State v. Monger

"[A] 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." ORS 133.565(3).

The trial court denied Defendant’s pretrial motion to suppress evidence. At trial, Defendant was convicted of various sex crimes against minors. On appeal, Defendant argued that police executed the warrant only when they copied his devices' content on September 24, in excess of five days of it being issued on August 22. The State recognized the non-unanimous jury error under Ramos v. Louisiana, 590 US ___ (2020); cf. State v. Ulery, 366 Or 500 (2020) (convictions by non-unanimous jury verdicts are “plain error”). However, the State posited that August 23 was the date of execution because that is when it was delivered to the forensic detective. ORS 133.565(3) requires search warrants be “executed. . . within five days of. . . issuance." The Court found that the statute's use of “executed” did not mean the conclusion of a search, see State v. Callaghan, 33 Or App 49, 56 (1978), but rather when the search began. Here, the warrant was “executed” when delivered to the forensic detective. Therefore, the trial court did not abuse its discretion in denying Defendant’s motion, but Defendant’s ORS 163.427 conviction is nevertheless reversed as “plain error.” Reversed in part and remanded.