ORS 133.555
Hearing


(1)

Before acting on the application, the judge may examine on oath the affiants, and the applicant and any witnesses the applicant may produce, and may call such witnesses as the judge considers necessary to a decision. The judge shall make and keep a record of any testimony taken before the judge. The record shall be admissible as evidence on any motion to suppress.

(2)

If the judge finds that the application meets the requirements of ORS 133.545 (Issuance of search warrant) and that, on the basis of the record made before the judge, there is probable cause to believe that the search will discover things specified in the application and subject to seizure under ORS 133.535 (Permissible objects of search and seizure), the judge shall issue a search warrant based on the finding of the judge and in accordance with the requirements of ORS 133.545 (Issuance of search warrant) to 133.615 (Return of the warrant). If the judge does not so find, the judge shall deny the application.

(3)

The judge may orally authorize a police officer, a district attorney or a special agent employed under ORS 131.805 (Authority to employ special agents) to sign the judge’s name on a duplicate original warrant. A duplicate original warrant shall be a search warrant for the purposes of ORS 133.535 (Permissible objects of search and seizure) to 133.615 (Return of the warrant), and it shall be returned to the judge as provided in ORS 133.615 (Return of the warrant). In such cases a judge shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant in the manner provided by law.

(4)

Until the warrant is executed, the proceedings upon application for a search warrant shall be conducted with secrecy appropriate to the circumstances. [1973 c.836 §84; 2009 c.334 §2]

See also annotations under ORS 141.030, 141.050 and 141.060 in permanent edition.

Notes of Decisions

Under former similar statute (ORS 141.030)

Search warrant cannot issue except on probable cause. State v. Metler, 6 Or App 356, 487 P2d 1377 (1971); State v. Fahey, 7 Or App 23, 489 P2d 980 (1971)

Probable cause must be shown from facts of affidavit. State v. Metler, 6 Or App 356, 487 P2d 1377 (1971); State v. Fahey, 7 Or App 23, 489 P2d 980 (1971)

Same factors usually create sufficient probable cause to justify arrest, search, seizure or any combination thereof. State v. Temple, 7 Or App 91, 488 P2d 1380 (1971), Sup Ct review denied, cert. denied, 406 US 973

Failure of issuing judge to make and keep record of affiant’s oral testimony supplementing affidavit as required by this section does not justify exclusion of evidence seized under search warrant where issuing judge testifies to substance of supplemental testimony establishing probable cause for issuance of warrant and defendant is not otherwise prejudiced by lack of recordation. State v. Mathis, 24 Or App 53, 544 P2d 170 (1976)

In general

The fact that one place may have been more likely spot in which to find evidence sought did not prevent magistrate from concluding that there also existed probable cause to search another property for the same or similar evidence. State v. Villagran, 294 Or 404, 657 P2d 1223 (1983)

Where affidavit established affiant’s knowledge and experience in marijuana growing operations, and information by three citizen informants suggested that marijuana growing operation existed in defendant’s structure, and where informants independently cross-corroborated each others’ information and affiant could independently corroborate by personal observation portions of informants’ information, and where power company records showed unusual power consumption in winter months and defendant’s shed had recently-installed roof vents, the magistrate did not err in finding probable cause to believe evidence of marijuana growing operation would be found in defendant’s shed. State v. Prince, 93 Or App 106, 760 P2d 1356 (1988), Sup Ct review denied

Court did not consider defendants’ challenge to certain facts within affidavit supporting warrant because affidavit contained sufficient facts which were acquired independently of challenged information to support issuance of warrant. State v. Riggs/Hirning, 99 Or App 151, 781 P2d 395 (1989), Sup Ct review denied

Where there was sufficient basis for reasonable magistrate to conclude there probably was evidence of car theft operation on defendant’s property, court erred in granting defendant’s motion to suppress evidence seized pursuant to warrant. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

Probable cause requirement for issuance of warrant was met when officer’s investigation developed information from which magistrate could conclude more likely than not that seizable things would be found in place to be searched. State v. Chambless, 111 Or App 76, 824 P2d 1183 (1992), Sup Ct review denied

Where written duplicate warrant prepared by police officer materially exceeded scope of oral authorization for telephonic warrant, search executed under duplicate warrant was unconstitutional even though it was within scope of oral authorization. State v. Martin/Dills, 170 Or App 366, 12 P3d 548 (2000)

Whether magistrate could reasonably conclude that probable cause existed to issue warrant is reviewed by appellate court independently of review conducted by trial court. State v. Castilleja, 345 Or 255, 192 P3d 1283 (2008)

COMPLETED CITATIONS: State v. Skinner, 5 Or App 259, 483 P2d 87 (1971), Sup Ct review denied

Law Review Citations

Under former similar statute (ORS 141.030)

7 WLJ 456 (1971)

In general

68 OLR 267 (1989)

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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