Issuance of search warrant
- where executable
- form of application
Source:
Section 133.545 — Issuance of search warrant; where executable; form of application, https://www.oregonlegislature.gov/bills_laws/ors/ors133.html.
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
Attorney General 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)
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