2015 ORS 133.545¹
Issuance of search warrant
  • where executable
  • form of application

(1) A search warrant may be issued only by a judge. A search warrant issued by a judge of the Supreme Court or the Court of Appeals may be executed anywhere in the state. Except as otherwise provided in subsections (2), (3) and (4) of this section, a search warrant issued by a judge of a circuit court may be executed only within the judicial district in which the court is located. A search warrant issued by a justice of the peace may be executed only within the county in which the justice court is located. A search warrant issued by a municipal judge authorized to exercise the powers and perform the duties of a justice of the peace may be executed only in the municipality in which the court is located.

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

(3) Notwithstanding subsection (1) of this section, a circuit court judge duly assigned pursuant to ORS 1.615 (Appointment pro tempore to tax court or circuit court) to serve as a judge pro tempore in a circuit court may authorize execution of a search warrant in any judicial district in which the judge serves as judge pro tempore if the application requesting the warrant includes an affidavit showing that a regularly elected or appointed circuit court judge for the judicial district is not available, whether by reason of conflict of interest or other reason, to issue the warrant within a reasonable time.

(4) Notwithstanding subsection (1) of this section, a circuit court judge may authorize execution of a search warrant outside the judicial district in which the court is located if the judge finds that:

(a) The search relates to one of the following offenses involving a victim who was 65 years of age or older at the time of the offense:

(A) Criminal mistreatment in the first degree as described in ORS 163.205 (Criminal mistreatment in the first degree) (1)(b)(D) or (E);

(B) Identity theft;

(C) Aggravated identity theft;

(D) Computer crime;

(E) Fraudulent use of a credit card;

(F) Forgery in any degree;

(G) Criminal possession of a forged instrument in any degree;

(H) Theft in any degree; or

(I) Aggravated theft in the first degree;

(b) The objects of the search consist of financial records; and

(c) The person making application for the search warrant is not able to ascertain at the time of the application the proper place of trial for the offense described in paragraph (a) of this subsection.

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

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

(7) Instead of the written affidavit described in subsection (6) of this section, the judge may take an oral statement under oath. The oral statement shall be recorded and a copy of the recording submitted to the judge who took the oral statement. In such cases, the judge shall certify that the recording of the sworn oral statement is a true recording of the oral statement under oath and shall retain the recording as part of the record of proceedings for the issuance of the warrant. The recording shall constitute an affidavit for the purposes of this section. The applicant shall retain a copy of the recording and shall provide a copy of the recording to the district attorney if the district attorney is not the applicant.

(8)(a) In addition to the procedure set out in subsection (7) of this section, the proposed warrant and the affidavit may be sent to the court by facsimile transmission or any similar electronic transmission that delivers a complete printable image of the signed affidavit and proposed warrant. The affidavit may have a notarized acknowledgment, or the affiant may swear to the affidavit by telephone. A judge administering an oath telephonically under this subsection must execute a declaration that recites the manner and time of the oath’s administration. The declaration must be filed with the return.

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

(A) The court may transmit the signed warrant to the person making application under subsection (5) of this section by means of facsimile transmission or similar electronic transmission, as described in paragraph (a) of this subsection. The court shall file the original signed warrant and a printed image of the application with the return.

(B) The person making application shall deliver the original signed affidavit to the court with the return. If the affiant swore to the affidavit by telephone, the affiant must so note next to the affiant’s signature on the affidavit. [1973 c.836 §83; 1985 c.344 §1; 1989 c.983 §3; 1995 c.658 §73; 1999 c.56 §1; 2007 c.547 §1; 2009 c.334 §1; 2013 c.155 §11; 2013 c.225 §1; 2015 c.415 §1]

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 (Initiating a false report), 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)

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)


1 Legislative Counsel Committee, CHAPTER 133—Arrest and Related Procedures; Search and Seizure; Extradition, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors133.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 133, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano133.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.