§ 4.1 Introduction

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 4.1 INTRODUCTION

Article I, section 9, of the Oregon Constitution provides:

No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

The Fourth Amendment to the United States Constitution similarly provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Although the text of both provisions is similar, the analysis under the Oregon Constitution is significantly different from that under the federal analysis. This concept of independent state constitutional analysis began to shift in the 1980's from the Oregon Supreme Court's prior state-law analytical practices. The court instructs that state constitutional questions are to be resolved before reaching federal issues. State v. Barnthouse, 360 Or 403, 413, 380 P3d 952 (2016); State v. Caraher, 293 Or 741, 748-50, 653 P2d 942 (1982). The state constitution will sometimes provide different or greater protection of individual rights than the United States Constitution. See chapter 5 (remedies for unlawful search) for a more thorough discussion of these...