USA Statutes : oregon
Title : TITLE 14 PROCEDURE IN CRIMINAL MATTERS GENERALLY
Chapter : Chapter 133 Arrest and Related Procedures; Search and Seizure; Extradition
(1) A peace officer may issue a criminal citation to a
person if the peace officer has probable cause to believe that the person
has committed a misdemeanor or has committed any felony that is subject
to misdemeanor treatment under ORS 161.705. The peace officer shall
deliver a copy of the criminal citation to the person. The criminal
citation shall require the person to appear at the court of the
magistrate before whom the person would be taken pursuant to ORS 133.450
if the person were arrested for the offense.
(2)(a) Notwithstanding the provisions of subsection (1) of this
section, when a peace officer responds to an incident of domestic
disturbance and has probable cause to believe that an assault has
occurred between family or household members, as defined in ORS 107.705,
or to believe that one such person has placed the other in fear of
imminent serious physical injury, the officer shall arrest and take into
custody the alleged assailant or potential assailant.
(b) When the peace officer makes an arrest under paragraph (a) of
this subsection, the peace officer is not required to arrest both persons.
(c) When a peace officer makes an arrest under paragraph (a) of
this subsection, the peace officer shall make every effort to determine
who is the assailant or potential assailant by considering, among other
factors:
(A) The comparative extent of the injuries inflicted or the
seriousness of threats creating a fear of physical injury;
(B) If reasonably ascertainable, the history of domestic violence
between the persons involved;
(C) Whether any alleged crime was committed in self-defense; and
(D) The potential for future assaults.
(3) Whenever any peace officer has reason to believe that a family
or household member, as defined in ORS 107.705, has been abused as
defined in ORS 107.705 or that an elderly person or a person with
disabilities has been abused as defined in ORS 124.005, that officer
shall use all reasonable means to prevent further abuse, including
advising each person of the availability of a shelter or other services
in the community and giving each person immediate notice of the legal
rights and remedies available. The notice shall consist of handing each
person a copy of the following statement:
___________________________________________________________________________
___
IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE OR ABUSE, you can ask
the district attorney to file a criminal complaint. You also have the
right to go to the circuit court and file a petition requesting any of
the following orders for relief: (a) An order restraining your attacker
from abusing you; (b) an order directing your attacker to leave your
household; (c) an order preventing your attacker from entering your
residence, school, business or place of employment; (d) an order awarding
you or the other parent custody of or parenting time with a minor child
or children; (e) an order restraining your attacker from molesting or
interfering with minor children in your custody; (f) an order awarding
you other relief the court considers necessary to provide for your or
your children’s safety, including emergency monetary assistance. Such
orders are enforceable in every state.
You may also request an order awarding support for minor children
in your care or for your support if the other party has a legal
obligation to support you or your children.
You also have the right to sue for losses suffered as a result of
the abuse, including medical and moving expenses, loss of earnings or
support, and other out-of-pocket expenses for injuries sustained and
damage to your property. This can be done without an attorney in small
claims court if the total amount claimed is under $3,500.
Similar relief may also be available in tribal courts.
For further information you may contact:_____.
___________________________________________________________________________
___[1969 c.244 §2; 1977 c.845 §1; 1981 c.779 §1; 1991 c.303 §1; 1995 c.666
§23; 1997 c.707 §28; 1999 c.617 §1; 1999 c.738 §8; 1999 c.1051 §54; 2003
c.264 §8](1) A person who has been served with a
criminal citation shall appear before a magistrate of the county in which
the person was cited at the time, date and court specified in the
citation, which shall not be later than 30 days after the date the
citation was issued.
(2) If the cited person fails to appear at the time, date and court
specified in the criminal citation, and a complaint or information is
filed, the magistrate shall issue a warrant of arrest, upon application
for its issuance, upon the person’s failure to appear. [1969 c.244 §5;
1983 c.661 §1; 1997 c.548 §1; 1999 c.1051 §55] If a criminal citation is
issued as described in ORS 133.055, the peace officer shall serve one
copy on the person arrested and shall, as soon as practicable, file a
duplicate copy with the magistrate specified in ORS 133.055 along with
proof of service. [1969 c.244 §6; 1999 c.1051 §58] (1) A criminal citation may
include a complaint or may be issued without a form of complaint. If a
criminal citation is issued without a complaint, the citation must be in
the form provided by ORS 133.068. If a criminal citation is issued with a
complaint, the citation must be in the form provided by ORS 133.069.
(2) A criminal citation may be issued with a complaint only if a
procedure for the issuance of a citation with a complaint has been
authorized by the district attorney for the county in which the crime is
alleged to have been committed.
(3) A complaint or information may be filed with the court before
or after the issuance of a criminal citation without a complaint. Nothing
in this section affects the requirement that a complaint or information
be filed for the crime charged.
(4) More than one crime may be charged in a single criminal
citation. However, if a defendant is to be charged with driving while
under the influence of intoxicants in violation of ORS 813.010, a
separate criminal citation must be used for the charge of driving while
under the influence of intoxicants and that citation may not be used to
charge the defendant with the commission of any other crime.
(5) Uniform citation forms for crimes shall be adopted by the
Supreme Court under ORS 1.525. In adopting those forms, the Supreme Court
may combine the requirements for criminal citations under this section
and the requirements for violation citations under ORS 153.045. A crime
and a violation may not be charged on the same citation form. [1999
c.1051 §57] A
criminal citation issued without a form of complaint must contain:
(1) The name of the court at which the cited person is to appear.
(2) The name of the person cited.
(3) A brief description of the offense for which the person is
charged, the date, time and place at which the offense occurred, the date
on which the citation was issued, and the name of the peace officer who
issued the citation.
(4) The date, time and place at which the person cited is to appear
in court, and a summons to so appear.
(5) Whether a complaint or information had been filed with the
court at the time the citation was issued.
(6) If the arrest was made by a private party, the name of the
arresting person.
(7) The following:
___________________________________________________________________________
___READ CAREFULLY
This citation is not a complaint or an information. A complaint or
an information may be filed and you will be provided a copy thereof at
the time of your first appearance. You MUST appear in court at the time
set in the citation. IF YOU FAIL TO APPEAR AND A COMPLAINT OR INFORMATION
HAS BEEN FILED, THE COURT WILL IMMEDIATELY ISSUE A WARRANT FOR YOUR
ARREST.
___________________________________________________________________________
___[1999 c.1051 §60](1) A criminal citation issued with a form of complaint
must contain:
(a) The name of the court at which the cited person is to appear.
(b) The name of the person cited.
(c) A complaint containing at least the following:
(A) The name of the court, the name of the state or of the city or
other public body in whose name the action is brought and the name of the
defendant.
(B) A statement or designation of the crime that can be readily
understood by a person making a reasonable effort to do so and the date,
time and place at which the crime is alleged to have been committed.
(C) A form of certificate in which the peace officer must certify
that the peace officer has sufficient grounds to believe, and does
believe, that the person named in the complaint committed the offense
specified in the complaint. A certificate conforming to this subparagraph
shall be deemed equivalent to a sworn complaint.
(d) The date on which the citation was issued, and the name of the
peace officer who issued the citation.
(e) The date, time and place at which the person cited is to appear
in court, and a summons to so appear.
(f) If the arrest was made by a private party, the name of the
arresting person.
(2) The district attorney for the county shall review any criminal
citation issued with a form of complaint that is to be filed in a circuit
or justice court. The review must be done before the complaint is filed.
(3) If the complaint does not conform to the requirements of this
section, the court shall set the complaint aside upon motion of the
defendant made before entry of a plea. A pretrial ruling on a motion to
set aside may be appealed by the state.
(4) A court may amend a complaint at its discretion. [1999 c.1051
§61; 2001 c.870 §10; 2005 c.566 §1]Note: Section 3, chapter 566, Oregon Laws 2005, provides:
Sec. 3. The use prior to the effective date of this 2005 Act [July
20, 2005] of a certificate required by ORS 133.069 or 153.045 that used
the term “sufficient grounds” rather than “reasonable grounds” is
validated. [2005 c.566 §3](1) In any instance in which a person
is subject to arrest without a warrant for violation of an ordinance of a
county, city or municipal corporation, any peace officer who is
authorized to make the arrest may make the arrest or in lieu of taking
the person into custody the officer may issue and serve a criminal
citation to the person to appear at any court within the jurisdictional
unit by which the officer is authorized to act.
(2) Any criminal citation issued under this section must meet the
requirements of ORS 133.055 to 133.076.
(3) The person cited shall appear before the court in which the
person’s appearance is required at the time, date and court specified in
the criminal citation. If the person fails to appear at that time and a
complaint is filed, the court shall issue a warrant for the person’s
arrest upon application for its issuance. [1969 c.244 §8; 1983 c.661 §2;
1999 c.1051 §62] (1)
Notwithstanding ORS 133.065, a peace officer, following procedures
established by court rule, may file a criminal citation with or without a
form of complaint with the court by electronic means, without an actual
signature of the officer, in lieu of filing a duplicate paper copy of the
citation. A peace officer who files a criminal citation under this
section is deemed to certify the citation and any complaint included with
the citation by that filing and has the same rights, responsibilities and
liabilities in relation to the citation and any complaint included with
the citation as an officer has in relation to citations and complaints
that are filed with the court in paper form and are certified by actual
signature.
(2) A court may allow electronic filing of criminal citations as
described under subsection (1) of this section. Procedures established to
allow electronic filing of criminal citations under this section shall be
established by court rule and shall include procedures necessary to
ensure that:
(a) An electronically filed criminal citation with or without a
form of complaint includes all information required on a uniform citation
adopted by the Supreme Court under ORS 1.525.
(b) An electronically filed criminal citation with or without a
form of complaint is verifiable as being filed by a specific peace
officer.
(c) Members of the public can obtain copies of and review a
criminal citation with or without a form of complaint that is
electronically filed and maintained under this section in the same manner
as the manner used for those filed on paper.
(3) For a criminal citation with a form of complaint issued under
ORS 133.069, the district attorney’s review required by ORS 133.069 and,
if necessary, amendments for legal sufficiency, must be completed before
the electronic filing of the citation with the form of complaint is made
with a court under this section. [2005 c.566 §15] (1) A person
commits the offense of failure to appear on a criminal citation if the
person has been served with a criminal citation issued under ORS 133.055
to 133.076 and the person knowingly fails to do any of the following:
(a) Make an appearance in the manner required by ORS 133.060.
(b) Make appearance at the time set for trial in the criminal
proceeding.
(c) Appear at any other time required by the court or by law.
(2) Failure to appear on a criminal citation is a Class A
misdemeanor. [1999 c.1051 §64 (enacted in lieu of 133.075)]WARRANT OF ARREST If an information or a complaint has
been filed with the magistrate, and the magistrate is satisfied that
there is probable cause to believe that the person has committed the
crime specified in the information or complaint, the magistrate shall
issue a warrant of arrest. If the offense is subject to issuance of a
criminal citation under ORS 133.055, the court may authorize a peace
officer to issue and serve a criminal citation in lieu of arrest.
[Amended by 1969 c.244 §3; 1973 c.836 §68; 1983 c.661 §4; 1999 c.1051 §66] A judge of the Supreme Court or
the Court of Appeals may issue a warrant of arrest for any crime
committed or triable within the state, and any other magistrate mentioned
in ORS 133.030 may issue a warrant for any crime committed or triable
within the territorial jurisdiction of the magistrate’s court. [Amended
by 1969 c.198 §60; 1973 c.836 §69; 1977 c.746 §2; 1983 c.661 §5] A warrant of arrest shall:
(1) Be in writing;
(2) Specify the name of the person to be arrested, or if the name
is unknown, shall designate the person by any name or description by
which the person can be identified with reasonable certainty;
(3) State the nature of the crime;
(4) State the date when issued and the county or city where issued;
(5) Be in the name of the State of Oregon or the city where issued,
be signed by and bear the title of the office of the magistrate having
authority to issue a warrant for the crime charged;
(6) Command any peace officer, or any parole and probation officer
for a person who is being supervised by the Department of Corrections or
a county community corrections agency, to arrest the person for whom the
warrant was issued and to bring the person before the magistrate issuing
the warrant, or if the magistrate is absent or unable to act, before the
nearest or most accessible magistrate in the same county;
(7) Specify that the arresting officer may enter premises, in which
the officer has probable cause to believe the person to be arrested to be
present, without giving notice of the officer’s authority and purpose, if
the issuing judge has approved a request for such special authorization;
and
(8) Specify the amount of security for release. [Amended by 1961
c.443 §1; 1973 c.836 §70; 1977 c.746 §3; 1983 c.661 §6; 2005 c.668 §3]ARREST An arrest may be effected by:
(1) A peace officer under a warrant;
(2) A peace officer without a warrant;
(3) A parole and probation officer under a warrant as provided in
ORS 133.239;
(4) A parole and probation officer without a warrant for violations
of conditions of probation, parole or post-prison supervision;
(5) A private person; or
(6) A federal officer. [Amended by 1981 c.808 §2; 2005 c.668 §4] (1) A private person may arrest
another person for any crime committed in the presence of the private
person if the private person has probable cause to believe the arrested
person committed the crime. A private person making such an arrest shall,
without unnecessary delay, take the arrested person before a magistrate
or deliver the arrested person to a peace officer.
(2) In order to make the arrest a private person may use physical
force as is justifiable under ORS 161.255. [1973 c.836 §74] (1) A peace officer may
arrest a person for a crime at any hour of any day or night.
(2) A peace officer may arrest a person for a crime, pursuant to
ORS 133.310 (1), whether or not such crime was committed within the
geographical area of such peace officer’s employment, and the peace
officer may make such arrest within the state, regardless of the situs of
the offense.
(3) The officer shall inform the person to be arrested of the
officer’s authority and reason for the arrest, and, if the arrest is
under a warrant, shall show the warrant, unless the officer encounters
physical resistance, flight or other factors rendering this procedure
impracticable, in which case the arresting officer shall inform the
arrested person and show the warrant, if any, as soon as practicable.
(4) In order to make an arrest, a peace officer may use physical
force as justifiable under ORS 161.235, 161.239 and 161.245.
(5) In order to make an arrest, a peace officer may enter premises
in which the officer has probable cause to believe the person to be
arrested to be present.
(6) If after giving notice of the officer’s identity, authority and
purpose, the officer is not admitted, the officer may enter the premises,
and by a breaking, if necessary.
(7) A person may not be arrested for a violation except to the
extent provided by ORS 153.039 and 810.410. [1973 c.836 §71; 1981 c.818
§1; 1999 c.1051 §67] (1) As
used in this section, “parole and probation officer” has the meaning
given that term in ORS 181.610.
(2) A parole and probation officer may arrest a person if the
person is being supervised by the Department of Corrections or a county
community corrections agency.
(3)(a) A parole and probation officer making an arrest under this
section shall, without unnecessary delay, take the arrested person before
a magistrate or deliver the arrested person to a peace officer.
(b) The parole and probation officer retains authority over the
arrested person only until the person appears before a magistrate or
until the law enforcement agency having general jurisdiction over the
area in which the arrest took place assumes responsibility for the
person. [2005 c.668 §6]Note: Sections 7 and 8, chapter 668, Oregon Laws 2005, provide:
Sec. 7. (1) There is created the Task Force on Parole and Probation
Officer Arrest Authority consisting of 14 members appointed jointly by
the President of the Senate and the Speaker of the House of
Representatives as follows:
(a) One member from among members of the Senate and the House of
Representatives.
(b) Two members representing sheriffs from persons recommended by
the Oregon State Sheriffs’ Association.
(c) Two members representing community corrections directors from
persons recommended by a statewide association of community corrections
directors.
(d) One member representing the Department of Corrections from
persons recommended by the Department of Corrections.
(e) One member representing the defense bar from persons
recommended by a statewide association of defense attorneys.
(f) Three members representing state, county and municipal
employees from among persons recommended by a union representing federal,
state, county and municipal employees.
(g) Three members representing parole and probation officers from
among persons recommended by a statewide association of parole and
probation officers.
(h) One member representing Oregon counties from among persons
recommended by the Association of Oregon Counties.
(2) The task force shall study the use of the arrest authority
given parole and probation officers by section 6 of this 2005 Act
[133.239].
(3) A majority of the members of the task force constitutes a
quorum for the transaction of business.
(4) Official action by the task force requires the approval of a
majority of the members of the task force.
(5) The task force shall elect one of its members to serve as
chairperson.
(6) If there is a vacancy for any cause, the appointing authority
shall make an appointment to become immediately effective.
(7) The task force shall meet at times and places specified by the
call of the chairperson or of a majority of the members of the task force.
(8) The task force may adopt rules necessary for the operation of
the task force.
(9) The task force shall submit a report, and may include
recommendations for legislation, to an interim committee related to
parole and probation officers no later than October 1, 2006. The task
force shall:
(a) Include in the report recommendations on whether parole and
probation officers should have authority to make arrests that is greater
than that conferred by section 6 of this 2005 Act; and
(b) Identify in the report areas of agreement and disagreement
about the appropriate arrest authority for parole and probation officers.
(10) Members of the task force who are not members of the
Legislative Assembly are not entitled to compensation or reimbursement
for expenses and serve as volunteers on the task force.
(11) All agencies of state government, as defined in ORS 174.111,
are directed to assist the task force in the performance of its duties
and, to the extent permitted by laws relating to confidentiality, to
furnish such information and advice as the members of the task force
consider necessary to perform their duties.
(12) The member of the Legislative Assembly appointed to the task
force is a nonvoting member of the task force and acts in an advisory
capacity only.
(13) All appointments to the task force made under subsection (1)
of this section must be completed by January 1, 2006.
(14) The task force shall have its first meeting on or before
February 1, 2006. [2005 c.668 §7]
Sec. 8. Section 7 of this 2005 Act is repealed on the date of the
. [2005 c.668 §8] (1) A federal officer
may arrest a person:
(a) For any crime committed in the federal officer’s presence if
the federal officer has probable cause to believe the person committed
the crime.
(b) For any felony or Class A misdemeanor if the federal officer
has probable cause to believe the person committed the crime.
(c) When rendering assistance to or at the request of a law
enforcement officer, as defined in ORS 414.805.
(d) When the federal officer has received positive information in
writing or by telephone, telegraph, teletype, radio, facsimile machine or
other authoritative source that a peace officer holds a warrant for the
person’s arrest.
(2) The federal officer shall inform the person to be arrested of
the federal officer’s authority and reason for the arrest.
(3) In order to make an arrest, a federal officer may use physical
force as is justifiable and authorized of a peace officer under ORS
161.235, 161.239 and 161.245.
(4)(a) A federal officer making an arrest under this section
without unnecessary delay shall take the arrested person before a
magistrate or deliver the arrested person to a peace officer.
(b) The federal officer retains authority over the arrested person
only until the person appears before a magistrate or until the law
enforcement agency having general jurisdiction over the area in which the
arrest took place assumes responsibility for the person.
(5) A federal officer when making an arrest for a nonfederal
offense under the circumstances provided in this section shall have the
same immunity from suit as a state or local law enforcement officer.
(6) A federal officer is authorized to make arrests under this
section upon certification by the Department of Public Safety Standards
and Training that the federal officer has received proper training to
enable that officer to make arrests under this section. [1981 c.808 §3;
1993 c.254 §2; 1995 c.79 §48; 1997 c.853 §34] (1) A
peace officer may arrest a person without a warrant if the officer has
probable cause to believe that the person has committed any of the
following:
(a) A felony.
(b) A misdemeanor.
(c) An unclassified offense for which the maximum penalty allowed
by law is equal to or greater than the maximum penalty allowed for a
Class C misdemeanor.
(d) Any other crime committed in the officer’s presence.
(2) A peace officer may arrest a person without a warrant when the
peace officer is notified by telegraph, telephone, radio or other mode of
communication by another peace officer of any state that there exists a
duly issued warrant for the arrest of a person within the other peace
officer’s jurisdiction.
(3) A peace officer shall arrest and take into custody a person
without a warrant when the peace officer has probable cause to believe
that:
(a) There exists an order issued pursuant to ORS 30.866, 107.095
(1)(c) or (d), 107.716, 107.718, 124.015, 124.020, 163.738 or 419B.845
restraining the person;
(b) A true copy of the order and proof of service on the person has
been filed as required in ORS 107.720, 124.030, 163.741 or 419B.845; and
(c) The person to be arrested has violated the terms of that order.
(4) A peace officer shall arrest and take into custody a person
without a warrant if:
(a) The person protected by a foreign restraining order as defined
by ORS 24.190 presents a copy of the foreign restraining order to the
officer and represents to the officer that the order supplied is the most
recent order in effect between the parties and that the person restrained
by the order has been personally served with a copy of the order or has
actual notice of the order; and
(b) The peace officer has probable cause to believe that the person
to be arrested has violated the terms of the foreign restraining order.
(5) A peace officer shall arrest and take into custody a person
without a warrant if:
(a) The person protected by a foreign restraining order as defined
by ORS 24.190 has filed a copy of the foreign restraining order with a
court or has been identified by the officer as a party protected by a
foreign restraining order entered in the Law Enforcement Data System or
in the databases of the National Crime Information Center of the United
States Department of Justice; and
(b) The peace officer has probable cause to believe that the person
to be arrested has violated the terms of the foreign restraining order.
(6) A peace officer shall arrest and take into custody a person
without a warrant if the peace officer has probable cause to believe:
(a) The person has been charged with an offense and is presently
released as to that charge under ORS 135.230 to 135.290; and
(b) The person has failed to comply with a no contact condition of
the release agreement. [Amended by 1963 c.448 §1; 1973 c.836 §72; 1974
c.42 §2; 1977 c.845 §2; 1979 c.522 §2; 1981 c.780 §8; 1981 c.818 §2; 1983
c.338 §887; 1983 c.661 §7; 1987 c.730 §4a; 1989 c.171 §15; 1991 c.208 §2;
1991 c.222 §2; 1993 c.626 §10; 1993 c.731 §3; 1995 c.353 §11; 1995 c.666
§24; 1997 c.249 §45; 1997 c.863 §2; 1999 c.250 §2; 1999 c.1040 §8; 1999
c.1051 §68; 2005 c.753 §1] (1) No peace
officer shall be held criminally or civilly liable for making an arrest
pursuant to ORS 133.055 (2) or 133.310 (3) or (5) provided the peace
officer acts in good faith and without malice.
(2) No peace officer shall be criminally or civilly liable for any
arrest made under ORS 133.310 (4) if the officer reasonably believes that:
(a) A document or other writing supplied to the officer under ORS
133.310 (4) is an accurate copy of a foreign restraining order as defined
by ORS 24.190 and is the most recent order in effect between the parties;
and
(b) The person restrained by the order has been personally served
with a copy of the order or has actual notice of the order. [1977 c.845
§9; subsection (2) enacted as 1991 c.222 §3; 1999 c.250 §3]Note: 133.315 (2) was enacted into law by the Legislative Assembly
but was not added to or made a part of ORS chapter 133 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation.(1) Any person who provides to a peace
officer a copy of a writing purporting to be a foreign restraining order
as defined by ORS 24.190 knowing that no valid foreign restraining order
is in effect shall be guilty of a Class A misdemeanor.
(2) Any person who represents to a police officer that a foreign
restraining order is the most recent order in effect between the parties
or that the person restrained by the order has been personally served
with a copy of the order or has actual notice of the order knowing that
the representation is false commits a Class A misdemeanor. [1991 c.222
§4; 1999 c.250 §4]Note: 133.318 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 133 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.When a crime is committed in the presence of a magistrate,
the magistrate may, by a verbal or written order, command any person to
arrest the offender and may thereupon proceed as if the offender had been
brought before the magistrate upon a warrant of arrest. [Amended by 1973
c.836 §73; 1983 c.661 §8]
Whenever any person has been indicted or accused on oath of any public
offense, or thereof convicted, and a warrant of arrest has been issued,
the magistrate issuing the warrant, or any judge of the Supreme Court, or
of the Court of Appeals, or of a circuit or county court, may indorse
thereon an order signed by the magistrate or judge authorizing the
service thereof by telegraph. Thereupon the warrant and order may be sent
by telegraph to any marshal, sheriff, constable or police officer and on
receipt of the telegraphic copy thereof, as defined in ORS 165.840, by
any such officer, the officer shall have the same authority and be under
the same obligations to arrest, take into custody and detain the person
as if the original warrant of arrest with the proper direction for its
service duly indorsed thereon had been placed in the hands of the
officer. The telegraphic copy shall be entitled to full faith and credit
and shall have the same force and effect in all courts and places as the
original. Prior to indictment or conviction, no such order shall be made
by any officer unless in the judgment of the officer there is probable
cause to believe the accused person guilty of the offense charged, but
the making of such order by any officer is prima facie evidence of the
regularity thereof and of all proceedings prior thereto. The original
warrant and order, or a copy thereof certified by the officer making the
order, shall be preserved in the telegraph office from which the same is
sent and in telegraphing the same, the original or the certified copy may
be used. [Amended by 1969 c.198 §61; 1991 c.67 §26] As used in ORS
133.375 to 133.381 and 156.705:
(1) “Animal” has the meaning provided in ORS 167.310.
(2) “Owner” or “person” includes corporations as well as
individuals. [Formerly 770.210; 1985 c.662 §11](1) Any person violating ORS 167.315
to 167.333 or 167.340 may be arrested and held without warrant, in the
same manner as in the case of persons found breaking the peace.
(2) The person making the arrest, with or without warrant, shall
use reasonable diligence to give notice thereof to the owners of the
animals found in the charge of the person arrested, and shall properly
care and provide for such animals until the owners or their duly
authorized agents take charge of them; provided, such owners or agents
shall claim and take charge of the animals within 60 days from the date
of said notice.
(3) The person making such arrest shall have a lien upon the
animals for the expense of such care and provisions.
(4) Any peace officer who cares or provides for an animal pursuant
to this section and any person into whose care an animal is delivered by
a peace officer acting under this section shall be immune from civil or
criminal liability based upon an allegation that such care was
negligently provided. [Formerly 770.230; 1983 c.648 §2; 1985 c.662 §12;
2001 c.926 §16](1) It shall be the duty
of any peace officer to arrest and prosecute any violator of ORS 167.315
to 167.333 or 167.340 for any violation which comes to the knowledge or
notice of the officer.
(2) All fines and forfeitures collected for violations of ORS
167.315 to 167.333 or 167.340, except for forfeitures of the animal as
provided under ORS 167.350, shall be paid into the county treasury of the
county in which it is collected, and placed to the credit of the county
school fund. [Formerly 770.240; 1983 c.648 §3; 1985 c.662 §13; 2001 c.926
§17](1)
When a peace officer arrests a person pursuant to ORS 133.310 (3) or
pursuant to a warrant issued under ORS 33.075 by a court or judicial
officer for the arrest of a person charged with contempt for violating an
order issued under ORS 107.095 (1)(c) or (d), 107.716, 107.718, 124.015
or 124.020, if the person is arrested in a county other than that in
which the warrant or order was originally issued, the peace officer shall
take the person before a magistrate as provided in ORS 133.450. If it
becomes necessary to take the arrested person to the county in which the
warrant or order was originally issued, the costs of such transportation
shall be paid by that county.
(2) If a person arrested for the reasons described in subsection
(1) of this section is subsequently found subject to the imposition of
sanctions for contempt, the court, in addition to any other sanction it
may impose, may order the person to repay a county all costs of
transportation incurred by the county pursuant to subsection (1) of this
section. [1979 c.162 §2; 1981 c.780 §9; 1991 c.724 §24; 1995 c.666 §25]UNIFORM ACT ON FRESH PURSUITORS 133.410 to 133.440 may be cited as the
Uniform Act on Fresh Pursuit. As used in ORS
133.410 to 133.440:
(1) “Fresh pursuit” includes fresh pursuit as defined by the common
law; the pursuit of a person who has committed a felony or who reasonably
is suspected of having committed a felony; and the pursuit of a person
suspected of having committed a felony, though no felony actually has
been committed, if there is reasonable ground for believing that a felony
has been committed. It does not necessarily imply instant pursuit, but
pursuit without unreasonable delay.
(2) “State” includes the District of Columbia. (1)
Any member of a duly organized state, county or municipal peace unit of
another state of the United States who enters this state in fresh
pursuit, and continues within this state in such fresh pursuit, of a
person in order to arrest the person on the ground that the person is
believed to have committed a felony in the other state has the same
authority to arrest and hold such person in custody as has any member of
any duly organized state, county or municipal peace unit of this state to
arrest and hold in custody a person on the ground that the person is
believed to have committed a felony in this state.
(2) This section shall not be construed to make unlawful any arrest
in this state which otherwise would be lawful. If
an arrest is made in this state by an officer of another state in
accordance with ORS 133.430, the officer shall without unnecessary delay
take the person arrested before a magistrate of the county in which the
arrest was made, who shall conduct a hearing for the purpose of
determining the lawfulness of the arrest. If the magistrate determines
that the arrest was lawful, the magistrate shall commit the person
arrested to await for a reasonable time the issuance of an extradition
warrant by the Governor of this state. If the magistrate determines that
the arrest was unlawful, the magistrate shall discharge the person
arrested.PROCEDURES AFTER ARREST(1) If the defendant is arrested in the county in which the
warrant issued, the defendant shall be taken before the magistrate who
issued the warrant, or, if the magistrate is absent or unable to act,
before the nearest or most accessible magistrate in the same county; but
if the defendant is arrested in another county and the crime charged in
the warrant is a misdemeanor, the officer shall, upon being required by
the defendant, take the defendant before a magistrate of that county, who
shall make a release decision as provided in ORS 135.230 to 135.290. The
officer shall at the same time deliver to the magistrate the warrant with
the return of the officer indorsed and subscribed by the officer.
(2) After making the release decision, the magistrate shall certify
that fact on the warrant and return the warrant and release agreement or
security release to the officer having charge of the defendant. The
officer shall then discharge the defendant from arrest and without delay
deliver the warrant and release agreement or security release to the
clerk of the court in the other county at which the defendant is required
to appear.
(3) If the defendant is to be released and does not agree to the
release agreement, or a security deposit is not forthwith given, the
officer shall take the defendant before the magistrate who issued the
warrant or some other magistrate in that county, as provided in this
section, together with the warrant. [Formerly 133.520](1) Whenever any jailer, peace officer or health officer takes
or receives any money or other valuables from any person in custody for
safekeeping or for other purposes, the officer or jailer receiving such
valuables or money forthwith shall tender one of duplicate receipts for
the property being surrendered to the person in custody. If possible, the
person in custody shall countersign both the original and duplicate
receipts. If the person is unable to sign the receipts or receive the
duplicate thereof, the same shall be signed by and delivered to the
person when reasonably possible. A file of the original receipts shall be
kept for at least six months after the money or valuables have been
returned to the person in custody, the agent or representative of the
person or other person entitled to the same.
(2) A person violating any of the provisions of subsection (1) of
this section commits a Class B misdemeanor. [Formerly 142.210](1) Any boat, vehicle, aircraft or other
conveyance used by or with the knowledge of the owner or the person
operating or in charge thereof, other than stolen conveyances, in the
unlawful transportation of livestock, livestock carcasses, poultry or
other personal property, as provided in ORS 142.070, or in which any such
personal property unlawfully possessed is kept or concealed by or with
the knowledge of such owner or person operating or in charge thereof,
shall be forfeited to the state as provided in this section.
(2) If the person arrested under ORS 133.465 is not the owner of
the vehicle or conveyance seized, the sheriff shall make reasonable
effort to determine the name and address of the owner. If the sheriff is
able to determine the name and address of the owner, the sheriff shall
immediately notify the owner by registered or certified mail of the
seizure and of the owner’s rights and duties under this section and ORS
133.465.
(3) A person notified under subsection (2) of this section, or any
other person asserting a claim to rightful possession of the vehicle or
conveyance seized, except the defendant, may move the court having
ultimate trial jurisdiction over any crime charged in connection with the
seizure, to return the vehicle or conveyance to the movant.
(4) The movant shall serve a copy of the motion upon the district
attorney of the county in which the vehicle or conveyance is in custody.
The court shall order the vehicle or conveyance returned to the movant,
unless the court is satisfied by clear and convincing evidence that the
movant knowingly consented to the unlawful use that resulted in the
seizure. If the court does not order the return of the vehicle or
conveyance, the movant shall obtain the return only as provided in ORS
133.465.
(5) If the court orders the return of the vehicle or conveyance to
the movant, the movant shall not be liable for any towing or storage
costs incurred as a result of the seizure.
(6) If the court does not order the return of the vehicle or
conveyance under subsection (4) of this section, and the arrested person
is convicted for any offense in connection with the seizure, the vehicle
or conveyance shall be subject to forfeiture as provided in this section
and ORS 133.470 and 133.475. [Formerly 142.080](1) When any peace
officer discovers any person in the act of transporting any stolen live
meat food animal or fowl, any meat food animal or fowl carcass, or any
part thereof, or any wool, hides, grain or any other article which has
been stolen in or upon any vehicle, boat, aircraft or conveyance of any
kind, the officer shall seize all such articles or things found therein,
take possession of the vehicle or other conveyance and arrest any person
in charge thereof.
(2) The officer shall at once proceed against the person arrested,
under the provisions of the law which has been violated, in any court
having competent jurisdiction and shall deliver the vehicle or other
conveyance to the sheriff of the county in which such seizure has been
made.
(3) The vehicle or other conveyance shall be returned to the owner
if the owner is the person arrested, upon execution of a good and valid
bond, with sufficient sureties in a sum double the value of the property,
which bond shall be approved by the court and shall be conditioned upon
the return of said property to the custody of the sheriff at a time to be
specified by the court. [Formerly 142.090]
(1) The court, upon conviction of the person arrested pursuant to ORS
133.465, shall, unless the bona fide owner or a bona fide lienholder
registers an objection as provided in this section, subject to the
ownership rights of innocent third parties, order a sale of the property
at public auction by the sheriff of the county where it was seized.
(2) The sheriff, after deducting the expense of keeping the
property and the cost of sale, shall pay, according to their priorities,
all liens which are established by intervention or otherwise at such
hearing or in other proceedings brought for said purpose and shall pay
the balance of the proceeds into the general fund of the county.
(3) No claim of ownership or of any right, title or interest in the
vehicle or other conveyance shall be held invalid unless the state shows
to the satisfaction of the court, by clear and convincing evidence that
the claimant had knowledge that the vehicle or other conveyance was used
or to be used in violation of law.
(4) No such conveyance shall be sold under this section and unless
the state proves to the court, by clear convincing evidence that the
person asserting a claim of ownership or other right, title or interest
in the conveyance had knowledge that such conveyance was to be used to
convey stolen property, in which case the court shall order the vehicle
or other conveyance to be released. All liens against property sold under
this section or ORS 133.475 or 133.485 shall be transferred from the
property to the proceeds of the sale of the property. [Formerly 142.100] If no one claims the vehicle or other
conveyance, as provided in ORS 133.470, the taking of the same with
description thereof shall be advertised in some daily newspaper published
in the city or county where taken or, if there is no daily newspaper
published in such county or city, in a newspaper having weekly
circulation in the city or county once a week for two weeks and by notice
posted in three public places near the place of seizure. The legal owner,
in the case of a motor vehicle, if licensed by the State of Oregon, as
shown by the name and address of the legal owner in the records of the
Department of Transportation, shall be notified by mail. If no claimant
appears within 10 days after the last publication of the advertisement,
the property shall be sold and the proceeds, after deducting the expenses
and costs, shall be paid into the general fund of the county. [Formerly
142.110] If any of the
property seized, as provided in ORS 133.465, is perishable, or livestock
or fowls where the cost of keeping is great, the sheriff shall, upon
order of the court, sell the same in the manner in which property is sold
on execution. [Formerly 142.120] The
proceeds of the sale mentioned in ORS 133.485 and other property seized
shall be retained by liens, if not released on bond, to answer any order
that may be entered by the court upon the trial of the person arrested.
[Formerly 142.130] (1)
Upon the arrest of a disabled person and before interrogating or taking
the statement of the disabled person, the arresting peace officer, or
when the arrest is by a private person, the officer to whom the disabled
person is delivered, shall make available to the disabled person, at the
earliest possible time, a qualified interpreter to assist the disabled
person throughout the interrogation or taking of a statement.
(2) The public employer of the arresting peace officer or officer
to whom the disabled person is delivered shall pay the fees and expenses
of the qualified interpreter if:
(a) The disabled person, subsequent to the arrest, makes a verified
statement and provides other information in writing under oath showing
inability to obtain a qualified interpreter, and provides any other
information required by the court having jurisdiction over the offense
for which the disabled person was arrested concerning the inability to
obtain such an interpreter; and
(b) It appears to the court that the disabled person was without
means and was unable to obtain a qualified interpreter.
(3) As used in this section:
(a) “Disabled person” means a person who cannot readily understand
or communicate the English language, or cannot understand the proceedings
or a charge made against the person, or is incapable of presenting or
assisting in the presentation of a defense, because of deafness, or
because of a physical hearing impairment or physical speaking impairment.
(b) “Qualified interpreter” means a person who is readily able to
communicate with the disabled person, translate the proceedings, and
accurately repeat and translate the statements of the disabled person to
the officer or other person. [1973 c.386 §3; 1981 s.s. c.3 §139; 1989
c.224 §9]SEARCH AND SEIZURE(Generally) As used in ORS
133.525 to 133.703, unless the context requires otherwise:
(1) “Judge” means any judge of the circuit court, the Court of
Appeals, the Supreme Court, any justice of the peace or municipal judge
authorized to exercise the powers and perform the duties of a justice of
the peace.
(2) “Police officer” means a sheriff, municipal police officer,
member of the Oregon State Police, 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, or an investigator of the Criminal Justice
Division of the Department of Justice. [1973 c.836 §81; 1979 c.656 §2;
1991 c.67 §27; 1995 c.651 §7] The following
are subject to search and seizure under ORS 133.525 to 133.703:
(1) Evidence of or information concerning the commission of a
criminal offense;
(2) Contraband, the fruits of crime, or things otherwise criminally
possessed;
(3) Property that has been used, or is possessed for the purpose of
being used, to commit or conceal the commission of an offense; and
(4) A person for whose arrest there is probable cause or who is
unlawfully held in concealment. [1973 c.836 §82] (1) In
all cases of seizure, an agency that seizes property shall take
reasonable steps to safeguard and protect the things seized against loss,
damage and deterioration.
(2) Notwithstanding subsection (1) of this section, an agency that
seizes property is not liable for loss, damage or deterioration resulting
from any reasonable actions taken to secure or develop evidence. [1991
c.540 §2]Note: 133.537 was added to and made a part of 133.525 to 133.703 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(Search and Seizure Pursuant to Warrant) (1) A search
warrant may be issued only by a judge. A search warrant issued by a judge
of the Supreme Court or the Court of Appeals may be executed anywhere in
the state. Except as otherwise provided in subsection (2) of this
section, a search warrant issued by a judge of a circuit court may only
be executed within the judicial district in which the court is located. A
search warrant issued by a justice of the peace may only be executed
within the county in which the justice court is located. A search warrant
issued by a municipal judge authorized to exercise the powers and perform
the duties of a justice of the peace may only be executed in the
municipality in which the court is located.
(2) Notwithstanding subsection (1) of this section, a circuit court
judge may authorize execution of a search warrant outside of the judicial
district in which the court is located, if the judge finds from the
application that one or more of the objects of the search relate to an
offense committed or triable within the judicial district in which the
court is located. If the warrant authorizes the installation or tracking
of a mobile tracking device, the officer may track the device in any
county to which it is transported.
(3) Application for a search warrant may be made only by a district
attorney or by any police officer.
(4) The application shall consist of a proposed warrant in
conformance with ORS 133.565, and shall be supported by one or more
affidavits particularly setting forth the facts and circumstances tending
to show that the objects of the search are in the places, or in the
possession of the individuals, to be searched. If an affidavit is based
in whole or in part on hearsay, the affiant shall set forth facts bearing
on any unnamed informant’s reliability and shall disclose, as far as
possible, the means by which the information was obtained.
(5) Instead of the written affidavit described in subsection (4) of
this section, the judge may take an oral statement under oath. The oral
statement shall be recorded and transcribed. The transcribed statement
shall be considered to be an affidavit for the purposes of this section.
In such cases, the recording of the sworn oral statement and the
transcribed statement shall be certified by the judge receiving it and
shall be retained as a part of the record of proceedings for the issuance
of the warrant.
(6)(a) In addition to the procedure set out in subsection (5) of
this section, the proposed warrant and the affidavit may be sent to the
court by facsimile transmission or any similar electronic transmission
that delivers a complete printable image of the signed and acknowledged
affidavit and proposed warrant.
(b) When a court issues a warrant upon an application made under
paragraph (a) of this subsection:
(A) The court may transmit the signed warrant to the district
attorney or police officer by means of facsimile transmission or similar
electronic transmission, as described in paragraph (a) of this
subsection. The court shall file the original signed warrant and a
printed image of the district attorney’s or police officer’s application
with the return.
(B) The district attorney or police officer shall deliver the
original signed and acknowledged affidavit to the court with the return.
[1973 c.836 §83; 1985 c.344 §1; 1989 c.983 §3; 1995 c.658 §73; 1999 c.56
§1] (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 133.535 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, the judge shall issue a search warrant based on the finding of
the judge and in accordance with the requirements of ORS 133.545 to
133.615. If the judge does not so find, the judge shall deny the
application.
(3) The judge may orally authorize a police officer or a district
attorney 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 to 133.615, and it shall be returned to the judge as provided
in ORS 133.615. 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] (1) A search warrant shall be
dated and shall be addressed to and authorize its execution by an officer
authorized by law to execute search warrants.
(2) The warrant shall state, or describe with particularity:
(a) The identity of the judge issuing the warrant and the date the
warrant was issued;
(b) The name of the person to be searched, or the location and
designation of the premises or places to be searched;
(c) The things constituting the object of the search and authorized
to be seized; and
(d) The period of time, not to exceed five days, after execution of
the warrant except as provided in subsection (3) of this section, within
which the warrant is to be returned to the issuing authority.
(3) Except as otherwise provided herein, the search warrant shall
be executed between the hours of 7 a.m. and 10 p.m. and within five days
from the date of issuance. The judge issuing the warrant may, however, by
indorsement upon the face of the warrant, authorize its execution at any
time of the day or night and may further authorize its execution after
five days, but not more than 10 days from date of issuance. [1973 c.836
§85] (1) A search warrant may be executed
only within the period and at the times authorized by the warrant and
only by a police officer. A police officer charged with its execution may
be accompanied by such other persons as may be reasonably necessary for
the successful execution of the warrant with all practicable safety.
(2) The executing officer shall, before entering the premises, give
appropriate notice of the identity, authority and purpose of the officer
to the person to be searched, or to the person in apparent control of the
premises to be searched, as the case may be.
(3) Except as provided in ORS 133.619, before undertaking any
search or seizure pursuant to the warrant, the executing officer shall
read and give a copy of the warrant to the person to be searched, or to
the person in apparent control of the premises to be searched. If the
premises are unoccupied or there is no one in apparent control, the
officer shall leave a copy of the warrant suitably affixed to the
premises. [1973 c.836 §86; 1989 c.983 §4]Except as provided in ORS 133.619,
promptly upon completion of the search, the officer shall make a list of
the things seized, and shall deliver a receipt embodying the list to the
person from whose possession they are taken, or the person in apparent
control of the premises or vehicle from which they are taken. If the
vehicle or premises are unoccupied or there is no one present in apparent
control, the executing officer shall leave the receipt suitably affixed
to the vehicle or premises. [1973 c.836 §88; 1989 c.983 §5] (1) The executing
officer and other officers accompanying and assisting the officer may use
the degree of force, short of deadly physical force, against persons, or
to effect an entry, or to open containers, as is reasonably necessary for
the execution of the search warrant with all practicable safety.
(2) The use of deadly physical force in the execution of a search
warrant is justifiable only:
(a) If the officer reasonably believes that there is a substantial
risk that things to be seized will be used to cause death or serious
physical injury if their seizure is delayed and that the force used
creates no substantial risk of injury to persons other than those
obstructing the officer; or
(b) If the officer reasonably believes that the use of deadly
physical force is necessary to defend the officer or another person from
the use or threatened imminent use of deadly physical force. [1973 c.836
§89] (1) If a search warrant is not
executed within the time specified by the warrant, the officer shall
forthwith return the warrant to the issuing judge.
(2) An officer who has executed a search warrant shall, as soon as
is reasonably possible and in no event later than the date specified in
the warrant, return the warrant to the issuing judge together with a
signed list of things seized and setting forth the date and time of the
search.
(3) Subject to the provisions of subsection (4) of this section,
the issuing judge shall file the warrant and list returned to the judge,
with the record of the proceedings on the application for the warrant
made pursuant to ORS 133.555.
(4) If the issuing judge does not have jurisdiction to inquire into
the offense in respect to which the warrant was issued or the offense
apparently disclosed by the things seized, the judge shall transmit the
warrant and the record of proceedings for its issuance, together with the
documents submitted on the return, to the clerk of the appropriate court
having jurisdiction to inquire into such offense. [1973 c.836 §90]As used in ORS 133.545
and 133.619, unless the context requires otherwise, “mobile tracking
device” means an electronic or mechanical device which permits the
tracking of the movement of a person or object. [1989 c.983 §1]Note: 133.617 and 133.619 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 133 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
(1) A warrant authorizing the installation or tracking of a mobile
tracking device shall be executed as provided in this section.
(2) The officer need not inform any person of the existence or
content of the warrant prior to its execution.
(3) Except as provided in subsection (4) of this section, the
officer need not deliver or leave a receipt for things seized or
observations made under authority of the warrant.
(4) Within five days of the execution of the warrant, or, in the
case of an ongoing investigation, within such additional time as the
issuing judge may allow upon application, the officer shall mail a
receipt for things seized or observations made under authority of the
warrant to the following:
(a) If the mobile tracking device has been affixed to a vehicle, to
the registered owner; and
(b) To such other persons as the court may direct in the warrant.
(5) The receipt provided for in subsection (4) of this section
shall include the dates and times during which the officer monitored or
attempted to monitor the mobile tracking device.
(6) A warrant authorizing the installation or tracking of a mobile
tracking device shall only be issued based upon the submission of an
affidavit or oral statement as set forth in ORS 133.545, which affidavit
or statement demonstrates that probable cause exists to believe that an
individual is committing or is about to commit a particular felony of
murder, kidnapping, arson, robbery or other crime dangerous to life and
punishable as a felony, any crime punishable as a felony arising under
ORS 475.840 or 475.846 to 475.894, bribery, extortion, burglary or
unauthorized use of a motor vehicle punishable as a felony, or any
conspiracy to commit any of the crimes listed in this subsection. [1989
c.983 §2; 1991 c.625 §1; 1993 c.171 §1; 1999 c.56 §2; 2005 c.708 §44]Note: See note under 133.617.
A duly licensed physician, or a person acting under the direction or
control of a duly licensed physician, may withdraw bodily substances,
pierce human tissue, perform medical tests and procedures and otherwise
use medical procedures to gather evidence in a criminal investigation. A
duly licensed physician, or a person acting under the direction or
control of a duly licensed physician, shall not be held civilly liable
for gathering potential evidence in a criminal investigation in a
medically acceptable manner at the request of a peace officer. The civil
immunity granted in this section is not conditioned upon the existence of
probable cause, the existence of a search warrant or the existence of a
court order. Nothing in this section shall be interpreted as requiring a
duly licensed physician to act at the request of a peace officer. [1989
c.585 §2]Note: 133.621 was added to and made a part of ORS chapter 133 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(Disposition of Things Seized) (1) The
provisions of subsections (2), (3) and (4) of this section apply to all
cases of seizure, except for a seizure made under a search warrant.
(2) If an officer makes an arrest in connection with the seizure,
the officer shall, as soon thereafter as is reasonably possible, make a
written list of the things seized and furnish a copy of the list to the
defendant.
(3) If no claim to rightful possession has been established under
ORS 133.633 to 133.663, the things seized may be disposed of in
accordance with ORS 98.245 or the court may order that the things be
delivered to the officials having responsibility under the applicable
laws for selling, destroying or otherwise disposing of contraband,
forfeited or unclaimed goods in official custody. If the responsible
officials are state officials and the property is forfeited, the clear
proceeds shall be deposited with the State Treasury in the Common School
Fund.
(4) If things seized in connection with an arrest are not needed
for evidentiary purposes, and if a person having a rightful claim
establishes identity and right to possession beyond a reasonable doubt to
the satisfaction of the seizing officer, the officer may summarily return
the things seized to their rightful possessor. If the things seized are
perishable and it is not possible to return them to their rightful
possessor, the seizing officer may dispose of the items as justice and
the necessities of the case require. [1973 c.836 §109; 1987 c.858 §1;
1997 c.480 §3] (1)
Within 90 days after actual notice of any seizure, or at such later date
as the court in its discretion may allow:
(a) An individual from whose person, property or premises things
have been seized may move the appropriate court to return things seized
to the person or premises from which they were seized.
(b) Any other person asserting a claim to rightful possession of
the things seized may move the appropriate court to restore the things
seized to the movant.
(2) The appropriate court to consider such motion is:
(a) The court having ultimate trial jurisdiction over any crime
charged in connection with the seizure;
(b) If no crime is charged in connection with the seizure, the
court to which the warrant was returned; or
(c) If the seizure was not made under a warrant and no crime is
charged in connection with the seizure, any court having authority to
issue search warrants in the county in which the seizure was made.
(3) The movant shall serve a copy of the motion upon the district
attorney or the city attorney, whichever is appropriate, of the
jurisdiction in which the property is in custody.
(4) No filing, appearance or hearing fees may be charged for filing
or hearing a motion under this section. [1973 c.836 §110; 1999 c.37 §1;
2005 c.22 §102]A motion for the return or restoration of things seized shall be
based on the ground that the movant has a valid claim to rightful
possession thereof, because:
(1) The things had been stolen or otherwise converted, and the
movant is the owner or rightful possessor;
(2) The things seized were not in fact subject to seizure under ORS
131.550 to 131.600 or 133.525 to 133.703;
(3) The movant, by license or otherwise, is lawfully entitled to
possess things otherwise subject to seizure under ORS 133.525 to 133.703;
(4) Although the things seized were subject to seizure under ORS
133.525 to 133.703, the movant is or will be entitled to their return or
restoration upon the court’s determination that they are no longer needed
for evidentiary purposes; or
(5) The parties in the case have stipulated that the things seized
may be returned to the movant. [1973 c.836 §111; 2001 c.104 §44; 2001
c.666 §§22,23; 2005 c.830 §20]
(1) In granting a motion for return or restoration of things seized, the
court shall postpone execution of the order until such time as the things
in question need no longer remain available for evidentiary use.
(2) An order granting a motion for return or restoration of things
seized shall be reviewable on appeal in regular course. An order denying
such a motion or entered under ORS 133.663 shall be reviewable on appeal
upon certification by the court having custody of the things in question
that they are no longer needed for evidentiary purposes. [1973 c.836 §112] (1) If, upon consideration of a
motion for return or restoration of things seized, it appears to the
court that the things should be returned or restored, but there is a
substantial question whether they should be returned to the person from
whose possession they were seized or to some other person, or a
substantial question among several claimants to rightful possession, the
court may:
(a) Return the things to the person from whose possession they were
seized; or
(b)(A) Impound the things seized and set a further hearing,
ensuring that all persons with a possible possessory interest in the
things in question receive due notice and an opportunity to be heard; and
(B) Upon completion of the hearing provided for in subparagraph (A)
of this paragraph, enter an order for the return or restoration of the
things seized.
(2) If there is no substantial question whether the things should
be returned to the person from whose possession they were seized, they
must be returned to the person upon the release of the defendant from
custody.
(3) Instead of conducting the hearing provided for in subsection
(1)(b)(A) of this section and returning or restoring the property, the
court, in its discretion, may leave the several claimants to appropriate
civil process for the determination of the claims. [1973 c.836 §113; 2005
c.22 §103](Evidentiary Exclusion) (1) Objections to use in
evidence of things seized in violation of any of the provisions of ORS
133.525 to 133.703 shall be made by a motion to suppress which shall be
heard and determined by any department of the trial court in advance of
trial.
(2) A motion to suppress which has been denied may be renewed, in
the discretion of the court, on the ground of newly discovered evidence,
or as the interests of justice require. [1973 c.836 §114; 1975 c.197 §1] (1) Subject to the
provisions of subsection (2) of this section, in any proceeding on a
motion to suppress evidence the moving party shall be entitled to
contest, by cross-examination or offering evidence, the good faith,
accuracy and truthfulness of the affiant with respect to the evidence
presented to establish probable cause for search or seizure.
(2) If the evidence sought to be suppressed was seized by authority
of a search warrant, the moving party shall be allowed to contest the
good faith, accuracy and truthfulness of the affiant as to the evidence
presented before the issuing authority only upon supplementary motion,
supported by affidavit, setting forth substantial basis for questioning
such good faith, accuracy and truthfulness.
(3) In any proceeding under subsection (2) of this section, the
moving party shall have the burden of proving by a preponderance of the
evidence that the evidence presented before the issuing authority was not
offered in good faith, was not accurate and was not truthful.
(4) Where the motion to suppress challenges evidence seized as the
result of a warrantless search, the burden of proving by a preponderance
of the evidence the validity of the search is on the prosecution.
(5) The court shall determine whether, under applicable law, any
inaccuracy, untruthfulness or lack of good faith requires suppression.
[1973 c.836 §118] (1) In any proceeding on a motion
to suppress evidence wherein, pursuant to ORS 133.693, the good faith of
the testimony presented to establish probable cause is contested, and
wherein such testimony includes a report of information furnished by an
informant whose identity is not disclosed in the testimony, the moving
party shall be entitled to prevail on the motion to suppress and evidence
obtained as a result of the information furnished by the informant shall
be suppressed unless:
(a) The evidence sought to be suppressed was seized by authority of
a search warrant and the informant testified in person before the issuing
authority; or
(b) The judge determines from the affiant by a preponderance of the
evidence that such confidential informant exists and is reliable.
(2) If the defendant is entitled to prevail on the motion to
suppress under subsection (1) of this section, the evidence obtained as a
result of the information furnished by the informant shall be suppressed.
[1973 c.836 §119]INTERCEPTION OF COMMUNICATIONS As used
in ORS 41.910 and 133.721 to 133.739, unless the context requires
otherwise:
(1) “Aggrieved person” means a person who was a party to any wire,
electronic or oral communication intercepted under ORS 133.724 or 133.726
or a person against whom the interception was directed and who alleges
that the interception was unlawful.
(2) “Contents,” when used with respect to any wire, electronic or
oral communication, includes any information concerning the identity of
the parties to such communication or the existence, substance, purport or
meaning of that communication.
(3) “Electronic communication” means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any nature
transmitted in whole or in part by a radio, electromagnetic,
photoelectronic or photo-optical system, or transmitted in part by wire,
but does not include:
(a) Any oral communication or any communication that is completely
by wire; or
(b) Any communication made through a tone-only paging device.
(4) “Electronic, mechanical or other device” means any device or
apparatus that can be used to intercept a wire, electronic or oral
communication other than:
(a) Any telephone or telegraph instrument, equipment or facility,
or any component thereof that is furnished to the subscriber or user by a
telecommunications carrier in the ordinary course of its business and
that is being used by the subscriber or user in the ordinary course of
its business or being used by a telecommunications carrier in the
ordinary course of its business, or by an investigative or law
enforcement officer in the ordinary course of official duties; or
(b) A hearing aid or similar device being used to correct subnormal
hearing to not better than normal.
(5) “Intercept” means the acquisition, by listening or recording,
of the contents of any wire, electronic or oral communication through the
use of any electronic, mechanical or other device.
(6) “Investigative or law enforcement officer” means an officer or
other person employed by a county sheriff or municipal police department,
the Oregon State Police, Attorney General, a district attorney or the
Department of Corrections, and officers or other persons employed by law
enforcement agencies of other states or the federal government, to
investigate or enforce the law.
(7) “Oral communication” means:
(a) Any oral communication, other than a wire or electronic
communication, uttered by a person exhibiting an expectation that such
communication is not subject to interception under circumstances
justifying such expectation; or
(b) An utterance by a person who is participating in a wire or
electronic communication, if the utterance is audible to another person
who, at the time the wire or electronic communication occurs, is in the
immediate presence of the person participating in the communication.
(8) “Telecommunications carrier” means:
(a) A telecommunications utility as defined in ORS 759.005; or
(b) A cooperative corporation organized under ORS chapter 62 that
provides telecommunications services.
(9) “Telecommunications service” has the meaning given that term in
ORS 759.005.
(10) “Wire communication” means any communication made in whole or
in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection between
the point of origin and the point of reception, whether furnished or
operated by a public utility or privately owned or leased. [1979 c.716
§2; 1983 c.824 §6; 1987 c.320 §18; 1987 c.447 §103; 1989 c.983 §6; 1999
c.1093 §1; 2001 c.385 §1; 2003 c.14 §53; 2005 c.22 §104] The application for any order under
ORS 133.724 and any supporting documents and testimony in connection
therewith shall remain confidential in the custody of the court, and
these materials shall not be released or information concerning them in
any manner disclosed except upon written order of the court and as
required under ORS 135.805 to 135.873. No person having custody of any
records maintained under ORS 133.721 to 133.739 shall disclose or release
any materials or information contained therein except upon written order
of the court and as required under ORS 135.805 to 135.873. [Formerly
141.740; 1979 c.716 §13](1) An ex
parte order for the interception of wire, electronic or oral
communications may be issued by any circuit court judge upon written
application made upon oath or affirmation of the individual who is the
district attorney or a deputy district attorney authorized by the
district attorney for the county in which the order is sought. The
application shall include:
(a) The name of the district attorney or the deputy district
attorney making the application and the authority of the district
attorney or the deputy district attorney to make the application;
(b) The identity of the investigative or law enforcement officer
making the application and the officer authorizing the application;
(c) A statement demonstrating that there is probable cause to
believe that an individual is committing, has committed or is about to
commit, a particular felony of murder, kidnapping, arson, robbery,
bribery, extortion or other crime dangerous to life and punishable as a
felony, or a crime punishable as a felony under ORS 475.840, 475.846 to
475.894 or 475.906 or as a misdemeanor under ORS 167.007, or any
conspiracy to commit any of the foregoing crimes;
(d) A statement of the details, if known, of the particular crime
alleged under paragraph (c) of this subsection;
(e) A particular description of the nature and location of the
facilities from which or the place where the wire, electronic or oral
communication is to be intercepted, if known;
(f) A particular description of the type of wire, electronic or
oral communication sought to be intercepted;
(g) The identity of the person, if known, suspected of committing
the crime and whose wire, electronic or oral communications are to be
intercepted;
(h) A full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or are likely to be
too dangerous;
(i) A statement of the period of time for which the interception is
required to be maintained. If the nature of the investigation is such
that the authorization for interception should not automatically
terminate when the described type of wire, electronic or oral
communication has been first obtained, a description of facts
establishing probable cause to believe that additional communications of
the same type will occur thereafter;
(j) A statement as to whether any prior application has been made
to intercept wire, electronic or oral communications from the same person
and, if such prior application exists, a statement of the current status
of that application; and
(k) Where the application is for the extension of an existing
order, a statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to obtain such
results.
(2) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(3) Upon examination of such application and evidence the judge may
enter an ex parte order, as requested or as modified, authorizing or
approving interception of wire, electronic or oral communications within
the state if the judge determines on the basis of the facts submitted by
the applicant that:
(a) There is probable cause for belief that an individual is
committing, has committed or is about to commit a particular crime
described in subsection (1)(c) of this section;
(b) There is probable cause for belief that particular
communications concerning that crime will be obtained through such
interception;
(c) Normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried or are likely to
be too dangerous; and
(d) There is probable cause for belief that the facilities from
which, or the place where, the wire, electronic or oral communications to
be intercepted are being used, or are about to be used, in connection
with the commission of that crime are leased to, listed in the name of,
or commonly used by the individual suspected.
(4) Each order authorizing or approving the interception of any
wire, electronic or oral communication shall specify:
(a) The identity of the person, if known, whose communications are
to be intercepted;
(b) The nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted;
(c) A particular description of the type of communication sought to
be intercepted, and a statement of the particular crime to which it
relates;
(d) The identity of the agency authorized to intercept the
communications and of the person authorizing the application;
(e) The period of time during which such interception is
authorized, including a statement as to whether or not the interception
shall automatically terminate when the described communication has been
first obtained; and
(f) The name of the applicant, date of issuance, and the signature
and title of the issuing judge.
(5) No order entered pursuant to this section shall authorize or
approve the interception of any wire, electronic or oral communication
for any period longer than is necessary to achieve the objective of
authorization, nor in any event longer than 30 days. Extensions of any
order may be granted, but only when application for an extension is made
in accordance with subsection (1)(k) of this section and the court makes
the findings required by subsection (3) of this section. The period of
extension shall be no longer than the authorizing judge deems necessary
to achieve the purpose for which it is granted and in no event for longer
than 30 days. Every order and extension thereof shall contain a provision
that the authorization to intercept shall be executed as soon as
practicable, shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception, and
must terminate upon attainment of the authorized objective, or in any
event in 30 days.
(6) Whenever an order authorizing interception is entered pursuant
to this section, the order may require reports to be made to the judge
who issued the order showing what progress has been made toward
achievement of the authorized objective and the need for continued
interception. Such reports shall be made at such intervals as the judge
may require. [1979 c.716 §4 (enacted in lieu of 133.725); 1989 c.639 §1;
1989 c.983 §7a; 1995 c.224 §1; 2001 c.385 §6; 2005 c.708 §45](1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement officer is
authorized to intercept an oral communication to which the officer or
someone under the direct supervision of the officer is a party, without
obtaining an order for the interception of a wire, electronic or oral
communication under ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made in the
person’s immediate presence and is audible to the person regardless of
whether the communication is specifically directed to the person.
(3) An ex parte order for intercepting an oral communication in any
county of this state under this section may be issued by any judge as
defined in ORS 133.525 upon written application made upon oath or
affirmation of the district attorney or a deputy district attorney
authorized by the district attorney for the county in which the order is
sought or upon the oath or affirmation of any peace officer as defined in
ORS 133.005. The application shall include:
(a) The name of the applicant and the applicant’s authority to make
the application;
(b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be intercepted is
engaged in committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007, and that intercepting the
oral communication will yield evidence thereof; and
(c) The identity of the person, if known, suspected of committing
the crime and whose oral communication is to be intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge may
enter an ex parte order, as requested or as modified, authorizing or
approving the interception of an oral communication within the state if
the judge determines on the basis of the facts submitted by the applicant
that:
(a) There is probable cause to believe that a person is engaged in
committing, has committed or is about to commit a particular felony, or a
misdemeanor under ORS 167.007; and
(b) There is probable cause to believe that the oral communication
to be obtained will contain evidence concerning that crime.
(6) An order authorizing or approving the interception of an oral
communication under this section must specify:
(a) The identity of the person, if known, whose oral communication
is to be intercepted;
(b) A statement identifying the particular crime to which the oral
communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception of
an oral communication to which a law enforcement officer or someone under
the direct supervision of a law enforcement officer is a party.
(7) An order under ORS 133.724 or this section is not required when
a law enforcement officer intercepts an oral communication to which the
officer or someone under the direct supervision of the officer is a party
if the oral communication is made by a person whom the officer has
probable cause to believe has committed, is engaged in committing or is
about to commit:
(a) A crime punishable as a felony under ORS 475.840, 475.846 to
475.894 or 475.906 or as a misdemeanor under ORS 167.007; or
(b) Any other crime punishable as a felony if the circumstances at
the time the oral communication is intercepted are of such exigency that
it would be unreasonable to obtain a court order under ORS 133.724 or
this section.
(8) A law enforcement officer who intercepts an oral communication
pursuant to this section may not intentionally fail to record and
preserve the oral communication in its entirety. A law enforcement
officer, or a person under the direct supervision of the officer, who is
authorized under this section to intercept an oral communication is not
required to exclude from the interception an oral communication made by a
person for whom probable cause does not exist if the officer or person
under the officer’s direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of an
oral communication intercepted under this section before a preliminary
hearing or trial in which an oral communication is going to be introduced
as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the criminal
laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral communication
under this section only when acting within the scope of the officer’s
employment and as a part of assigned duties.
(11) As used in this section, “law enforcement officer” means an
officer employed by the United States, this state or a municipal
government within this state, or a political subdivision, agency,
department or bureau of those governments, to enforce criminal laws.
(12) Violation of subsection (9) of this section is a Class A
misdemeanor. [1983 c.824 §8; 1995 c.224 §2; 2001 c.385 §2; 2003 c.577
§13; 2005 c.708 §46] Any officer who
knowingly proceeds under an order which has expired and has not been
renewed as provided in ORS 133.724 is deemed to act without authority
under ORS 133.724 and shall be subject to the penalties provided in ORS
165.543, as though the officer had never obtained any such order or
warrant. [Formerly 141.730; 1979 c.716 §14; 1983 c.824 §7]The contents of any wire, electronic or oral
communication intercepted in accordance with the provisions of ORS
133.724 shall, if possible, be recorded on tape or wire or other
comparable device. The recording of the contents of any wire, electronic
or oral communication under this section shall be done in such way as
will protect the recording from editing or other alterations. Immediately
upon the expiration of the period of the order issued under ORS 133.724,
or extensions thereof, such recordings shall be made available to the
judge issuing such order and sealed under the direction of the judge.
Custody of the recordings shall be wherever the judge orders. They shall
not be destroyed before the expiration of the minimum retention period
established by the State Court Administrator under ORS 8.125. Duplicate
recordings may be made for use or disclosure pursuant to the provisions
of ORS 133.737 (1) and (2) for investigations. The presence of the seal
provided for by this section, or a satisfactory explanation for the
absence thereof, shall be a prerequisite for the use or disclosure of the
contents of any wire, electronic or oral communication or evidence
derived therefrom under ORS 133.737 (3). [1979 c.716 §7; 1989 c.983 §8;
1997 c.872 §12](1) Within a reasonable time but not later than 90 days
after the termination of the period of an order issued under ORS 133.724,
or extensions thereof, the issuing or denying judge shall cause to be
served, on the persons named in the order or the application, and such
other parties to intercepted communications as the judge may determine in
the judge’s discretion should be served in the interest of justice, an
inventory which shall include notice of:
(a) The fact of the entry of the order or the application;
(b) The date of the entry and the period of authorized, approved or
disapproved interception, or the denial of the application; and
(c) The fact that during the period wire, electronic or oral
communications were or were not intercepted.
(2) The judge, upon the filing of a motion, may in the judge’s
discretion make available to such person or the person’s counsel for
inspection such portions of the intercepted communications, applications
and orders as the judge determines to be in the interest of justice. On
an ex parte showing of good cause to a judge of the circuit court, the
serving of the inventory required by this section may be postponed. [1979
c.716 §8; 1989 c.983 §9] The contents of any
wire, electronic or oral communication intercepted under ORS 133.724, or
evidence derived therefrom, shall not be received in evidence or
otherwise disclosed in any trial, hearing or other proceeding in any
court of this state unless each party, not less than 10 days before the
trial, hearing or proceeding, has been furnished with a copy of the court
order, and accompanying application, under which the interception was
authorized or approved. This 10-day period may be waived by the judge if
the judge finds that it was not possible to furnish the party with the
above information 10 days before the trial, hearing or proceeding and
that the party will not be prejudiced by the delay in receiving such
information. [1979 c.716 §9; 1989 c.983 §10](1) Any aggrieved person in any trial, hearing or
proceeding in or before any court, department, officer, agency,
regulatory body or other authority of the state, or a political
subdivision thereof, may move to suppress the contents of any wire,
electronic or oral communication intercepted under ORS 133.724, or
evidence derived therefrom, on the grounds that:
(a) The communication was unlawfully intercepted;
(b) The order of authorization or approval under which it was
intercepted is insufficient on its face; or
(c) The interception was not made in conformity with the order of
authorization or approval.
(2) Such motion shall be made before the trial, hearing or
proceeding unless there was no opportunity to make such motion or the
person was not aware of the grounds of the motion. If the motion is
granted, the contents of the intercepted wire, electronic or oral
communication, or evidence derived therefrom, shall be treated as having
been unlawfully obtained. The judge, upon the filing of such motion by
the aggrieved person, may in the judge’s discretion make available to the
aggrieved person or the person’s counsel for inspection such portions of
the intercepted communications or evidence derived therefrom as the judge
determines to be in the interests of justice.
(3) In addition to any other right to appeal, the state shall have
the right to appeal from an order granting a motion to suppress under
subsection (1) of this section. [1979 c.716 §10; 1989 c.983 §11](1) Any aggrieved person in any trial, hearing or
proceeding in or before any court, department, officer, agency,
regulatory body or other authority of the state, or a political
subdivision thereof, may move to suppress recordings of any oral
communication intercepted in violation of ORS 133.726 or testimony or
other evidence derived solely from the unlawful interception.
(2) Such motion shall be made before the trial, hearing or
proceeding unless there was no opportunity to make such motion or the
person was not aware of the grounds of the motion. If the motion is
granted, the judge, upon the filing of such motion by the aggrieved
person, may in the judge’s discretion make available to the aggrieved
person or the person’s counsel for inspection such portions of the
intercepted communications or evidence derived therefrom as the judge
determines to be in the interests of justice.
(3) In addition to any other right to appeal, the state shall have
the right to appeal from an order granting a motion to suppress under
subsection (1) of this section. [1983 c.824 §5; 2001 c.385 §3; 2003 c.14
§55] (1) Any
investigative or law enforcement officer who, by any means authorized by
ORS 133.721 to 133.739, has obtained knowledge of the contents of any
wire, electronic or oral communication under ORS 133.724, or evidence
derived therefrom, may disclose such contents to another investigative or
law enforcement officer to the extent that such disclosure is appropriate
to the proper performance of the official duties of the officer making or
receiving the disclosure or to the extent that such disclosure is
otherwise authorized by law.
(2) Any investigative or law enforcement officer who, by any means
authorized by ORS 133.721 to 133.739, has obtained knowledge of the
contents of any wire, electronic or oral communication under ORS 133.724,
or evidence derived therefrom, may use such contents to the extent such
use is appropriate to the proper performance of official duties.
(3) Any person who has received by any means authorized by ORS
133.721 to 133.739, any information concerning a wire, electronic or oral
communication under ORS 133.724, or evidence derived therefrom,
intercepted in accordance with the provisions of ORS 133.721 to 133.739,
may disclose the contents of that communication or such derivative
evidence while giving testimony under oath or affirmation in any
proceeding held under the authority of the state or political subdivision
thereof.
(4) No otherwise privileged communication intercepted in accordance
with, or in violation of, the provisions of ORS 133.721 to 133.739, shall
lose its privileged character.
(5) When an investigative or law enforcement officer, while engaged
in intercepting wire, electronic or oral communications in any manner
authorized by ORS 133.724, intercepts wire, electronic or oral
communications relating to crimes other than those specified in the order
of authorization or approval, the contents thereof, and evidence derived
therefrom, may be disclosed or used as provided in subsections (1) and
(2) of this section. Such contents and any evidence derived therefrom may
be used under subsection (3) of this section when authorized or approved
by a judge of the circuit court if the judge finds on subsequent
application that the contents were otherwise intercepted in accordance
with the provisions of ORS 133.724. Such application shall be made as
soon as practicable. [1979 c.716 §6; 1989 c.983 §12; 2003 c.14 §56](1)
Any person whose wire, electronic or oral communication was intercepted,
disclosed or used in violation of ORS 133.724 or 133.737 shall have a
civil cause of action against any person who willfully intercepts,
discloses or uses, or procures any other person to intercept, disclose or
use such communication and shall be entitled to recover from any such
person:
(a) Actual damages but not less than damages computed at the rate
of $100 a day for each day of violation or $1,000, whichever is greater;
and
(b) Punitive damages.
(2) A good faith reliance on a court order or legislative
authorization shall constitute a complete defense to any civil action
brought under this section.
(3) Nothing in ORS 41.910, 133.721 to 133.739 and 133.992 is
intended to abrogate any other private civil remedy for invasion of
privacy.
(4) Except as provided in subsection (5) of this section, the court
may award reasonable attorney fees to the prevailing party in an action
under this section.
(5) The court may not award attorney fees to a prevailing defendant
under the provisions of subsection (4) of this section if the action
under this section is maintained as a class action pursuant to ORCP 32.
[1979 c.716 §11; 1981 c.897 §38; 1989 c.983 §13; 1995 c.696 §16]UNIFORM CRIMINAL EXTRADITION ACT(1) Where appearing in ORS 133.743 to
133.857, the term “Governor” includes any person performing the
extradition functions of Governor by authority of an appointment under
subsection (2) of this section. The term “executive authority” includes
the Governor and any person performing the functions of Governor in a
state other than this state, and the term “state,” referring to a state
other than this state, includes any other state or territory, organized
or unorganized, of the United States of America.
(2) The Governor may appoint a member of the legal staff of the
Governor to act in behalf of the Governor under ORS 133.743 to 133.857 in
performing the extradition functions of the Governor. The appointment
shall be in writing and be filed with the Secretary of State. [Formerly
147.010; 1983 c.82 §1]Subject to final determination by the Governor, the
Superintendent of State Police shall determine the security requirements
necessary to safely carry out the extradition of a person from another
state including, but not limited to, the number of agents needed to
secure the return of a person under ORS 133.743 to 133.857. [1999 c.867
§12]Note: 133.745 was added to and made a part of 133.743 to 133.857 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.Subject to the qualifications of ORS 133.743 to
133.857 and the provisions of the Constitution of the United States
controlling, and Acts of Congress in pursuance thereof, it is the duty of
the Governor of this state to have arrested and delivered up to the
executive authority of any other state of the United States any person
charged in that state with treason, felony, or other crime, who has fled
from justice and is found in this state. [Formerly 147.020] No demand for the extradition of a person
charged with crime in another state shall be recognized by the Governor
unless in writing and accompanied by a copy of an indictment found or by
an information supported by affidavit in the state having jurisdiction of
the crime, or by a copy of an affidavit made before a magistrate there,
together with a copy of any warrant which was issued thereupon; or by a
copy of a judgment of conviction or of a sentence imposed in execution
thereof, together with a statement by the executive authority of the
demanding state that the person claimed has escaped from confinement or
has broken the terms of security release, probation or parole. The
indictment, information, or affidavit made before the magistrate must
substantially charge the person demanded with having committed a crime
under the law of that state; and the copy of indictment, information,
affidavit, judgment of conviction or sentence must be authenticated by
the executive authority making the demand. [Formerly 147.030; 1999 c.1051
§246] When a demand shall be
made upon the Governor of this state by the executive authority of
another state for the surrender of a person so charged with crime, the
Governor may call upon the Attorney General or any prosecuting officer in
this state to investigate or assist in investigating the demand, and to
report to the Governor the situation and circumstances of the person so
demanded, and whether the person ought to be surrendered. [Formerly
147.040] A warrant of extradition must
not be issued unless the documents presented by the executive authority
making the demand show that:
(1) Except in cases arising under ORS 133.767, the accused, when
demanded upon a charge of crime, was present in the demanding state at
the time of the commission of the alleged crime and thereafter fled from
that state;
(2) The person demanded is in this state; and
(3) They constitute full compliance with the requirements of ORS
133.753. [Formerly 147.050]The Governor of this state may also
surrender, on demand of the executive authority of any other state, any
person in this state charged in such other state in the manner provided
in ORS 133.763 with committing an act in this state, or in a third state,
intentionally resulting in a crime in the state whose executive authority
is making the demand. The provisions of ORS 133.743 to 133.857 not
otherwise inconsistent shall apply to such cases, notwithstanding that
the accused was not in that state at the time of the commission of the
crime and has not fled therefrom. [Formerly 147.060; 1985 c.565 §12; 2005
c.22 §105] If the Governor shall decide
that the demand should be complied with, the Governor shall sign a
warrant of arrest, which shall be sealed with the state seal, and be
directed to a sheriff, marshal, coroner or other person whom the Governor
may think fit to entrust with the execution thereof. The warrant must
substantially recite the facts necessary to the validity of its issue.
[Formerly 147.070] Such warrant shall authorize the
officer or other person to whom directed to arrest the accused at any
place where the accused may be found within the state and to command the
aid of all sheriffs and other peace officers in the execution of the
warrant, and to deliver the accused, subject to the provisions of ORS
133.743 to 133.833 and 133.839 to 133.855, to the duly authorized agent
of the demanding state. [Formerly 147.080] Every
such officer or other person empowered to make the arrest shall have the
same authority in arresting the accused to command assistance therein as
sheriffs and other officers have by law in the execution of any criminal
process directed to them, with the like penalties against those who
refuse their assistance. [Formerly 147.090] No person arrested upon such
warrant shall be delivered over to the agent whom the executive authority
demanding the person shall have appointed to receive the person unless
the person has been informed of the demand made for surrender and of the
crime with which the person is charged, and that the person has the right
to demand legal counsel; and if the prisoner, the friends, or counsel of
the prisoner shall state the desire to test the legality of the arrest,
the prisoner shall be taken forthwith before a judge of a court of record
in this state, who shall fix a reasonable time to be allowed the prisoner
within which to apply for a writ of habeas corpus. And when such writ is
applied for, notice thereof, and of the time and place of hearing
thereon, shall be given to the public prosecuting officer of the county
in which the arrest is made and in which the accused is in custody, and
to the said agent of the demanding state. [Formerly 147.100] Any officer who
shall deliver to the agent for extradition of the demanding state a
person in the custody of the officer under the Governor’s warrant in
disobedience to ORS 133.787 commits a Class B misdemeanor. [Formerly
147.110] (1) The officer or person
executing the Governor’s warrant of arrest, or the agent of the demanding
state to whom the prisoner may have been delivered, may, when necessary,
confine the prisoner in the jail of any county or city through which the
officer, person or agent may pass; and the keeper of such jail must
receive and safely keep the prisoner until the person having charge of
the prisoner is ready to proceed on the route, such person being
chargeable with the expense of keeping.
(2) The officer or agent of a demanding state to whom a prisoner
may have been delivered following extradition proceedings in another
state, or to whom a prisoner may have been delivered after waiving
extradition in such other state, and who is passing through this state
with such a prisoner for the purpose of immediately returning such
prisoner to the demanding state may, when necessary, confine the prisoner
in the jail of any county or city through which the officer or agent may
pass; and the keeper of such jail must receive and safely keep the
prisoner until the officer or agent having charge of the prisoner is
ready to proceed on the route, such officer or agent, however, being
chargeable with the expense of keeping; provided, however, that such
officer or agent shall produce and show to the keeper of such jail
satisfactory written evidence of the fact that the officer or agent is
actually transporting such prisoner to the demanding state after a
requisition by the executive authority of such demanding state. Such
prisoner shall not be entitled to demand a new requisition while in this
state. [Formerly 147.120] Whenever any person within
this state shall be charged on the oath of any credible person before any
judge or other magistrate of this state with the commission of a crime in
any other state and, except in cases arising under ORS 133.767, with
having fled from justice, or with having been convicted of a crime in
that state and having escaped from confinement, or having broken the
terms of security release, probation or parole, or whenever complaint
shall have been made before any judge or other magistrate in this state
setting forth on the affidavit of any creditable person in another state
that a crime has been committed in such other state and that the accused
has been charged in such state with the commission of the crime, and,
except in cases arising under ORS 133.767, has fled therefrom or has been
convicted of a crime in that state and escaped from confinement, or has
broken the terms of security release, probation or parole, and is
believed to be in this state, the judge or magistrate shall issue a
warrant directed to any peace officer commanding the peace officer to
apprehend the person named therein, wherever the person may be found in
this state, and bring the person before the same or any other judge,
court or magistrate who may be convenient of access to the place where
the arrest may be made, to answer the charge or complaint and affidavit,
and a certified copy of the sworn charge or complaint and affidavit upon
which the warrant is issued shall be attached to the warrant. [Formerly
147.130; 1999 c.1051 §247] The arrest of a person may be
lawfully made also by an officer or a private citizen without a warrant,
upon reasonable information that the accused stands charged in the courts
of another state with a crime punishable by death or imprisonment for a
term exceeding one year, but when so arrested the accused must be taken
before a judge or magistrate with all practicable speed and complaint
must be made against the accused under oath setting forth the ground for
the arrest as in ORS 133.803; and thereafter the answer of the accused
shall be heard as if the accused had been arrested on a warrant.
[Formerly 147.140] If from the
initial examination before the judge or magistrate it appears that the
person held is the person charged with having committed the crime
alleged, the judge or magistrate must commit the person to jail by a
warrant reciting the accusation for a period of at least 45 days to
enable the arrest of the accused to be made under a warrant of the
Governor on a requisition of the executive authority of the state having
jurisdiction of the defense, unless the accused is released as provided
in ORS 133.809, or until the accused shall be legally discharged. The
period of time may be extended upon good cause shown demonstrating the
need for additional time to allow the executive authority of the state
having jurisdiction of the defense to comply with procedural requirements
of the Uniform Criminal Extradition Act, 18 U.S.C. 3182, or section 2,
Article IV of the United States Constitution. [Formerly 147.150; 1999
c.553 §1] Unless the offense with which the prisoner is
charged is shown to be an offense punishable by death or life
imprisonment under the laws of the state in which it was committed, the
judge or magistrate must make a release decision concerning the person
arrested under ORS 135.230 to 135.290, for the appearance of the person
at a time specified in the security release or in the release agreement.
[Formerly 147.160]If the accused is not arrested under warrant of
the Governor by the expiration of the time specified in the warrant,
security release or release agreement, the judge or magistrate may
discharge the accused or may recommit the accused to a further day, or
may again set a security release or a release agreement for the
appearance and surrender of the accused, as provided in ORS 133.809; and
at the expiration of the second period of commitment, or if the accused
has been released and appeared according to the terms of the security
release or release agreement of the accused, the judge or magistrate
either may discharge the accused or may require the accused to enter into
a new security release or release agreement to appear and surrender at
another day. [Formerly 147.170] If the prisoner is released
and fails to appear according to the condition of the security release or
release agreement of the prisoner, the court, by proper order, shall
declare the security release or release agreement forfeited, and recovery
may be had thereon in the name of the state as in the case of other
security releases and release agreements given by the accused in criminal
proceedings within this state. [Formerly 147.180]If a criminal prosecution has been instituted against such
person under the laws of this state and is still pending, the Governor,
at the discretion of the Governor, either may surrender the person on the
demand of the executive authority of another state or may hold the person
until the person has been tried and discharged, or convicted and punished
in this state. [Formerly 147.190] The guilt or
innocence of the accused as to the crime of which the accused is charged
may not be inquired into by the Governor or in any proceeding after the
demand for extradition, accompanied by a charge of crime in legal form as
provided in ORS 133.743 to 133.817, shall have been presented to the
Governor, except as it may be involved in identifying the person held as
the person charged with the crime. [Formerly 147.200] The Governor may recall the
Governor’s warrant of arrest or may issue another warrant whenever the
Governor deems proper. [Formerly 147.210]
Whenever the Governor of this state shall demand a person charged with
crime or with escaping from confinement or breaking the terms of security
release, probation or parole in this state from the chief executive of
any other state, or from the Chief Justice or an Associate Justice of the
Supreme Court of the District of Columbia authorized to receive such
demand under the laws of the United States, the Governor shall issue a
warrant under the seal of this state to some agent or agents, commanding
the agent to receive the person so charged if delivered to the agent and
convey the person to the proper officer of the county in this state in
which the offense was committed. [Formerly 147.220; 1999 c.1051 §248](1) When the return to this state of a person charged with crime
in this state is required, the district attorney of the county in which
the alleged crime is committed shall present to the Governor written
application for a requisition for the return of the person charged, in
which application shall be stated the name of the person so charged, the
crime charged against the person, the approximate time, place and
circumstances of its commission, the state in which the person is
believed to be, including the location of the accused therein at the time
the application is made, and certifying that in the opinion of the
district attorney the interest of the public in the effective
administration of criminal justice requires the arrest and return of the
accused to this state for trial, and that the proceeding is not
instituted to enforce a private claim.
(2) When the return to this state is required of a person who has
been convicted of or found guilty except for insanity of a crime in this
state and who has escaped from confinement or broken the terms of the
release, probation or parole of such person, the district attorney of the
county in which the offense was committed, the parole board, or the
superintendent of the institution or sheriff of the county from which
escape was made, shall present to the Governor a written application for
a requisition for the return of such person, in which application shall
be stated the name of the person, the crime of which the person was
convicted or found guilty except for insanity, the circumstances of the
escape from confinement or of the breach of the terms of release,
probation or parole, the state in which the person is believed to be,
including the location of the person therein at the time application is
made.
(3) The application shall be verified by affidavit, shall be
executed in duplicate and shall be accompanied by two certified copies of
the indictment returned, or information and affidavit filed, or of the
complaint made to the magistrate, stating the offense with which the
accused is charged, or of the judgment of conviction or of the sentence.
The district attorney, parole board, superintendent or sheriff may also
attach such further affidavits and other documents in duplicate as the
district attorney, parole board, superintendent or sheriff shall deem
proper to be submitted with such application. One copy of the
application, with the action of the Governor indicated by indorsement
thereon, and one of the certified copies of the indictment, complaint,
information and affidavit, or of the judgment of conviction or of the
sentence shall be filed in the office of the Secretary of State to remain
of record in that office. The other copies of all papers shall be
forwarded with the Governor’s requisition. [Formerly 147.230; 1985 c.192
§2](1)
When it is desired to have returned to this state a person charged in
this state with a crime, and such person is imprisoned or is held under
criminal proceedings then pending against the person in another state,
the Governor of this state may agree with the executive authority of such
other state for the extradition of such person before the conclusion of
such proceedings or the term of sentence of the person in such other
state, upon condition that the person be returned to the other state at
the expense of this state as soon as the prosecution in this state is
terminated.
(2) The Governor of this state may also surrender on demand of the
executive authority of any other state any person in this state who is
charged in the manner provided in ORS 133.743 to 133.857 with having
violated the laws of the state whose executive authority is making the
demand, even though such person left the demanding state involuntarily.
[1973 c.836 §129; 1985 c.565 §13; 2005 c.22 §106]In the event a fugitive from this state shall waive
extradition, an agent or agents to secure the return of the fugitive may
be appointed by the district attorney of the county in which the offense
was committed, and the account of such agent or agents embracing
necessary expenses incurred in performing the service, shall be audited
and paid in the same manner as accounts presented under ORS 133.857.
[Formerly 147.235] A
person brought into this state by, or after waiver of, extradition based
on a criminal charge shall not be subject to service of personal process
in civil actions arising out of the same facts as the criminal proceeding
to answer which the person is being or has been returned, until the
person has been convicted in the criminal proceeding, or, if acquitted,
until the person has had reasonable opportunity to return to the state
from which the person was extradited. [Formerly 147.250] (1) Any person
arrested in this state charged with having committed any crime in another
state or alleged to have escaped from confinement, or broken the terms of
security release, probation or parole may waive the issuance and service
of the warrant provided for in ORS 133.773 and 133.777 and all other
procedure incidental to extradition proceedings, by executing or
subscribing in the presence of a judge of any court of record within this
state a writing which states that the person consents to return to the
demanding state; provided, however, that before such waiver shall be
executed or subscribed by such person it shall be the duty of such judge
to inform such person of rights to the issuance and service of a warrant
of extradition and to apply for a writ of habeas corpus as provided for
in ORS 133.787.
(2)(a) If and when such consent has been duly executed it shall
forthwith be forwarded to the office of the Governor of this state and
filed therein. The judge shall direct the officer having such person in
custody to deliver forthwith such person to the duly accredited agent or
agents of the demanding state, and shall deliver or cause to be delivered
to such agent or agents a copy of such consent.
(b) Nothing in this section shall be deemed to limit the right of
the accused person to submit voluntarily to the custody of such agent or
agents for return without formality to the demanding state.
(c) The waiver procedure described in this section is not an
exclusive procedure, nor does it limit the powers, rights or duties of
the officers of the demanding state or of this state.
(3) Notwithstanding subsection (1) of this section, a law
enforcement or corrections agency in this state holding a person who is
alleged to have broken the terms of the person’s security release,
probation, parole or any other release in the demanding state may deliver
the person to the duly accredited agent of the demanding state without
the requirement of a warrant if:
(a) The person has signed a prior waiver of extradition as a term
of the person’s current security release, probation, parole or other
release in the demanding state; and
(b) The law enforcement or corrections agency holding the person
has received an authenticated copy of the prior waiver of extradition
signed by the person and photographs, fingerprints or other evidence
properly identifying the person as the person who signed the waiver.
[Formerly 147.253; 1999 c.1051 §249; 2001 c.230 §1]Nothing contained in ORS 133.743
to 133.857 shall be deemed to constitute a waiver by this state of its
right, power or privilege to try a person demanded under ORS 133.843 for
any crime committed within this state, or of its right, power or
privilege to regain custody of such person by extradition proceedings or
otherwise for the purpose of trial, sentence or punishment for any crime
committed within this state, nor shall any proceedings under ORS 133.743
to 133.857 that result in, or fail to result in, extradition be deemed a
waiver by this state of any of its rights, privileges or jurisdiction in
any way whatsoever. [Formerly 147.256; 1985 c.565 §14; 2005 c.22 §107] After a person
has been brought back to this state upon extradition proceedings, the
person may be tried in this state for other crimes which the person may
be charged with having committed here as well as that specified in the
requisition for extradition. [Formerly 147.260]ORS 133.743 to 133.833 and 133.839 to
133.855 shall be so interpreted and construed as to effectuate their
general purpose to make uniform the law of those states which enact the
Uniform Criminal Extradition Act. [Formerly 147.270]ORS 133.743 to 133.833 and 133.839 to 133.855
may be cited as the Uniform Criminal Extradition Act. [Formerly 147.280] The account of the agent or
agents embracing necessary expenses incurred in performing the service,
after approval by the Governor, shall be paid, after being audited and
allowed as other claims against the state, from any moneys appropriated
therefor. [Formerly 147.290]ARREST AND RETURN ACCOUNT The Arrest and Return Account is
established separate and distinct from the General Fund. The account
consists of moneys deposited into the account under ORS 161.665 and such
other moneys as may be appropriated to the account by law. Moneys in the
account are continuously appropriated to the Governor for the purpose of
paying costs incurred in carrying out the provisions of ORS 133.743 to
133.857. [2003 c.615 §3]Note: 133.865 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 133 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.PENALTIES Any person who maliciously and without probable
cause causes a search warrant or a court order for interception to be
issued and executed is guilty of a Class A misdemeanor. [Formerly
141.990; 1979 c.716 §15; 1983 c.824 §2]
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