§ 4.7 Procedural Requirements

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

§ 4.7 PROCEDURAL REQUIREMENTS

§ 4.7-1 Oath or Affirmation

A search warrant must be supported by oath or affirmation. Or Const, Art I, § 9; ORS 133.545(6)-(7). Only a district attorney, a police officer, or a special agent employed by the governor may apply for a warrant. ORS 133.545(5). Police officer is defined to include, among other things, an "investigator of a district attorney's office if the investigator is or has been certified as a peace officer in this or any other state" and an "investigator of the Criminal Justice Division of the Department of Justice." ORS 133.525(2).

"Unsworn testimony may not be considered by a magistrate in deciding whether there is probable cause to support the issuance of a warrant." State v. Burton, 121 Or App 508, 511, 855 P2d 1124 (1993), rev den, 318 Or 350 (1994) (based on information from the prosecutor and the police, the issuing magistrate agreed to correct the address in the warrant, but, because there was no evidence in the record to establish that the corrected address was sworn, "it should not have been considered or incorporated into the warrant"); State v. Dinney, 1 Or App 473, 477-78, 462 P2d 698 (1969). But if, by a reasonable inference, the magistrate may find probable cause despite a scrivener's error, the magistrate may do so. See State v. Marquardt, 43 Or App 515, 603 P2d 1198 (1979) (an affidavit incorrectly stated that information was learned in 1978; the court concluded from the rest of the affidavit that the magistrate reasonably could conclude that the information was actually learned in 1979).

§ 4.7-2 The Affidavit or Record

Usually, the sworn statement accompanying the proposed warrant will take the form of an affidavit. See ORS 133.545(6)-(7). If the original affidavit is lost, an "exact copy" may be filed in its place without prejudice to the defendant. See State v. Lynch, 119 Or App 97, 100, 849 P2d 556 (1993). The burden is on the state to establish the accuracy of the copy. See § 4.7-3 (warrants by phone or transmission).

The affidavit may refer to or incorporate other documents that the reviewing magistrate may properly consider in determining whether to issue the warrant. State v. Chambless, 111 Or App 76, 79, 824 P2d 1183, rev den, 313 Or 209 (1992).

In reaching a decision, the judge considering the application for a search warrant may examine the affiant or any witnesses under oath. The judge must keep a record of any testimony taken. ORS 133.555(1). See § 4.7-3 (warrants by phone or...