§ 4.9 Execution

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

§ 4.9 EXECUTION

Many of the details of the execution of the warrant are governed by statute. See § 4.9-1 to § 4.9-4. The enactment of ORS 136.432 eliminates suppression of evidence as a remedy for violation of statutory provisions unless the United States Constitution or the Oregon Constitution requires suppression or a statute specifically requires suppression as a remedy. See § 4.2 (preliminary issues).

§ 4.9-1 Time Limits

Search warrants must be executed within five days of issuance. The issuing judge may extend the life of the warrant for an additional five days "by indorsement upon the face of the warrant." ORS 133.565(3). A search warrant extended beyond five days by a judge other than the issuing judge violates the statute, but suppression of the evidence is not required. State v. Whalen, 90 Or App 18, 21, 750 P2d 1168 (1988).

A search conducted pursuant to an expired warrant is invalid and results in suppression of the evidence. State v. Daw, 94 Or App 370, 372, 765 P2d 241 (1988). See § 4.8-1(b) (discussing the staleness doctrine).

§ 4.9-2 Nighttime Execution

Search warrants generally must be executed "between the hours of 7 a.m. and 10 p.m."; however, the issuing judge may authorize a different execution time "by indorsement upon the face of the warrant." ORS 133.565(3). The legislative purpose of this provision is "to avoid the possibility of terror and gunplay which may arise from forcible nighttime entries." State v. Brock, 294 Or 15, 19, 653 P2d 543 (1982). "ORS 133.565(3), which provides for a nighttime search indorsement, implicitly requires a showing of special circumstances consistent with the policy of the statute." State v. Berardinelli, 95 Or App 364, 368, 769 P2d 235, rev den, 308 Or 79 (1989).

Even when the statute is violated, suppression of the evidence is not required. Brock, 294 Or at 22.

§ 4.9-3 Knock and Announce

Before entering the premises to execute a search warrant, police officers must "give appropriate notice of [their] identity, authority and purpose" to the person in apparent control of the premises or the person to be searched. ORS 133.575(2). Three reasons have been given for this common-law-based rule: (1) preventing destruction to the homeowner's property; (2) "protect[ing] persons who might be injured by violent resistance to unannounced entries," including occupants, innocent bystanders, and police officers; and (3) protecting the homeowner's limited right to privacy, a rationale that has been criticized given...