriate civil process for the determination of the claims. [1973 c.836 §113; 2005 c.22 §103]

133.665 [Repealed by 1961 c.289 §3]

133.670 [Renumbered 135.090]

(Evidentiary Exclusion)

133.673 Motions to suppress evidence. (1) Objections to use in evidence of things seized in violation of any of the provisions of ORS 133.525 to 133.703 shall be made by a motion to suppress which shall be heard and determined by any department of the trial court in advance of trial.

(2) A motion to suppress which has been denied may be renewed, in the discretion of the court, on the ground of newly discovered evidence, or as the interests of justice require. [1973 c.836 §114; 1975 c.197 §1]

133.680 [Renumbered 135.095]

133.683 [1973 c.836 §117; repealed by 1997 c.313 §37]

133.690 [Renumbered 135.100]

133.693 Challenge to truth of evidence. (1) Subject to the provisions of subsection (2) of this section, in any proceeding on a motion to suppress evidence the moving party shall be entitled to contest, by cross-examination or offering evidence, the good faith, accuracy and truthfulness of the affiant with respect to the evidence presented to establish probable cause for search or seizure.

(2) If the evidence sought to be suppressed was seized by authority of a search warrant, the moving party shall be allowed to contest the good faith, accuracy and truthfulness of the affiant as to the evidence presented before the issuing authority only upon supplementary motion, supported by affidavit, setting forth substantial basis for questioning such good faith, accuracy and truthfulness.

(3) In any proceeding under subsection (2) of this section, the moving party shall have the burden of proving by a preponderance of the evidence that the evidence presented before the issuing authority was not offered in good faith, was not accurate and was not truthful.

(4) Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.

(5) The court shall determine whether, under applicable law, any inaccuracy, untruthfulness or lack of good faith requires suppression. [1973 c.836 §118]

133.700 [Renumbered 135.105]

133.703 Identity of informants. (1) In any proceeding on a motion to suppress evidence wherein, pursuant to ORS 133.693, the good faith of the testimony presented to establish probable cause is contested, and wherein such testimony includes a report of information furnished by an informant whose identity is not disclosed in the testimony, the moving party shall be entitled to prevail on the motion to suppress and evidence obtained as a result of the information furnished by the informant shall be suppressed unless:

(a) The evidence sought to be suppressed was seized by authority of a search warrant and the informant testified in person before the issuing authority; or

(b) The judge determines from the affiant by a preponderance of the evidence that such confidential informant exists and is reliable.

(2) If the defendant is entitled to prevail on the motion to suppress under subsection (1) of this section, the evidence obtained as a result of the information furnished by the informant shall be suppressed. [1973 c.836 §119]

(Preservation of Biological Evidence)

133.705 Definitions for ORS 133.705 to 133.717. As used in ORS 133.705 to 133.717:

(1) “Biological evidence” means an individual’s blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids or other identified biological material. “Biological evidence” includes the contents of a sexual assault forensic evidence kit.

(2) “Convicted” includes a finding of guilty or responsible except for insanity and a finding that a person is within the jurisdiction of the juvenile court under ORS 419C.005.

(3) “Covered offense” means:

(a) Aggravated murder under ORS 163.095;

(b) Murder under ORS 163.115;

(d) Manslaughter in the second degree under ORS 163.125;

(e) Aggravated vehicular homicide under ORS 163.149;

(f) Rape in the first degree under ORS 163.375;

(g) Sodomy in the first degree under ORS 163.405; or

(h) Unlawful sexual penetration in the first degree under ORS 163.411.

(4) “Custodian” means a law enforcement agency as defined in ORS 131.550, or any other person or public body as defined in ORS 174.109, that is charged with the collection, preservation or retrieval of evidence in connection with a criminal investigation or criminal prosecution. “Custodian” does not include a court.

(5) “DNA” means deoxyribonucleic acid.

(6) “DNA profile” means the unique identifier of an individual that is derived from DNA.

(7) “Sentence” means a term of incarceration in a correctional or juvenile detention facility, a period of probation, parole or post-prison supervision and the period of time during which a person is under the jurisdiction of the Psychiatric Security Review Board.

(8) “Supervisory authority” has the meaning given that term in ORS 144.087.

(9) “Victim” has the meaning given that term in ORS 131.007. [2011 c.275 §2]

Note: 133.705 to 133.717 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 133 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

133.707 Custodian’s obligation to preserve biological evidence; effect of inability to produce in judicial proceeding; rules. (1) A custodian shall preserve biological evidence in accordance with ORS 133.705 to 133.717 if the evidence:

(a) Is collected as part of a criminal investigation into a covered offense; or

(b) Is otherwise in the possession of the custodian and reasonably may be used to incriminate or exculpate any person for a covered offense.

(2) When a custodian is required to preserve biological evidence under subsection (1) of this section, the custodian shall preserve the evidence in an amount and manner that is sufficient to develop a DNA profile. Except as otherwise provided in ORS 133.705 to 133.717, the biological evidence must be preserved:

(a) If the covered offense is aggravated murder, murder, rape in the first degree, sodomy in the first degree or unlawful sexual penetration in the first degree, for 60 years from the date each person is convicted of the offense or until each person convicted of the offense has died, whichever is earlier.

(b) If the covered offense is aggravated vehicular homicide, manslaughter in the first degree or manslaughter in the second degree, until each person convicted of the offense has served the person’s sentence.

(c) If no person is convicted of the covered offense or the law enforcement agency investigating the covered offense closes the case for a reason other than the conviction of a person, until the expiration of the statute of limitations.

(3) A custodian is not required to preserve physical evidence solely because the physical evidence contains biological evidence if the physical evidence is of such a size, bulk or physical character as to render retention impracticable. When the retention of physical evidence is impracticable, the custodian shall remove and preserve portions of the physical evidence likely to contain biological evidence in a quantity sufficient to permit future DNA testing before returning or disposing of the physical evidence.

(4) Upon the conclusion of any trial or hearing involving a covered offense, the court shall return any biological evidence in the possession of the court to the custodian responsible for preserving the biological evidence under ORS 133.705 to 133.717, unless the evidence was collected by the defense. If the evidence was collected by the defense, the court shall return the evidence to the attorney for the defendant.

(5) If a custodian is required to preserve biological evidence under ORS 133.705 to 133.717 and the custodian is unable to produce the evidence in a judicial proceeding, the individual to whom the custodian has delegated the duty to preserve the evidence shall prepare, sign and file with the court a sworn affidavit that indicates that the custodian is unable to produce the evidence and describes the efforts taken to locate the evidence.

(6) If a court finds that biological evidence was destroyed in violation of ORS 133.705 to 133.717, the court, after determining whether the evidence was destroyed maliciously, may impose appropriate sanctions and order appropriate remedies. The court may not order the reversal of a conviction under this subsection on the sole grounds that the biological evidence is no longer available.

(7)(a) The Attorney General shall adopt rules establishing:

(A) Standards for the proper collection, retention, preservation and cataloging of biological evidence applicable to criminal investigations into, and criminal prosecutions for, covered offenses; and

(B) A standard form for use by custodians in providing the written notice described in ORS 133.709 (1).

(b) The Attorney General shall consult with the Department of State Police and custodians before adopting rules under this subsection. [2009 c.489 §1; 2011 c.275 §1]

Note: See note under 133.705.

133.709 Notice of intent to dispose; motion to preserve. (1)(a) A custodian may seek to dispose of biological evidence before the period of time specified in ORS 133.707 (2), by providing written notice, in the form developed under ORS 133.707 (7), to the district attorney having jurisdiction over the prosecution of the covered offense. Upon receipt of the notice, the district attorney shall determine whether to object to the disposal of any of the biological evidence identified in the custodian’s notice.

(b) If the district attorney objects to the disposal of any of the biological evidence identified in the custodian’s notice, the district attorney shall provide written notice of the objection to the custodian that identifies the biological evidence that the district attorney determines must be preserved. The custodian shall preserve any biological evidence identified by the district attorney in the notice until the period of time specified in ORS 133.707 (2) has elapsed.

(c) If the district attorney does not object to the disposal of all or a portion of the biological evidence identified in the custodian’s notice, the district attorney shall provide written notice of the intent to dispose of biological evidence, identifying the biological evidence that the district attorney has determined may be disposed of, to:

(A) The defendant;

(B) The most recent attorney of record for the defendant; and

(2) If evidence that is subject to ORS 133.707 is the property of the victim, the victim may request that the district attorney determine whether the property may be returned to the victim. The request must be in writing and must identify the property that the victim seeks to have returned. If the district attorney:

(a) Objects to the return of any of the property to the victim, the district attorney shall notify the victim of that determination.

(b) Does not object to the return of all or a portion of the property, the district attorney shall provide written notice of the intent to dispose of biological evidence, identifying the property the district attorney has determined may be returned, to:

(A) The victim;

(B) The defendant;

(D) The Department of Justice.

(3)(a) Not later than 120 days after the date the district attorney provides written notice to the defendant under subsection (1)(c) or (2)(b) of this section, the defendant may file a motion to preserve biological evidence in the convicting court. The defendant shall provide a copy of the motion to the district attorney and the custodian. If the motion is timely filed, the court shall enter an order as provided in ORS 133.715.

(b) If the defendant fails to file a motion to preserve biological evidence before the expiration of the 120-day period specified in paragraph (a) of this subsection, the district attorney shall file with the court a copy of the notice of intent to dispose of biological evidence sent to the defendant under subsection (1)(c) or (2)(b) of this section. Following the filing of the notice, the court shall, without hearing, enter an order authorizing the disposal of the biological evidence described in the notice. The court shall provide a copy of the order to the custodian, the district attorney and each person or entity described in subsection (1)(c) or (2)(b) of this section, as applicable.

Note: See note under 133.705.

133.710 [Renumbered 135.115]

133.713 Inventory; right to review. (1) Upon written request by the defendant, the district attorney shall provide the defendant with an inventory of biological evidence that has been preserved under ORS 133.705 to 133.717 and is related to the covered offense for which the defendant was convicted.

(2) A defendant or, if the defendant is represented by an attorney, the defendant’s attorney has the right to reasonably review biological evidence that is the subject of a written notice of intent to dispose of biological evidence under ORS 133.709 for the purpose of preparing a motion to preserve biological evidence. [2011 c.275 §5]

Note: See note under 133.705.

133.715 Order; appeal. (1) Upon receipt of a timely motion to preserve biological evidence under ORS 133.709 (3), the court shall:

(a) Conduct a hearing to resolve the motion; or

(b) Enter an order directing the custodian to preserve the biological evidence.

(2)(a) In determining whether to order the preservation of biological evidence, the court shall consider, in addition to other factors the court considers appropriate, the following factors:

(A) Whether the identification of the offender was a disputed issue;

(B) Whether other biological evidence in the case contains DNA in an amount that is sufficient to develop a DNA profile and will not be disposed of;

(C) If the biological evidence has not previously been tested, whether it is possible to perform testing on the biological evidence;

(D) Whether the defendant has served all of the sentence imposed; and

(E) Whether the defendant has exhausted the defendant’s appellate or post-conviction rights.

(b) If the defendant has not exhausted the defendant’s appellate and post-conviction rights, there is a presumption that the biological evidence should be preserved.

(c) In making the determination described in this subsection, except as otherwise provided in paragraph (b) of this subsection, the court may assign the weight the court deems appropriate to the factors described in paragraph (a) of this subsection and to any other factor the court determines is appropriate.

(d) For purposes of subparagraph (2)(a)(A) of this section, the court need not presume that identification of the offender is not a disputed issue solely because the defendant has pleaded guilty or no contest to the crime, has confessed to the crime or has made an admission.

(3) If the court enters an order authorizing the disposal of biological evidence, the order may not authorize disposal to occur sooner than 45 days after the date the order is entered. The court shall provide a copy of the order to the custodian, the district attorney and the defendant.

(4) Either the state or the defendant may appeal from an order entered under this section in the manner provided in ORS chapter 19 for appeals from judgments. Notwithstanding ORS 19.330, the filing of a notice of appeal automatically stays an order entered under this section. [2011 c.275 §4]

Note: See note under 133.705.

133.717 Provision of notice or order to defendant. When a provision of ORS 133.705 to 133.717 requires a district attorney or the court to provide written notice or an order to the defendant and the defendant:

(1) Is incarcerated for any offense in a Department of Corrections institution, the notice must be sent by regular United States mail in an envelope prominently displaying the words “Legal Mail.”

(2) Is supervised by a supervisory authority for any offense, the notice must be sent by regular United States mail to the defendant’s last-known address on record with the supervisory authority.

(3) Is no longer supervised by a supervisory authority, the notice must be sent by certified mail to the defendant’s last-known address. [2011 c.275 §6]

Note: See note under 133.705.

133.720 [Renumbered 135.125]

INTERCEPTION OF COMMUNICATIONS

133.721 Definitions for ORS 41.910 and 133.721 to 133.739. As used in ORS 41.910 and 133.721 to 133.739, unless the context requires otherwise:

(1) “Aggrieved person” means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or 133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful.

(2) “Contents,” when used with respect to any wire, electronic or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.

(3) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a radio, electromagnetic, photoelectronic or photo-optical system, or transmitted in part by wire, but does not include:

(a) Any oral communication or any communication that is completely by wire; or

(b) Any communication made through a tone-only paging device.

(4) “Electronic, mechanical or other device” means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof that is furnished to the subscriber or user by a telecommunications carrier in the ordinary course of its business and that is being used by the subscriber or user in the ordinary course of its business or being used by a telecommunications carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of official duties; or

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(5) “Intercept” means the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

(6) “Investigative or law enforcement officer” means:

(a) An officer or other person employed to investigate or enforce the law by:

(A) A county sheriff or municipal police department, or a police department established by a university under ORS 352.383;

(B) The Oregon State Police, the Department of Corrections, the Attorney General or a district attorney; or

(b) An authorized tribal police officer as defined in section 1, chapter 644, Oregon Laws 2011.

(7) “Oral communication” means:

(a) Any oral communication, other than a wire or electronic communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation; or

(b) An utterance by a person who is participating in a wire or electronic communication, if the utterance is audible to another person who, at the time the wire or electronic communication occurs, is in the immediate presence of the person participating in the communication.

(8) “Telecommunications carrier” means:

(a) A telecommunications utility as defined in ORS 759.005; or

(b) A cooperative corporation organized under ORS chapter 62 that provides telecommunications services.

(9) “Telecommunications service” has the meaning given that term in ORS 759.005.

(10) “Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, whether furnished or operated by a public utility or privately owned or leased. [1979 c.716 §2; 1983 c.824 §6; 1987 c.320 §18; 1987 c.447 §103; 1989 c.983 §6; 1999 c.1093 §1; 2001 c.385 §1; 2003 c.14 §53; 2005 c.22 §104; 2011 c.644 §§17,62]

Note: The amendments to 133.721 by section 70, chapter 644, Oregon Laws 2011, become operative July 1, 2015. See section 58, chapter 644, Oregon Laws 2011, as amended by section 77, chapter 644, Oregon Laws 2011. The text that is operative on and after July 1, 2015, is set forth for the user’s convenience.

133.721. As used in ORS 41.910 and 133.721 to 133.739, unless the context requires otherwise:

(a) Any oral communication or any communication that is completely by wire; or

(b) Any communication made through a tone-only paging device.

(4) “Electronic, mechanical or other device” means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(5) “Intercept” means the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.