ORS 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]

Source: Section 133.693 — Challenge to truth of evidence, https://www.­oregonlegislature.­gov/bills_laws/ors/ors133.­html.

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)

133.005
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
133.035
Ex parte emergency protective orders
133.055
Criminal citation
133.060
Cited person to appear before magistrate
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
133.070
Criminal citation where arrest without warrant is authorized for ordinance violation
133.073
Electronic filing of criminal citation
133.076
Failure to appear on criminal citation
133.110
Issuance
133.120
Authority to issue warrant
133.140
Content and form of warrant
133.220
Who may make arrest
133.225
Arrest by private person
133.235
Arrest by peace officer
133.239
Arrest by parole and probation officer
133.245
Arrest by federal officer
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
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
133.379
Duty of peace officer to arrest and prosecute violators of cruelty to animals laws
133.381
Procedure in arrests for violation of certain restraining orders
133.400
Recording of custodial interviews of adults
133.402
Recording of custodial interviews of juveniles
133.403
Voluntariness of statement by juvenile during custodial interview
133.405
Definitions for ORS 133.405 to 133.408
133.407
Immunities and liabilities
133.408
Application of ORS 133.405 and 133.407
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
133.450
Return of arrest warrant
133.455
Receipts for property taken from person in custody
133.460
Forfeiture of conveyances used unlawfully to conceal or transport stolen property
133.465
Seizure of stolen animals or other property being transported
133.470
Sale of seized property
133.475
Notice to owner
133.485
Perishable property
133.495
Retention of property to answer order of court
133.515
Interpreter to be made available to person with a disability
133.518
Duty of peace officer to request emergency medical services
133.525
Definitions for ORS 133.525 to 133.703
133.535
Permissible objects of search and seizure
133.537
Protection of things seized
133.539
Obtaining information from portable electronic devices
133.545
Issuance 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
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
133.663
Disputed possession rights
133.673
Motions to suppress evidence
133.693
Challenge to truth of evidence
133.703
Identity of informants
133.705
Definitions for ORS 133.705 to 133.717
133.707
Custodian’s obligation to preserve biological evidence
133.709
Notice of intent to dispose
133.713
Inventory
133.715
Order
133.717
Provision of notice or order to defendant
133.721
Definitions for ORS 41.910 and 133.721 to 133.739
133.723
Records confidential
133.724
Order for interception of communications
133.726
Interception of oral communication without order
133.727
Proceeding under expired order prohibited
133.729
Recording intercepted communications
133.731
Inventory
133.733
Procedure for introduction as evidence
133.735
Suppression of intercepted communications
133.736
Suppression of intercepted oral communication
133.737
Disclosure and use of intercepted communications
133.739
Civil damages for willful interception, disclosure or use of communications
133.741
Law enforcement agency policies and procedures regarding video and audio recordings
133.743
Definitions for ORS 133.743 to 133.857
133.745
Determination of security requirements to carry out extradition
133.747
Fugitives from other states
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
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
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
133.865
Arrest and Return Account
133.870
Release of booking photo by law enforcement agency
133.875
Removal of booking photo from publication or website
133.992
Penalties
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