State v. Lee

A warrant application satisfies the requirement in ORS 133.545(6) when it “particularly sets forth the facts and circumstances tending to show that the objects of the search are in the places . . . to be searched.”

Defendant appealed the appellate decision affirming the constitutionality of an “anticipatory warrant” that preceded Defendant’s conviction for weapon and drug possession. Defendant assigned error to the denial of his motion to suppress evidence resulting from the warrant. Defendant argued Article I, section 9 requirements, as stated in ORS 133.545(6), barred the use of anticipatory warrants. The State argued that the anticipatory warrant was federally constitutional and properly issued. Rather than reach the constitutional question, the Court focused its analysis on the applicable statute. A warrant application satisfies the requirement in ORS 133.545(6) when it “particularly sets forth the facts and circumstances tending to show that the objects of the search are in the places . . . to be searched.” The Court found the plain text of the statute to be dispositive and, therefore, the text of the statute necessitated the present existence of objects to support probable cause when a search warrant was issued. The Court concluded the evidence seized pursuant to the statutorily defective warrant must be excluded. Reversed the Court of Appeals’ decision; reversed the judgment of the circuit court and remanded for further proceedings.