Arrest and Related Procedures

ORS 133.565
Contents of search warrant


(1)

A search warrant shall be dated and shall be addressed to and authorize its execution by an officer authorized by law to execute search warrants.

(2)

The warrant shall state, or describe with particularity:

(a)

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

(b)

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

(c)

The things constituting the object of the search and authorized to be seized; and

(d)

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

(3)

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

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)

Warrant authorizing search of cell phone that placed no limitation on types or time frame of data to be seized and examined was impermissibly overbroad. State v. Allen, 288 Or App 244, 406 P3d 89 (2017)

§§ 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)


Source

Last accessed
Jun. 26, 2021