State v. Lee

“[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Ore. Const. Art. I, § 9.

Defendant appealed his conviction for felon in possession of a firearm. Defendant assigned error to the denial of his motion to suppress evidence that was seized using an anticipatory search warrant. Defendant argued that there must be probable cause for the warrant at the time it is issued. “[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Ore. Const. Art. I, § 9. The Court reasoned that the Supreme Court decided in United States v. Grubbs, 547 U.S. 90, 96 (2006) that the United States Constitution does not prohibit anticipatory warrants and neither does the Oregon Constitution because there were no textual or historical contexts to prohibit anticipatory warrants. Further, the Court reasoned that all warrants are anticipatory due to the procedure of securing and executing them and that an anticipatory warrant can prevent a warrant from becoming stale, especially when the warrant involves a drug crime. Therefore, anticipatory warrants are constitutional under the Oregon Constitution. Affirmed.