Chapter 133

133.005

See also annotations under ORS 133.210 and 133.250 in permanent edition.

NOTES OF DECISIONS

Nonviolent flight from attempted arrest is not criminal, and thus evidence was insufficient to sustain escape charge where defendant was convicted of driving under influence of intoxicants and third degree escape. State v. Swanson, 34 Or App 59, 578 P2d 411 (1978)

Where defendant entered house in process of being searched, officers took defendant to kitchen, advised him of rights, “patted him down,” and took his money and car keys from his pockets, defendant was “arrested” as defined in this section. State v. Groda, 285 Or 321, 591 P2d 1354 (1979)

Once defendant was taken out of car and frisked, any concern about immediate danger to police officers dissipated, and defendant was arrested within meaning of this section when he was subsequently handcuffed and placed in patrol car. State v. Morgan, 106 Or App 138, 806 P2d 713 (1991), Sup Ct review denied; State v. Koester, 117 Or App 139, 843 P2d 968 (1992), Sup Ct review denied

Where officer failed to follow procedure for frisking stopped person and there was no reason to believe doing so would be futile, use of handcuffs constituted arrest rather than precaution for officer safety. State v. Johnson, 120 Or App 151, 851 P2d 1160 (1993), Sup Ct review denied

Requirement that action be for purpose of charging offense applies both to placing person under actual or constructive restraint and to taking person into custody. State v. Pierce, 226 Or App 224, 203 P3d 290 (2009), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of Oregon Liquor Control Commission to arrest or issue citation, (1974) Vol 36, p 1066

LAW REVIEW CITATIONS: 10 WLJ 30 (1973)

133.007

NOTES OF DECISIONS

State is excused from alleging that statutory proviso or exception does not apply only where proviso or exception plainly stands apart from defined elements of crime. State v. Vasquez-Rubio, 134 Or App 646, 897 P2d 324 (1995), aff’d on other grounds, 323 Or 275, 917 P2d 494 (1996)

133.033

NOTES OF DECISIONS

Police action “reasonably appears to be necessary” if action in remaining on premises is logically unavoidable or absolutely needed to accomplish goal of preventing serious harm to person or property. State v. Goodall, 219 Or App 325, 183 P3d 199 (2008)

Where police action to prevent serious harm includes warrantless search of home, search must fall within recognized exception to warrant requirement. State v. Goodall, 219 Or App 325, 183 P3d 199 (2008)

Lawful community caretaking search requires that search be type of action authorized under this section and fall within constitutional exception to search warrant requirement. State v. Martin, 222 Or App 138, 193 P3d 993 (2008), Sup Ct review denied

133.055

NOTES OF DECISIONS

Where police officer issues criminal citation, subsequent filing of information by district attorney is continuation of same prosecution. State v. Anglin, 227 Or App 325, 206 P3d 193 (2009), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of Oregon Liquor Control Commission to arrest or issue citation, (1974) Vol 36, p 1066

LAW REVIEW CITATIONS: 53 OLR 278 (1974); 85 OLR 325 (2006)

133.060

NOTES OF DECISIONS

Citation that requires defendant to appear before magistrate more than 30 days after date on which citation is issued is not invalid. State v. Robison, 233 Or App 90, 227 P3d 169 (2009), Sup Ct review denied

133.069

NOTES OF DECISIONS

Review of citation by district attorney does not substitute for certification of reasonable belief by police officer. State v. Thomas, 221 Or App 1, 188 P3d 444 (2008)

133.110 to 133.140

NOTES OF DECISIONS

Where plaintiff was mistakenly arrested following computer retrieval of identifying and locator data for an individual of similar name, demurrer as to 3 of defendants was properly sustained because plaintiff failed to allege sufficient facts from which duty to plaintiff could be discerned and summary judgment as to 2 of defendants was improperly allowed because affidavits did not reveal whether defendants’ acts were discretionary or ministerial. Murphy v. City of Portland, 36 Or App 745, 585 P2d 732 (1978)

133.110

COMPLETED CITATIONS: State v. Redeman, 6 Or App 205, 485 P2d 655 (1971)

LAW REVIEW CITATIONS: 7 WLJ 456 (1971)

133.140

See also annotations under ORS 133.130 in permanent edition.

NOTES OF DECISIONS

Warrant, authorizing officers to seize business records “pertaining to ownership” of theater alleged to be showplace of obscene films, described items to be seized with sufficient particularity. State v. Tidyman, 30 Or App 537, 568 P2d 666 (1977), Sup Ct review denied

LAW REVIEW CITATIONS: 7 WLJ 456 (1971); 59 OLR 327 (1980)

133.225

See also annotations under ORS 133.350 in permanent edition.

NOTES OF DECISIONS

Evidence, in tort action for alleged reckless discharge of firearm, that store clerk activated burglar alarm after robbery, that defendant emerged from back room and was told by clerk that robber was fleeing, and that it appeared from circumstances that robber was escaping from parking lot, was sufficient to warrant finding that crime was committed in defendant’s presence within meaning of this section. Hatfield v. Gracen, 279 Or 303, 567 P2d 546 (1977)

Where off-duty state trooper, acting as citizen, could have arrested defendant under this section for driving under influence of intoxicants, he was not required to follow any set procedures in initiating law enforcement action. State v. Chaput, 43 Or App 831, 604 P2d 435 (1979)

LAW REVIEW CITATIONS: 10 WLJ 30 (1973); 55 OLR 286 (1976)

133.235

See also annotations under ORS 133.240, 133.270, 133.290, 133.300, 133.320 and 133.330 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 133.290)

Requirement of announcement and refusal stems from common law. State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971), Sup Ct review denied; State v. Gassner, 6 Or App 452, 488 P2d 822 (1971)

Requirement of announcement and refusal may be dispensed with where notice would imperil officer, facilitate escape or allow destruction of evidence. State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971), Sup Ct review denied; State v. Gassner, 6 Or App 452, 488 P2d 822 (1971)

Evidence seized in violation of local statute may be suppressed; if seized in violation of United States Constitution, it must be suppressed. State v. Gassner, 6 Or App 452, 488 P2d 822 (1971)

Exigent circumstances existed which justified officer’s entry without first giving notice of his authority and purpose. State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971), Sup Ct review denied; State v. Larkens, 8 Or App 162, 493 P2d 172 (1972)

Evidence secured by entry not in compliance with this section shall not be excluded. State v. Valentine, 264 Or 54, 504 P2d 84 (1972), cert. denied, 412 US 948

In general

Where arresting officers entered house in which victim believed burglar lived within 10 to 15 minutes after report of burglary, circumstances were sufficiently exigent to justify entry to make probable cause arrest. State v. Ellett, 33 Or App 447, 576 P2d 839 (1978)

Absent exigent circumstances or hot pursuit, police officers who have probable cause to arrest a person may not forcibly enter a person’s home for that purpose in absence of having secured a warrant. State v. Olson, 287 Or 157, 598 P2d 670 (1979)

This section did not authorize Tigard police officer to serve summons on defendant at her Lake Oswego residence for an offense committed in Tigard. State v. Huffman, 49 Or App 823, 621 P2d 78 (1980)

Where police identified themselves but did not announce purpose before entering defendant’s mother’s house to arrest defendant, motion to suppress confession as fruit of illegal arrest was properly denied. State v. Bishop, 288 Or 349, 605 P2d 642 (1980)

Officers who enter premises with valid arrest warrant to make arrest under this section must meet same test for showing probable cause to believe person is on premises as is required to support issuance of search warrant under ORS 133.545. State v. Munro, 96 Or App 238, 772 P2d 1353 (1989)

This section includes apprehension of peril exception to knock and announce requirement if specific and articulable facts known at time of entry, taken together with rational inferences that may be drawn from facts, would lead reasonable person to believe that compliance would create risk to police officer’s safety. State v. Ford, 310 Or 623, 801 P2d 754 (1990)

ATTY. GEN. OPINIONS

In general

Authority of Oregon Liquor Control Commission to arrest or issue citation, (1974) Vol 36, p 1066; application to arrests by weighmaster, (1979) Vol 39, p 528

LAW REVIEW CITATIONS

Under former similar statute (ORS 133.290)

8 WLJ 107-114, 224-228 (1972); 10 WLJ 30, 66 (1973)

133.310

NOTES OF DECISIONS

In general

Where arresting officers entered house within 10 to 15 minutes after report of burglary where burglary victim believed defendant lived, circumstances were sufficiently exigent to justify entry to make probable cause arrest. State v. Ellett, 33 Or App 447, 576 P2d 839 (1978)

Where plaintiff delivered to police proof that her husband had been served with order restraining him from molesting family and then reported to police series of violations of order but police refused to arrest husband, court held that officers who knowingly failed to enforce judicial order issued under Abuse Prevention Act are potentially liable for resulting harm to psychic and physical health of intended beneficiaries of the order. Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983)

Warrantless arrest, not in defendant’s home, if based upon probable cause does not violate Article I, Section 9 of the Oregon Constitution. State v. Mace, 67 Or App 753, 681 P2d 140 (1984), Sup Ct review denied

Where county held parolee subject to official communication that State Board of Parole had issued warrant for parolee’s arrest, parolee’s right to be free of unreasonable seizures was not violated; officer need not have copy of warrant or order in hand but may rely on official communication indicating that warrant exists. Waller v. Drago, 611 F Supp 405 (1985)

Where evidence showed that tribal law incorporated Oregon law concerning arrest for drunken driving, allowing arrest if officer has probable cause to believe person has committed major traffic offense, tribal officer was authorized to make such arrest. United States v. Strong, 778 F2d 1393 (1985)

Facts were sufficient to justify stop when, after receiving information of violation of restraining order, officer, shortly after notice, observed defendant driving vehicle in vicinity of violation which matched description he had been given. State v. Steinke, 88 Or App 626, 746 P2d 758 (1987)

Probable cause to believe commission of felony

Generally speaking reasonable cause to arrest and reasonable cause to search are synonymous. State v. Hodge, 11 Or App 525, 504 P2d 143 (1972)

Probable cause can be supplied by information from an informant if the information describes the accused’s criminal activity in such detail as to be susceptible of a reasonable inference that the informant had gained his information in a reliable way. State v. Hodge, 11 Or App 525, 504 P2d 143 (1972)

Officers had probable cause to go to defendant’s apartment and arrest him for illegal sale of drugs to police contact where they: (1) Observed defendant going into the apartment with what appeared to be hashish and the police contact coming out with what appeared to be a package of hashish, and; (2) recovered the hashish from the police contact. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

Discovery by one police officer of defendant’s personal property in the same room with illegal narcotics, unknown to another officer, did not constitute probable cause for that other officer to arrest and search defendant. State v. Mickelson, 18 Or App 647, 526 P2d 583 (1974), Sup Ct review denied

Where description of suspects and series of actions taken matched information provided by anonymous informant, sufficient corroboration of informant information existed to create probable cause for arrest. State v. Marsden, Moore, Cassidy, 19 Or App 742, 528 P2d 1066 (1974), Sup Ct review denied

Where, in course of burglary investigation, officer knocked on defendant’s motel room door, and when defendant opened door beer came into plain view, there was evidence that crime of minor in possession of liquor was being committed, and officer properly arrested defendant. State v. Bettles, 45 Or App 9, 607 P2d 216 (1980), Sup Ct review denied

Where, during valid stop of defendant, events developed which gave police officers well-warranted belief that defendant was perpetrator of bombing, defendant’s arrest was proper. State v. Miller, 54 Or App 323, 634 P2d 1361 (1981), Sup Ct review denied

Where shooting victim told deputy sheriff “Dan the Jeweler shot me. He drives a truck for Safeway.” and officer ordering arrest had information that defendant was known to local law enforcement officials as “Dan the Jeweler” and worked for Safeway, there was probable cause to make warrantless arrest. State v. Holterman, 69 Or App 509, 687 P2d 1097 (1984), Sup Ct review denied

Where arresting officer relied on teletype request from another jurisdiction requesting arrest of felony suspect, arrest of defendant was proper even though officer did not personally have probable cause to arrest. State v. Pratt, 309 Or 205, 785 P2d 350 (1989)

Police officers lacked probable cause to make warrantless arrest where: 1) original stop was based on fleeting observation by informer who tentatively stated that someone was “possibly” taking or putting another into car at gunpoint; 2) none of persons in car stopped by police gave any indication that crime had been committed; and 3) police officer lacked even subjective belief that defendant had committed offense, testifying that he was still investigating when defendant was arrested. State v. Morgan, 106 Or App 138, 806 P2d 713 (1991), Sup Ct review denied

Reliability of informant information is not established solely through independent corroboration, but can instead be established by facts showing informant is credible or informant’s information is reliable. State v. Rasheed, 128 Or App 439, 876 P2d 859 (1994), Sup Ct review denied

Search and seizure

Officer had probable cause to believe defendant possessed controlled substance when, after activation of patrol car’s overhead lights, officer observed defendant bend down in car as if hiding something and officer observed spoon on floorboard of vehicle that had burn marks and crystalline substance on it. State v. Hayes, 99 Or App 322, 781 P2d 1251 (1989)

COMPLETED CITATIONS: State v. Patterson, 5 Or App 438, 485 P2d 429 (1971), Sup Ct review denied; State v. Frailey, 6 Or App 8, 485 P2d 1126 (1971), Sup Ct review denied; State v. Riner, 6 Or App 72, 485 P2d 1234 (1971), Sup Ct review denied

ATTY. GEN. OPINIONS: Arrest and incarceration of persons for traffic infractions, (1977) Vol 38, p 960

LAW REVIEW CITATIONS: 8 WLJ 230-234 (1972); 4 EL 455 (1974); 20 WLR 579 (1984); 77 OLR 497 (1998); 85 OLR 325 (2006)

133.315

NOTES OF DECISIONS

This section provides immunity for making good faith arrests, not for failing to do so, and police officers who knowingly failed to enforce judicial order issued under Abuse Prevention Act are potentially liable for resulting harm to psychic and physical health of intended beneficiaries of the order. Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983)

LAW REVIEW CITATIONS: 77 OLR 497 (1998)

133.410 to 133.440

NOTES OF DECISIONS

Allegation that law enforcement officers failed to comply with these sections (Oregon Uniform Act on Fresh Pursuit), which is designed to implement extradition clause of U.S. Constitution, may serve as basis for plaintiff’s action for violation of 42 U.S.C. 1983 (federal extradition statute). Draper v. Coombs, 792 F2d 915 (1986)

133.450

See annotations under ORS 133.520 in permanent edition.

133.455

See also annotations under ORS 142.210 in permanent edition.

NOTES OF DECISIONS

Jail authorities may not, without probable cause, make a general exploratory search, seizure and analysis of all items found on arrestee during booking. State v. Kangiser, 8 Or App 368, 494 P2d 450 (1972)

To inventory arrestee’s personal belongings as part of standard booking procedure is lawful. State v. Kangiser, 8 Or App 368, 494 P2d 450 (1972)

This section does not prohibit police from inventorying at place of arrest the belongings of arrested person who is about to be transported from place of arrest to jail. State v. Swartsfager, 11 Or App 69, 501 P2d 1321 (1972)

133.460

LAW REVIEW CITATIONS: 26 WLR 471 (1990)

133.470

LAW REVIEW CITATIONS: 7 WLJ 455 (1971); 26 WLR 471 (1990)

133.515

NOTES OF DECISIONS

This section does not become operative until “handicapped person” is arrested. State v. Vu, 307 Or 419, 770 P2d 577 (1989)

133.525 to 133.703

NOTES OF DECISIONS

Infractions are “criminal” and search warrant may issue for their investigation. State v. Weist, 79 Or App 435, 720 P2d 753 (1986), aff’d 302 Or 379, 730 P2d 25 (1986)

LAW REVIEW CITATIONS: 52 OLR 139-154 (1973)

133.525

ATTY. GEN. OPINIONS: Search and seizure by inspectors and investigators of Oregon Liquor Control Commission, (1974) Vol 36, p 1066

LAW REVIEW CITATIONS: 53 OLR 416 (1974)

133.535

See also annotations under ORS 141.010 in permanent edition.

NOTES OF DECISIONS

Probable cause that crime of ex-convict in possession of concealable weapon was being committed by defendant, together with exigent circumstances including lateness of hour and fact that defendant was not in custody, justified warrantless search of defendant’s automobile. State v. Wright, 30 Or App 11, 566 P2d 185 (1977)

Absent reasonable possibility of loss of evidence, oral consent to police officers to enter living room of residence did not justify subsequent warrantless search of remainder of house conducted for purpose of “securing the residence.” State v. Drouhard, 31 Or App 1083, 572 P2d 331 (1977), Sup Ct review denied

Where defendant entered house in process of being searched, officers took defendant to kitchen, advised him of rights, “patted him down” and took his money and car keys, and using keys, entered trunk of defendant’s automobile outside house and seized briefcase found within, officers could seize, as distinguished from search, briefcase, but could not constitutionally search briefcase without warrant. State v. Groda, 285 Or 321, 591 P2d 1354 (1979)

There is no constitutional requirement that police officers who hold valid arrest warrant and have probable cause to believe subject is located on private premises must also obtain search warrant before they may enter premises to execute arrest warrant. State v. Jordan, 288 Or 391, 605 P2d 464 (1980); State v. Davis, 313 Or 246, 834 P2d 1008 (1992)

Authority to search for person for whose arrest there is probable cause, does not authorize search for persons who cannot be arrested. State v. DeKuyper, 74 Or App 534, 703 P2d 261 (1985)

Infractions are “criminal” and search warrant may issue for their investigation. State v. Weist, 79 Or App 435, 720 P2d 753 (1986), aff’d 302 Or 379, 730 P2d 25 (1986)

Where magistrate issued warrant to search motor vehicle for evidence that it had been unlawfully registered, an infraction, warrant was valid because vehicle was property which probably was used to commit or conceal offense within meaning of this section. State v. Weist, 302 Or 370, 730 P2d 26 (1986)

Where officer observed paperfolds suspected of containing controlled substance in plain view during street encounter, officer had probable cause to arrest defendant. State v. Shelton, 103 Or App 179, 796 P2d 390 (1990), as modified by 105 Or App 570, 805 P2d 698 (1991)

Evidence of crimes committed against police officers, during what turns out to be illegal entry, may not be suppressed. State v. Janicke, 103 Or App 227, 796 P2d 392 (1990)

Negative record check is not probable cause for officer to search defendant’s purse, and search cannot be justified as incident to arrest for failure to display operator’s license. State v. Scarborough, 103 Or App 231, 796 P2d 394 (1990)

Search incident to arrest for driving while suspended can justify removal of box from defendant’s pocket, but without suggestion that box contains evidence of crime for which defendant was arrested, opening box and inspecting contents is unlawful. State v. Jones, 103 Or App 316, 797 P2d 385 (1990)

Search warrants limited to items relating to specific crime did not grant police carte blanche to search for any evidence and seize anything they encountered so warrants were sufficient. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Where affidavits did not indicate that defendant resided at property, did not establish that defendant conducted any activities related to marijuana growing operation at property or did not link property with remote growing operation, there was not probable cause to believe search would lead to discovery of evidence of growing operation. State v. Stockton, 120 Or App 111, 852 P2d 227 (1993)

133.545

See also annotations under ORS 141.030 and 141.040 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 141.100)

The reliability of an informant may be established by the independent corroboration of his information, as well as by a recital that he has previously proven reliable. State v. Thacker, 9 Or App 250, 496 P2d 729 (1972)

In general

Reliability of a hearsay informant is sufficiently established when the informant is a named police officer. State v. Eismann, 21 Or App 92, 533 P2d 1379 (1975)

Where affidavit in support of search warrant application stated that named individual had contacted police officer, magistrate properly inferred that informant initiated crime report to law enforcement agency which, if false, would subject him to punishment under ORS 162.375, as well as to possible liability for malicious prosecution and punishment for perjury if called as witness and thus that informant was credible and information was sufficiently reliable to provide proper basis for search warrant issuance. State v. Montigue, 288 Or 359, 605 P2d 656 (1980)

Where affidavit supporting search warrant identified police informant, contained admissions of criminal involvement that related to object of search warrant and police partially corroborated informant’s information, sufficient basis existed for finding of probable cause to issue search warrant. State v. Carlile/Reiter/Shaw, 290 Or 161, 619 P2d 1280 (1980); State v. Evans, 110 Or App 46, 822 P2d 1198 (1991)

Where affidavit included only name of informant and informant’s admission against her penal interest with no police corroboration of information, circumstances were not sufficient to support finding of probable cause to issue search warrant. State v. Carlile/Reiter/Shaw, 290 Or 161, 619 P2d 1280 (1980)

Affidavit of police officer which merely recited facts related to him by unnamed informant and did not set forth any facts tending to establish informant’s credibility was insufficient, under this section, to support a search warrant. State v. Russell, 293 Or 469, 650 P2d 79 (1982)

Affidavit in support of search warrant was sufficient to establish probable cause that opium would be found on premises as alleged, though affidavit did not describe informant’s familiarity with opium in particular; lapse of time that will render information stale depends on facts of each case. State v. Horwedel, 66 Or App 400, 674 P2d 623 (1984), Sup Ct review denied

Informant’s cooperation in “controlled buy” was persuasive evidence of reliability. State v. Middleton, 73 Or App 592, 700 P2d 309 (1985), Sup Ct review denied

Where affidavit provided no information bearing on unnamed informant’s reliability or means by which informant obtained information, search warrant was invalid and evidence seized pursuant to it must be suppressed. State v. Smith, 73 Or App 800, 700 P2d 311 (1985); State v. Cotter/Ray, 125 Or App 210, 864 P2d 875 (1993)

When corroboration by police investigation or by named co-informant can establish reliability of unnamed informant, search warrant affidavit relying in part on information provided by unnamed informant is sufficient. State v. Souders, 74 Or App 123, 700 P2d 1050 (1985), Sup Ct review denied

Affidavit in support of search warrant was sufficient where informant who supplied information to police officer personally observed marijuana growing in defendant’s home and informant’s veracity was established by successful completion of polygraph test and lack of any criminal record. State v. Fink, 79 Or App 590, 720 P2d 372 (1986), Sup Ct review denied

Where critical information contained in search warrant affidavit was derived solely from conclusory statements and others for which informant’s source of knowledge was not shown and which were not sufficiently detailed to infer that they were based on informant’s personal observations rather than hearsay or speculation, order suppressing evidence seized was proper. State v. Hall, 79 Or App 597, 720 P2d 376 (1986), Sup Ct review denied

Where informant was named in search warrant and his information corroborated, informant was subject to liability for malicious prosecution if his report was untrue, he could be called as witness and subject to penalties for perjury and he was subject to liability for false police report and such factors could be considered in determining his veracity. State v. Fitzpatrick, 81 Or App 592, 726 P2d 950 (1986)

Search warrant affidavit stating that informant identified defendant as seller of controlled substances, that informant had purchased controlled substances from defendant, that informant had participated in controlled buy under surveillance of affiant and that informant had participated in controlled buy on previous occasion and had turned contraband over to police was sufficient to establish informant’s credibility. State v. Wilson/Helms, 83 Or App 616, 733 P2d 54 (1987)

Where informant’s information was based on personal observation, information was “cross-corroborated” among informants, informants were citizens unconnected with crime or criminal milieu, and many of facts were corroborated by police observation, magistrate could properly find that informants were credible and information reliable. State v. Prince, 93 Or App 106, 760 P2d 1356 (1988), Sup Ct review denied

Reliability of information supplied by informant twice removed from affiant was sufficient to establish probable cause for search warrant. State v. Alvarez, 93 Or App 714, 763 P2d 1204 (1988), aff’d 308 Or 143, 776 P2d 1283 (1990)

If affidavit is sufficient under this section, affidavit also satisfies standards under Oregon and United States Constitutions. State v. Coffey, 94 Or App 94, 764 P2d 605 (1988), aff’d 309 Or 342, 788 P2d 424 (1990)

Reliability of informant’s information was sufficiently established through corroboration by officer’s investigation. State v. Brust, 94 Or App 416, 765 P2d 1246 (1988)

Where defendant appeals conviction for manufacture and possession of controlled substance, and argues that information supplied by anonymous informant must be disregarded, affidavit is sufficient to show basis of knowledge for information because defendant told anonymous informant that he grew marijuana in large barn on his property. State v. Nuttall, 97 Or App 285, 776 P2d 26 (1989), Sup Ct review denied

Absent evidence as to availability of telephonic warrant, where passage of time would make “mothering test” less indicative of theft, search and seizure were permitted without warrant. State v. Lovell, 99 Or App 672, 783 P2d 1040 (1989), Sup Ct review denied

Affidavit accompanying search warrant supported conclusion that unnamed informant was speaking truth upon stating that he or she had bought cocaine inside residence and that cocaine remained in that location. State v. Alvarez, 308 Or 143, 776 P2d 1283 (1989)

Two-pronged Aguilar/Spinelli standard set forth in this section applies only to affidavits based on hearsay statements of unnamed informant not to information supplied by named informants. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

This section does not require original affidavit to be part of application for search warrant and photocopy of original signed affidavit suffices. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Polygraph examiner’s opinion, in combination with other facts presented in affidavit, establish probable cause for a search warrant. State v. Coffey, 309 Or 342, 788 P2d 424 (1990)

Affidavit in support of warrant was sufficient where affidavit reflected that informant obtained information by personal observation and that informant was credible on basis of information previously supplied to police. State v. Shutvet, 105 Or App 97, 803 P2d 287 (1990), Sup Ct review denied

Search warrant affidavit, stripped of inaccuracies and information obtained in purportedly unlawful searches, was insufficient to establish probable cause. State v. Morrison/Bartee, 107 Or App 343, 812 P2d 832 (1991), as modified by 108 Or App 766, 816 P2d 1217 (1991); State v. Gunderson, 109 Or App 621, 820 P2d 871 (1991), Sup Ct review denied

Requirement that application be by district attorney or police officer was complied with where police assisted in preparation of affidavit by private citizen, who was then presented to magistrate along with affidavit by officer. State v. Ferris, 108 Or App 81, 813 P2d 1123 (1991), Sup Ct review denied

Where informant is offering hearsay, information derived from hearsay must be analyzed under common law test to determine if, under totality of circumstances disclosed in affidavit, information is sufficiently reliable to support issuance of search warrant. State v. Young, 108 Or App 196, 816 P2d 612 (1991), Sup Ct review denied

Issuance of warrant was justified when trained and experienced officers smelled strong odor coming from defendant’s residence that officers associated with manufacture of methamphetamine. State v. Brown, 109 Or App 636, 820 P2d 878 (1991), Sup Ct review denied

Legal boundary or property line specified in warrant did not circumscribe officers’ authority to search trailer located only 40 or 50 feet from premises when trailer reasonably appeared associated with premises and was specifically described in warrant. State v. Brown, 109 Or App 636, 820 P2d 878 (1991), Sup Ct review denied

Where authorizing magistrate after issuing telephonic warrant did not certify transcript of oral affidavit, sign and file original warrant or testify at suppression hearing, there was no evidence to support finding by trial court that transcription accurately represented underlying oral affidavit under oath and warrant was therefore invalid. State v. Evans, 110 Or App 46, 822 P2d 1198 (1991)

Statement in affidavit submitted in May that affiant had previously presented affidavit to court in April and incorporation by reference and physical attachment of April affidavit are sufficient to satisfy requirement of this section for supporting affidavit, even though April affidavit was not separately sworn to or signed. State v. Moore, 113 Or App 66, 831 P2d 70 (1992), Sup Ct review denied

Unnamed person in affidavit who gives information to confidential reliable informant is “informant” within meaning of this section. State v. Worsham, 114 Or App 170, 834 P2d 1033 (1992), Sup Ct review denied

Unnamed informant’s statements to confidential reliable informant that he had purchased more than one ounce of marijuana at particular residence on prior occasions and intended to return and purchase more were statements against penal interest that demonstrated unnamed informant’s basis of information for affidavit establishing probable cause to believe marijuana would be found in residence. State v. Worsham, 114 Or App 170, 834 P2d 1033 (1992), Sup Ct review denied

Affidavit contained information from business records that corroborated evidence to allow magistrate to conclude that unnamed informants were reliable. State v. Hoffer, 114 Or App 508, 835 P2d 959 (1992), Sup Ct review denied

Where affidavit supporting search warrant included observations about marijuana growing operation, warrant issued two months after observation was sufficiently supported by probable cause that evidence of marijuana growing operation would be at defendant’s residence. State v. Bice, 115 Or App 482, 839 P2d 244 (1992), Sup Ct review denied

Oregon law requiring issuing judge to certify transcribing statement for telephonic search warrant issued pursuant to oral affidavit does not prescribe time limits for transcription, so delay between issuance and certification does not require suppression. U.S. v. Nance, 962 F2d 860 (1992)

In determining sufficiency of affidavit, court could consider information about other persons and places if information tended to show likelihood object of search would be found in defendant’s residence. State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

Corroboration of incidental information, while not helpful in establishing probable cause, demonstrated reliability of informant and was relevant to establishing informant veracity. State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

In determining whether information of crime is too stale to support warrant, likelihood that criminal activity is ongoing in nature can outweigh passage of time since event described in affidavit. State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

Magistrate is not required to make express findings of fact when issuing out-of-district warrant. State v. Chamu-Hernandez, 229 Or App 334, 212 P3d 514 (2009), Sup Ct review denied

ATTY. GEN. OPINIONS

In general

Search and seizure by inspectors and investigators of Oregon Liquor Control Commission, (1974) Vol 36, p 1066

LAW REVIEW CITATIONS

In general

53 OLR 416 (1974); 68 OLR 267, 726 (1989)

133.555

See also annotations under ORS 141.030, 141.050 and 141.060 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 141.030)

Search warrant cannot issue except on probable cause. State v. Metler, 6 Or App 356, 487 P2d 1377 (1971); State v. Fahey, 7 Or App 23, 489 P2d 980 (1971)

Probable cause must be shown from facts of affidavit. State v. Metler, 6 Or App 356, 487 P2d 1377 (1971); State v. Fahey, 7 Or App 23, 489 P2d 980 (1971)

Same factors usually create sufficient probable cause to justify arrest, search, seizure or any combination thereof. State v. Temple, 7 Or App 91, 488 P2d 1380 (1971), Sup Ct review denied, cert. denied, 406 US 973

Failure of issuing judge to make and keep record of affiant’s oral testimony supplementing affidavit as required by this section does not justify exclusion of evidence seized under search warrant where issuing judge testifies to substance of supplemental testimony establishing probable cause for issuance of warrant and defendant is not otherwise prejudiced by lack of recordation. State v. Mathis, 24 Or App 53, 544 P2d 170 (1976)

In general

The fact that one place may have been more likely spot in which to find evidence sought did not prevent magistrate from concluding that there also existed probable cause to search another property for the same or similar evidence. State v. Villagran, 294 Or 404, 657 P2d 1223 (1983)

Where affidavit established affiant’s knowledge and experience in marijuana growing operations, and information by three citizen informants suggested that marijuana growing operation existed in defendant’s structure, and where informants independently cross-corroborated each others’ information and affiant could independently corroborate by personal observation portions of informants’ information, and where power company records showed unusual power consumption in winter months and defendant’s shed had recently-installed roof vents, the magistrate did not err in finding probable cause to believe evidence of marijuana growing operation would be found in defendant’s shed. State v. Prince, 93 Or App 106, 760 P2d 1356 (1988), Sup Ct review denied

Court did not consider defendants’ challenge to certain facts within affidavit supporting warrant because affidavit contained sufficient facts which were acquired independently of challenged information to support issuance of warrant. State v. Riggs/Hirning, 99 Or App 151, 781 P2d 395 (1989), Sup Ct review denied

Where there was sufficient basis for reasonable magistrate to conclude there probably was evidence of car theft operation on defendant’s property, court erred in granting defendant’s motion to suppress evidence seized pursuant to warrant. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

Probable cause requirement for issuance of warrant was met when officer’s investigation developed information from which magistrate could conclude more likely than not that seizable things would be found in place to be searched. State v. Chambless, 111 Or App 76, 824 P2d 1183 (1992), Sup Ct review denied

Where written duplicate warrant prepared by police officer materially exceeded scope of oral authorization for telephonic warrant, search executed under duplicate warrant was unconstitutional even though it was within scope of oral authorization. State v. Martin/Dills, 170 Or App 366, 12 P3d 548 (2000)

Whether magistrate could reasonably conclude that probable cause existed to issue warrant is reviewed by appellate court independently of review conducted by trial court. State v. Castilleja, 345 Or 255, 192 P3d 1283 (2008)

COMPLETED CITATIONS: State v. Skinner, 5 Or App 259, 483 P2d 87 (1971), Sup Ct review denied

LAW REVIEW CITATIONS

Under former similar statute (ORS 141.030)

7 WLJ 456 (1971)

In general

68 OLR 267 (1989)

133.565

See also annotations under ORS 141.020 and 141.080 in permanent edition.

NOTES OF DECISIONS

A search warrant need not be directed to a specific named officer for execution. State v. Nehl, 19 Or App 586, 528 P2d 553 (1974), Sup Ct review denied

The test for specificity of warrants to search a dwelling is not the number of occupants, but the existence of separate units within the structure. State v. Willcutt, 19 Or App 93, 526 P2d 607 (1974), Sup Ct review denied

Where subunits or multiple dwelling units exist, the warrant must specify which are to be searched. State v. Willcutt, 19 Or App 93, 526 P2d 607 (1974), Sup Ct review denied

Although residents of a dwelling subjectively considered their rooms separate units, search of entire structure was reasonable when officers had no reason to know that it was other than a single dwelling house. State v. Willcutt, 19 Or App 93, 526 P2d 607 (1974), Sup Ct review denied

Even though warrant was served at approximately 8:30 a.m. but search not completed until about 16 hours later, evidence seized after 10 p.m. was properly admitted, as legislature did not intend “execute” to mean fully completed search. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Judge issuing search warrant allowing execution at any time may do so only on basis of facts presented to him during warrant application process which demonstrate necessity of nighttime search. State v. Brock, 53 Or App 785, 633 P2d 805 (1981), aff’d294 Or 15, 653 P2d 543 (1982)

Improper nighttime execution of warrant does not require that resulting evidence be suppressed. State v. Cochrane, 54 Or App 118, 634 P2d 273 (1981), aff’d 294 Or 12, 653 P2d 549 (1982)

Although the statute implicitly requires a showing of special circumstances for a nighttime search indorsement, failure to show such circumstances does not require suppression of evidence seized pursuant to nighttime warrant. State v. Ness, 54 Or App 530, 635 P2d 1025 (1981), aff’d 294 Or 8, 653 P2d 548 (1982); State v. Brock, 294 Or 15, 653 P2d 543 (1982)

Although the warrant and attachments described the property to be searched in the most technical manner possible, the description was sufficiently definite and understandable to enable police officer to distinguish that property from neighboring property and to locate and identify it “with reasonable effort.” Mercer v. State, 63 Or App 437, 664 P2d 429 (1983)

Where officers with warrant not endorsed for nighttime service executed 15 minutes before statutory end of night, violation of statute does not require suppression of evidence. State v. O’Driscoll, 65 Or App 362, 671 P2d 752 (1983), Sup Ct review denied

Fact that request for extension of warrant beyond five days allowed in this section was endorsed by judge other than judge who originally signed warrant did not require suppression of evidence seized thereunder. State v. Whalen, 90 Or App 18, 750 P2d 1168 (1988)

Search warrant expires if not executed within time requirements of this section. State v. Daw, 94 Or App 370, 765 P2d 341 (1988)

Warrant to search certain premises applies only to those premises and if during search separate premises are encountered and searched, search of latter is unauthorized without regard to whether officers could have anticipated ahead of time that they would encounter those separate premises. State v. Devine, 307 Or 341, 768 P2d 913 (1989); State v. Martini, 104 Or App 44, 799 P2d 184 (1990)

Warrant was not sufficient under this section for purpose of seizing drugs from defendant’s vehicle where defendant was mere visitor on premises described in warrant, and there was nothing to indicate that vehicles of persons visiting premises would contain evidence of manufacture or sale of drugs. State v. Leathers, 106 Or App 157, 806 P2d 718 (1991)

Where warrant contained correct address and accurate physical description of place to be searched, warrant satisfied statutory requirement of particularity in spite of fact that warrant also contained inaccurate directions and map. State v. Gomez, 107 Or App 698, 813 P2d 567 (1991)

This section implements constitutional prohibitions against general warrants and is at least as restrictive as constitutional prohibitions against general warrants found in Article I, section 9, Oregon Constitution. State v. Ingram, 313 Or 139, 831 P2d 674 (1992)

Warrant directing executing officer to search “all vehicles determined to be associated with” occupants of premises violated this section. State v. Ingram, 313 Or 139, 831 P2d 674 (1992)

Suppression of evidence is appropriate remedy for violation of this section. State v. Ingram, 313 Or 139, 831 P2d 674 (1992)

Where warrant containing incorrect house number was corrected by magistrate based on unsworn information regarding mistake, and search warrant without correction did not authorize search of defendant’s residence, trial court erred in failing to grant motion to suppress evidence seized. State v. Burton/Cunningham, 121 Or App 508, 855 P2d 1124 (1993), Sup Ct review denied

Trial court did not err by denying motion to suppress where warrant stated Lincoln County in prefatory language but correctly described location to be searched in Multnomah County. State v. Jost/Oregon-Washington Recovery Co., Inc., 122 Or App 531, 858 P2d 881 (1993)

Where warrant was executed promptly, scrivener’s error indicating issuance more than five days prior to execution did not invalidate warrant. State v. Dalton, 132 Or App 36, 887 P2d 379 (1994), Sup Ct review denied

Warrant authorizing search of all persons present was invalid where affidavit did not demonstrate probable cause to believe that all persons present would be engaged in criminal activity. State v. Reid, 319 Or 65, 872 P2d 416 (1994)

Where warrant contained detailed physical description and location information that unmistakably identified property, warrant was sufficiently particular notwithstanding incorrect property address. State v. Edwards, 149 Or App 702, 945 P2d 553 (1997), Sup Ct review denied; State v. Bush, 174 Or App 280, 25 P3d 368 (2001), Sup Ct review denied

Authority to seize objects is separate from authority to search and must be explicitly set forth in warrant. State v. Miller, 188 Or App 514, 72 P3d 643 (2003), Sup Ct review denied

Warrant may validly authorize only search or only seizure. State v. Carter, 200 Or App 262, 113 P3d 969 (2005), aff’d 342 Or 39, 147 P3d 1151 (2006)

133.575

See also annotations under ORS 141.020, 141.090 and 141.110 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 141.110)

Whether exigent circumstances exist depends on whether complying with knock and announce provision would run contrary to provision’s goal of protecting officers and avoiding unnecessary destruction of evidence. State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971), Sup Ct review denied

Evidence secured by an entry not in compliance with this section shall not be excluded. State v. Valentine, 264 Or 54, 504 P2d 84 (1972), cert. denied, 412 US 948

In general

This section does not permit officers executing warrant to take any steps, other than those authorized in warrant, to determine who was in control of premises to be searched beyond those they could take without warrant. State v. Ohling, 70 Or App 249, 688 P2d 1384 (1984), Sup Ct review denied

Magistrate has no authority to abrogate required procedures for executing warrant, including “knock-and-announce” requirement of this section. State v. Arce, 83 Or App 185, 730 P2d 1260 (1986), Sup Ct review denied

Where police officers complied with requirements of this section and knocked at outer door before prying it open, they were not required to knock and announce before entering each inner door. United States v. Johnson, 643 F Sup 1465 (1986)

Where police officers gave notice of their identity, authority and purpose, paused to allow occupants few seconds to prepare for entry and then entered premises, officers did not violate knock and announce statute and trial court did not err in denying defendant’s motion to suppress. State v. Stalbert, 99 Or App 582, 783 P2d 1005 (1989)

Where officer’s belief of danger attendant with entry of defendant’s residence was based on information of possible narcotics involvement or weapons and on report that owner of residence was member of “outlaw” motorcycle gang, officers had reasonable apprehension of peril and were not required to knock and announce before entering to execute search warrant. State v. Schultz, 109 Or App 407, 819 P2d 762 (1991), Sup Ct review denied

State has burden to prove it has complied with “appropriate notice” requirement of this section. State v. Schultz, 109 Or App 407, 819 P2d 762 (1991), Sup Ct review denied

Where occupants of house could see officers approaching and officers opened screen door, did not break down door or injure anyone, violation of this section did not require suppression of evidence seized in search. State v. Arnold, 115 Or App 258, 838 P2d 74 (1992), Sup Ct review denied

Where occupants of property were aware of identity, authority and purpose of police officers serving search warrant, notice was appropriate and officers were not required to wait before entering. State v. Bost, 317 Or 538, 857 P2d 132 (1993)

Failure to wait for arrival of warrant was not aggravated error where evidence was subject to rapid dissipation and distance prevented prompt delivery of copy. State v. Blasingame, 127 Or App 382, 873 P2d 361 (1994), Sup Ct review denied

ATTY. GEN. OPINIONS

In general

Search and seizure by inspectors and investigators of Oregon Liquor Control Commission, (1974) Vol 36, p 1066

LAW REVIEW CITATIONS

Under former similar statute (ORS 141.110)

8 WLJ 107-114, 224-228 (1972); 10 WLJ 62 (1973)

133.595

LAW REVIEW CITATIONS: 10 WLJ 157 (1974)

133.605

NOTES OF DECISIONS

Whether action taken was “reasonably necessary” to ensure officer safety must be determined based upon circumstances as they appeared at time of action. State v. Barnett, 132 Or App 520, 888 P2d 1064 (1995), Sup Ct review denied

133.615

See also annotations under ORS 141.130 and 141.190 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 141.190)

Failure of the issuing magistrate to transmit the warrant and accompanying papers to the appropriate court having jurisdiction of the crime is not reversible error unless such failure prejudiced the defendant. State v. Ronniger, 7 Or App 447, 492 P2d 298 (1971)

133.623 to 133.663

See also annotations under ORS 141.160 and 141.180 in permanent edition.

LAW REVIEW CITATIONS: 7 WLJ 450-468 (1971); 65 OLR 199, 200 (1986)

133.623

NOTES OF DECISIONS

Failure to furnish a list of things seized following a warrantless search is not grounds for automatic suppression. State v. Fitzgerald, 19 Or App 860, 530 P2d 553 (1974)

133.633

NOTES OF DECISIONS

Absent evidence that automobile was used for unlawful transportation of narcotics, state had no right to confiscate automobile seized in connection with search of defendant’s home. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup Ct review denied

Motion to return things seized should not be denied for untimeliness under this section unless state makes some showing of prejudice. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup Ct review denied

Under this section, persons are entitled only to restoration of possession of things seized and state is not required to repair or pay damages for physical injury to things during seizure. Emery v. State of Oregon, 297 Or 755, 688 P2d 72 (1984)

LAW REVIEW CITATIONS: 65 OLR 199, 205 (1986)

133.643

NOTES OF DECISIONS

Where defendant, indicted for gambling offenses, stipulated as to quantity of cards seized as evidence and cards were not needed for evidentiary purposes, it was proper to return portion of evidence to defendant. State v. Terry, 37 Or App 333, 587 P2d 1033 (1978)

Person is “entitled” to return or restoration of item seized if person can lawfully possess item. Filipetti v. Dept. of Fish and Wildlife, 224 Or App 122, 197 P3d 535 (2008)

To compel return or restoration of seized property, person must establish both entitlement to property and that item is no longer needed for evidentiary purposes. Filipetti v. Dept. of Fish and Wildlife, 224 Or App 122, 197 P3d 535 (2008)

133.653

NOTES OF DECISIONS

Certification by court having custody means formal notice and may not be inferred from court’s appointment of counsel to appeal denial of motion. State v. Shaw, 27 Or App 511, 556 P2d 717 (1976)

133.673

See also annotations under ORS 141.150 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 141.150)

The burden of showing falsity as to any material fact in the affidavit is on the defendant. State v. Wright, 11 Or App 560, 503 P2d 514 (1972), aff’d 266 Or 163, 511 P2d 1223 (1973)

Defendant was required to state by affidavit those facts actually known to him which formed a substantial basis for controverting the affidavit for a search warrant before being privileged to invoke the procedure provided by the statute. State v. Wright, 266 Or 163, 511 P2d 1223 (1973)

A motion to suppress evidence seized during a warrantless search, stating that the search was warrantless, is sufficient to place the burden of proving the reasonableness of the search on the state. State v. Miller, 269 Or 328, 524 P2d 1399 (1974)

In general

This section does not change the rule that failure to furnish the list of things seized required by ORS 133.723 is not ground for suppression of evidence. State v. Fitzgerald, 19 Or App 860, 530 P2d 553 (1974)

In a case where a motion to suppress raises more than one contention and the trial court is persuaded to grant the motion on one or more of the grounds raised, then the court must state the basis of its decision. State v. Johnson/Imel, 16 Or App 560, 519 P2d 1053 (1974), Sup Ct review denied

A motion to suppress should be as reasonably specific as possible under the circumstances in order to give the state as much notice as possible of the contentions it must be prepared to meet at the suppression hearing, and at least as much specificity should be required in a motion to suppress as is required in an oral objection made during the course of a trial. State v. Johnson/Imel, 16 Or App 560, 519 P2d 1053 (1974), Sup Ct review denied

Trial court was within its discretion in limiting defendant to written motion to suppress without oral argument. State v. Gholston, 55 Or App 790, 639 P2d 1302 (1982), Sup Ct review denied

Where defendants were represented by same lawyer who filed motion to suppress, which was denied, and defendants then hired separate lawyers who also filed motion to suppress, trial court did not abuse discretion by refusing to rehear motion. State v. Farkes, 71 Or App 155, 691 P2d 489 (1984), Sup Ct review denied

Pretrial motions to suppress evidence seized unlawfully are not answered initially by reference to federal or state constitution, but are regulated by statute. State v. Harp, 299 Or 1, 697 P2d 548 (1985)

Court did not have authority to refuse to consider merits of defendant’s motion to suppress based upon her earlier failure to appear for hearing on motion. State v. Desirey, 99 Or App 283, 782 P2d 429 (1989)

Where pretrial ruling is made on motion to suppress, failure to pursue discretionary relitigation of issue at trial does not render claim of error on pretrial ruling unpreserved. State v. Cole, 323 Or 30, 912 P2d 907 (1996)

LAW REVIEW CITATIONS

Under former similar statute (ORS 141.150)

7 WLJ 450-468 (1971)

In general

54 OLR 411 (1975)

133.693

NOTES OF DECISIONS

Testimony at suppression hearing can detract from information in affidavit but cannot add to that information. State v. Hughes, 20 Or App 493, 532 P2d 818 (1975)

State bears burden of proving validity of warrantless search made pursuant to lawful stop. State v. Wilson, 31 Or App 783, 571 P2d 554 (1977), Sup Ct review denied

In motion to controvert affidavit, defendant may challenge good faith but not objective truth of testimony offered in support of probable cause. State v. Montigue, 38 Or App 363, 590 P2d 274 (1979), aff’d 288 Or 359, 605 P2d 656 (1980)

In camera examination of confidential informant was not required where judge based finding of informant’s liability on fact that affiant was credible while defendant’s version was not. State v. Age, 38 Or App 501, 590 P2d 759 (1979)

Warrantless seizures and searches are per se unreasonable and burden of proving by preponderance of evidence validity of searches is on prosecution. State v. Groda, 285 Or 321, 591 P2d 1354 (1979)

Motion to controvert is directed solely at good faith, accuracy and truthfulness of affiant and not at underlying information supplied by informant. State v. Coatney, 44 Or App 13, 604 P2d 1269 (1980), Sup Ct review denied; State v. Dunning, 81 Or App 296, 724 P2d 924 (1986); State v. Young, 108 Or App 196, 816 P2d 612 (1991), Sup Ct review denied

Where affidavit supporting search warrant alleged father’s use of sexual devices on daughter within past six months, but daughter later stated that acts occurred as much as 18 months earlier, affidavit was sufficient to establish probable cause that devices were still in father’s house. State v. Harwood, 45 Or App 931, 609 P2d 1312 (1980), Sup Ct review denied

Where defendant meets threshold burden of this section, and introduces evidence showing affiant failed to make full disclosure of information known to him, entire supporting affadivit should be re-examined in light of controverting statements given at hearing. State v. Hermach, 53 Or App 412, 632 P2d 466 (1981), Sup Ct review denied

Trial court excises untrue or inaccurate information from affidavit then determines sufficiency of affidavit on basis of remaining accurate facts. State v. Harp, 299 Or 1, 697 P2d 548 (1985); State v. Miller, 116 Or App 174, 840 P2d 1329 (1992), as modified by 119 Or App 102, 849 P2d 563 (1993)

Where warrant was obtained on affidavit of police officer which stated, inter alia, that officer had communicated with “confidential and reliable informant” defendant could not contest good faith, accuracy and truthfulness of such non-affiant. State v. Hitt, 305 Or 458, 753 P2d 415 (1988); State v. Darroch, 117 Or App 185, 843 P2d 978 (1992), Sup Ct review denied; State v. Esplin, 314 Or 296, 839 P2d 211 (1992)

Where officer was authorized only to search defendant’s pockets for written order excluding defendant from city park where he was arrested for criminal trespass, search did not permit seizure from defendant’s pockets of piece of paper that proved to be blotter of LSD in absence of any evidence that physical characteristics of blotter could lead officer to conclude paper might be exclusion order. State v. Baker, 100 Or App 31, 784 P2d 446 (1989)

Trial court correctly denied defendant’s motion to controvert because no evidence indicated affiant did not accurately and truthfully convey information received from informants. State v. Hoffer, 114 Or App 508, 835 P2d 959 (1992), Sup Ct review denied

Where police officers received conflicting information by telephone about whether defendant was utility subscriber of property, but officers possessed written records showing defendant was not subscriber, statement in affidavit that defendant was believed to be subscriber lacked good faith. State v. Stockton, 120 Or App 111, 852 P2d 227 (1993)

Comparison of defendant’s electric usage with electric usage of previous tenant, rather than with typical usage, did not provide probable cause to believe property was used for drug operation. State v. Milks/Sales, 127 Or App 397, 872 P2d 988 (1994)

Where affidavit is partially untruthful, remedy differs from remedy for partially inaccurate affidavit; court may choose to disbelieve all of partially untruthful affidavit rather than simply excising untrue statement. State v. Keeney, 323 Or 309, 918 P2d 419 (1996)

Defendant is not required to assert privacy interest in property in order to challenge validity of warrantless search. State v. Tucker, 330 Or 85, 997 P2d 182 (2000)

Where defendant challenges information contained in affidavit in support of warrant, court reviewing sufficiency of affidavit cannot add to contents but must delete wrong information and delete inferences that are reasonable on face of affidavit but not reasonable if omitted information is disclosed. State v. Wilson, 178 Or App 163, 35 P3d 1111 (2001)

Where affidavit has been successfully controverted, suppression court reviews sufficiency of affidavit anew without giving deference to decision of issuing magistrate. State v. Culley, 198 Or App 366, 108 P3d 1179 (2005)

133.703

NOTES OF DECISIONS

In camera examination of confidential informant was not required where judge based finding of informant’s reliability on fact that affiant was credible while defendant’s version was not. State v. Age, 38 Or App 501, 590 P2d 759 (1979)

133.721

NOTES OF DECISIONS

Recording of telephone conversation by police officer-party to conversation was not “interception” subject to suppression for failure to obtain court order. State v. Underwood, 293 Or 389, 648 P2d 847 (1982)

Defendant did not have reasonable expectation that utterance made while seated in patrol car after being arrested would not be intercepted. State v. Wischnofske, 129 Or App 231, 878 P2d 1130 (1994)

133.724

See also annotations under ORS 141.720 in permanent edition.

NOTES OF DECISIONS

Oregon courts must require strict compliance with all statutory requirements leading to issuance of wiretap order. State v. Pottle, 296 Or 274, 677 P2d 1 (1984)

Wiretap was justified by inadequacy of normal investigatory procedures where witnesses to defendant’s confession were vulnerable to impeachment and defendant’s statements were inconsistent. State v. Oslund, 71 Or App 701, 693 P2d 1354 (1984), Sup Ct review denied

Legislature did not intend this section to prohibit police from recording telephone conversation when one participant has consented to recording. State v. Lissy, 85 Or App 484, 737 P2d 617 (1987), aff’d 304 Or 455, 747 P2d 345 (1987)

Wiretap application failed to set forth facts sufficient to show that normal available investigative techniques were tried in good faith and failed before wiretap order was issued. State v. Stockfleth/Lassen, 311 Or 40, 804 P2d 471 (1991)

Where first order for wiretap was found to be invalid under this section, and application for second order relied upon results of first wiretap, conversations seized under the second order were suppressed as evidence derived from illegal first order. State v. Stockfleth/Lassen, 311 Or 40, 804 P2d 471 (1991)

ORS 165.540 provision allowing police to obtain certain conversations upon existence of probable cause or exigent circumstances does not make conversations obtained without court order admissible. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

133.735

NOTES OF DECISIONS

Proper sanction for failure to minimize interception of communications not covered by warrant is suppression of all intercepted communications. State v. Tucker, 62 Or App 512, 662 P2d 345 (1983), Sup Ct review denied

ORS 165.540 provision allowing police to obtain certain conversations upon existence of probable cause or exigent circumstances does not make conversations obtained without court order, or information derived from conversations, admissible. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000); State v. Cleveland, 331 Or 531, 16 P3d 514 (2000)

133.736

NOTES OF DECISIONS

Motion to challenge admissibility of conversation intercepted under ORS 165.540 must be made in writing. State v. Rodriguez, 115 Or App 281, 840 P2d 711 (1992)

133.739

NOTES OF DECISIONS

Injury occurs when communication is intercepted and two-year period runs from that date. Gill v. City of Eugene, 103 Or App 381, 797 P2d 399 (1990), Sup Ct review denied

133.743 to 133.857

See also annotations under ORS chapter 147 in permanent edition.

NOTES OF DECISIONS

This Act was adopted to facilitate the interjurisdictional transfer of prisoners. Bishop v. Cupp, 7 Or App 349, 490 P2d 524 (1971)

Interjurisdictional transfers to clear up charges protect the prisoner’s constitutional right to a speedy trial and the state’s interest in the orderly administration of justice. Bishop v. Cupp, 7 Or App 349, 490 P2d 524 (1971)

133.747

See also annotations under ORS 147.020 in permanent edition.

NOTES OF DECISIONS

Person who violates terms of parole imposed by demanding state qualifies by virtue of underlying conviction as person who has been “charged” with crime in that state. Hidalgo v. Purcell, 6 Or App 513, 488 P2d 858 (1971), Sup Ct review denied

When criminal defendants escape from custody, apprehension is an administrative, not a judicial, function. Ault/Gilbert v. Purcell, 16 Or App 664, 519 P2d 1285 (1974), Sup Ct review denied

Person who, after arrival in Oregon, violates terms of parole, probation or other form of community supervision imposed for offense committed in demanding state has “fled” from justice. Betschart v. Spinden, 172 Or App 668, 20 P3d 202 (2001), Sup Ct review denied

133.753

See also annotations under ORS 147.030 in permanent edition.

NOTES OF DECISIONS

Unless a petitioner can prove otherwise, the certification in a requisition for extradition establishes the validity of the accompanying affidavits. Ault/Gilbert v. Purcell, 16 Or App 664, 519 P2d 1285 (1974), Sup Ct review denied

Demand under this section is sufficient if it is accompanied by documentary proof that person is duly charged with “crime” in demanding state and is subject to arrest there or that person has been convicted or sentenced in demanding state and has escaped confinement or violated terms of conditional release. State ex rel Groves v. Mason, 33 Or App 63, 575 P2d 679 (1978), Sup Ct review denied; State ex rel Hansen v. Skipper, 137 Or App 315, 904 P2d 1079 (1995)

Since Governor’s warrant furnished independent basis for accused’s arrest and detention, detention under governor’s warrant and demand documents which were inconsistent with prior fugitive warrant was not invalid where governor’s warrant and demand documents were not themselves shown to be invalid. State ex rel Eggleston v. Hatrak, 54 Or App 974, 636 P2d 1017 (1981)

133.757

See annotations under ORS 147.040 in permanent edition.

133.763

See annotations under ORS 147.050 in permanent edition.

133.767

See also annotations under ORS 147.060 in permanent edition.

NOTES OF DECISIONS

Article IV, section 2, United States Constitution, does not prohibit state from discretionary extradition of person not technically fugitive from requesting state. Whelan v. Noelle, 966 F. Supp. 992 (D. Or. 1997)

133.773

See annotations under ORS 147.070 in permanent edition.

133.777

See annotations under ORS 147.080 in permanent edition.

133.787

See annotations under ORS 147.100 in permanent edition.

133.803

NOTES OF DECISIONS

Document accompanying Fugitive Complaint issued pursuant to this section, which was properly authenticated copy of information which charged appellant with arson and contained handwritten entry of defendant’s sentence, sufficiently established basis for appellant’s incarceration. State ex rel Groves v. Mason, 33 Or App 63, 575 P2d 679 (1978), Sup Ct review denied

133.805

NOTES OF DECISIONS

Common law extraordinary powers of bail bondsmen are eliminated by judicial notice and identification safeguards of this section. State v. Epps, 36 Or App 519, 585 P2d 425 (1978), Sup Ct review denied

133.809

NOTES OF DECISIONS

This section permits a court to make release decision concerning a prisoner after issuance of Governor’s Warrant of Arrest for Extradition. Carden v. Barnes, 291 Or 515, 635 P2d 341 (1981)

133.817

See annotations under ORS 147.190 in permanent edition.

133.823

See annotations under ORS 147.200 in permanent edition.

133.825

See annotations under ORS 147.210 in permanent edition.

133.827

See annotations under ORS 147.220 in permanent edition.

133.833

See annotations under ORS 147.230 in permanent edition.

133.837

See annotations under ORS 147.235 in permanent edition.

133.843

See annotations under ORS 147.253 in permanent edition.

133.845

NOTES OF DECISIONS

A waiver of jurisdiction should be found only in those cases in which the record contains affirmative evidence that the waiver was intentional. Bishop v. Cupp, 7 Or App 349, 490 P2d 524 (1971)

133.857

See annotations under ORS 147.290 in permanent edition.