§ 4.6 Preference for Warrants

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

§ 4.6 PREFERENCE FOR WARRANTS

The protections provided by the Fourth Amendment to the United States Constitution, and Article I, section 9, of the Oregon Constitution (quoted in § 4.1) lead to the general rule that warrantless searches "are per se unreasonable unless falling within one of the few specifically established and well-delineated exceptions to the warrant requirement." State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983) (internal quotation marks omitted). The interposition of a neutral, independent magistrate between the citizenry and the police (that is, those engaged in the "often competitive enterprise of ferreting out crime," Johnson v. United States, 333 US 10, 14, 68 S Ct 367, 92 L Ed 436 (1948)) acts as a fundamental check on the executive branch of the government and its exercise of power.

Conversely, evidence seized pursuant to a warrant is presumptively admissible. Given the desire of the appellate courts to encourage the use of search warrants by law enforcement officers, the longstanding policy of these courts are to accord great deference to the determinations made by the issuing magistrate. See Ornelas v. United States, 517 US 690, 698-99, 116 S Ct 1657, 134 L Ed 2d 911 (1996); State v. Tacker, 241 Or 597, 601-02, 407 P2d 851 (1965) (citing United States v. Ventresca, 380 US 102, 85 S Ct 741, 13 L Ed 2d 684 (1965)); State v. Young, 108 Or App 196, 200, 816 P2d 612 (1991), rev den, 314 Or 391 (1992). "[T]he reviewing court need only conclude that the issuing magistrate reasonably could conclude that the facts alleged, together with the reasonable inferences that fairly may be drawn from those facts, establish that seizable...