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]

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)

§§ 133.525 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
May. 15, 2020