US Laws, Codes, Statutes & Cases

Chapter 133 — Arrest and Related Procedures; Search and Seizure; Extradition

 

2007 EDITION

 

ARREST AND RELATED PROCEDURES

 

PROCEDURE IN CRIMINAL MATTERS GENERALLY

 

GENERAL PROVISIONS

 

133.005     Definitions for ORS 131.655, 133.005 to 133.381 and 133.410 to 133.450

 

133.007     Sufficiency of information or complaint

 

133.015     Contents of information or complaint

 

133.020     Magistrate defined

 

133.030     Who are magistrates

 

133.033     Peace officer; community caretaking functions

 

CRIMINAL CITATIONS

 

133.055     Criminal citation; exception for domestic disturbance; notice of rights

 

133.060     Cited person to appear before magistrate; effect of failure to appear; arrest warrant

 

133.065     Service of criminal citation

 

133.066     Criminal citations generally

 

133.068     Contents of criminal citation issued without complaint

 

133.069     Contents of criminal citation issued with complaint; nonconformance

 

133.070     Criminal citation where arrest without warrant is authorized for ordinance violation

 

133.073     Electronic filing of criminal citation; court rules

 

133.076     Failure to appear on criminal citation

 

WARRANT OF ARREST

 

133.110     Issuance; citation

 

133.120     Authority to issue warrant

 

133.140     Content and form of warrant

 

ARREST

 

133.220     Who may make arrest

 

133.225     Arrest by private person

 

133.235     Arrest by peace officer; procedure

 

133.239     Arrest by parole and probation officer; procedure

 

133.245     Arrest by federal officer; procedure

 

133.310     Authority of peace officer to arrest without warrant

 

133.315     Liability of peace officer making arrest

 

133.318     Providing false foreign restraining order; false representation to police officer

 

133.340     Authority to order arrest for crime committed in presence of magistrate

 

133.360     Arrests on warrant or order transmitted by telegraph

 

133.375     Definitions for ORS 133.375 to 133.381

 

133.377     Arrest of persons for cruelty to animals; immunity of peace officer providing care for animal

 

133.379     Duty of peace officer to arrest and prosecute violators of cruelty to animals laws; disposition of fines

 

133.381     Procedure in arrests for violation of certain restraining orders; arrest of person not in county where order or warrant issued

 

UNIFORM ACT ON FRESH PURSUIT

 

133.410     Short title

 

133.420     Definitions for ORS 133.410 to 133.440

 

133.430     Authority of officers of other states to make arrest

 

133.440     Proceedings following arrest by officer of other state

 

PROCEDURES AFTER ARREST

 

133.450     After arrest; within or without county in which warrant was issued

 

133.455     Receipts for property taken from person in custody; penalty

 

133.460     Forfeiture of conveyances used unlawfully to conceal or transport stolen property

 

133.465     Seizure of stolen animals or other property being transported; proceedings against person arrested

 

133.470     Sale of seized property; rights of owner and lienholder

 

133.475     Notice to owner

 

133.485     Perishable property; livestock or fowls

 

133.495     Retention of property to answer order of court

 

133.515     Interpreter to be made available to person with a disability

 

SEARCH AND SEIZURE

 

(Generally)

 

133.525     Definitions for ORS 133.525 to 133.703

 

133.535     Permissible objects of search and seizure

 

133.537     Protection of things seized; liability of agency

 

(Search and Seizure Pursuant to Warrant)

 

133.545     Issuance and execution of search warrant

 

133.555     Hearing

 

133.565     Contents of search warrant

 

133.575     Execution of warrant

 

133.595     List of things seized

 

133.605     Use of force in executing warrants

 

133.615     Return of the warrant

 

133.617     “Mobile tracking device” defined

 

133.619     Execution of warrant authorizing mobile tracking device

 

133.621     Medical procedures; immunity from liability for performing

 

(Disposition of Things Seized)

 

133.623     Handling and disposition of things seized

 

133.633     Motion for return or restoration of things seized

 

133.643     Ground for motion for return or restoration of things seized

 

133.653     Postponement of return or restoration; appellate review

 

133.663     Disputed possession rights

 

(Evidentiary Exclusion)

 

133.673     Motions to suppress evidence

 

133.693     Challenge to truth of evidence

 

133.703     Identity of informants

 

INTERCEPTION OF COMMUNICATIONS

 

133.721     Definitions for ORS 41.910 and 133.721 to 133.739

 

133.723     Records confidential

 

133.724     Order for interception of communications; application; grounds for issuance; contents of order; progress reports

 

133.726     Interception of oral communication without order; order for interception of oral communication; application; grounds for issuance; contents of order; penalties

 

133.727     Proceeding under expired order prohibited

 

133.729     Recording intercepted communications; method; delivery to court; custody

 

133.731     Inventory; contents; inspection of intercepted communications

 

133.733     Procedure for introduction as evidence

 

133.735     Suppression of intercepted communications; procedure; grounds; appeal

 

133.736     Motion to suppress intercepted oral communication; right of state to appeal

 

133.737     Disclosure and use of intercepted communications

 

133.739     Civil damages for willful interception, disclosure or use of communications; attorney fees; defense; effect on other remedies

 

UNIFORM CRIMINAL EXTRADITION ACT

 

133.743     Definitions for ORS 133.743 to 133.857; appointment of legal counsel to assist Governor

 

133.745     Determination of security requirements to carry out extradition

 

133.747     Fugitives from other states; Governor to cause arrest and delivery of criminals

 

133.753     Form of demand

 

133.757     Investigation of demand and report

 

133.763     Facts documents must show

 

133.767     Extradition of person not present in demanding state at time of commission of crime

 

133.773     Governor’s warrant of arrest

 

133.777     Execution of the warrant

 

133.783     Authority of arresting officer to command assistance

 

133.787     Rights of arrested person

 

133.793     Penalty for disobedience to ORS 133.787

 

133.797     Confinement of prisoner

 

133.803     Arrest prior to requisition

 

133.805     Arrest without warrant

 

133.807     Commitment to await arrest on requisition

 

133.809     Release

 

133.813     Proceedings in absence of arrest under executive warrant within specified time

 

133.815     Forfeiture; recovery thereon

 

133.817     Persons under criminal prosecution in this state at time of requisition

 

133.823     When guilt of accused may be inquired into

 

133.825     Governor may recall warrant

 

133.827     Warrant to agent to return fugitive from this state

 

133.833     Application for requisition; filing and forwarding of papers

 

133.835     Extradition of persons imprisoned or awaiting trial in another state or who have left the demanding state under compulsion

 

133.837     Appointment of agent to return fugitive from this state who waives extradition

 

133.839     Immunity from civil process in certain civil cases

 

133.843     Written waiver of extradition proceedings

 

133.845     Nonwaiver by this state

 

133.847     Trial of extradited person for other crimes

 

133.853     Construction of Act

 

133.855     Short title

 

133.857     Payment of agent’s expenses

 

ARREST AND RETURN ACCOUNT

 

133.865     Arrest and Return Account

 

PENALTIES

 

133.992     Penalties

 

GENERAL PROVISIONS

 

      133.005 Definitions for ORS 131.655, 133.005 to 133.381 and 133.410 to 133.450. As used in ORS 131.655 and 133.005 to 133.381 and 133.410 to 133.450, unless the context requires otherwise:

      (1) “Arrest” means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A “stop” as authorized under ORS 131.605 to 131.625 is not an arrest.

      (2) “Federal officer” means a special agent or law enforcement officer employed by a federal agency and who is empowered to effect an arrest with or without a warrant for violations of the United States Code and who is authorized to carry firearms in the performance of duty.

      (3) “Peace officer” means a member of the Oregon State Police or a sheriff, constable, marshal, municipal police officer, 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 of the State of Oregon. [1973 c.836 §62; 1979 c.656 §1; 1981 c.808 §1; 1991 c.67 §25; 1993 c.254 §1; 1995 c.651 §6]

 

      133.007 Sufficiency of information or complaint.(1) An information or complaint is sufficient if it can be understood therefrom that:

      (a) The defendant is named, or if the name of the defendant cannot be discovered, the defendant is described by a fictitious name, with the statement that the real name of the defendant is unknown to the complainant.

      (b) The offense was committed within the jurisdiction of the court, except when, as provided by law, the act, though done without the county in which the court is held, is triable within.

      (c) The offense was committed at some time prior to the filing of the information or complaint and within the time limited by law for the commencement of an action therefor.

      (2) The information or complaint shall not contain allegations that the defendant has previously been convicted of any offense that might subject the defendant to enhanced penalties.

      (3) Words used in a statute to define an offense need not be strictly followed in the information or complaint, but other words conveying the same meaning may be used. [1973 c.836 §63; 2005 c.22 §101]

 

      133.010 [Amended by 1965 c.508 §1; repealed by 1973 c.836 §358]

 

      133.015 Contents of information or complaint. An information or complaint shall contain substantially the following:

      (1) The name of the court in which it is filed;

      (2) The title of the action;

      (3) A statement that accuses the defendant or defendants of the designated offense or offenses;

      (4) A separate accusation or count addressed to each offense charged, if there be more than one;

      (5) A statement in each count that the offense charged therein was committed in a designated county;

      (6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time;

      (7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended; and

      (8) The verification by the complainant and the date of the signing of the information or complaint. [1973 c.836 §64]

 

      133.020 Magistrate defined. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime.

 

      133.030 Who are magistrates. The following persons are magistrates:

      (1) Judges of the Supreme Court;

      (2) Judges of the Court of Appeals;

      (3) Judges of the circuit court;

      (4) County judges and justices of the peace; and

      (5) Municipal judges. [Amended by 1961 c.724 §27; 1969 c.198 §59; 1977 c.746 §1; 1995 c.658 §72]

 

      133.033 Peace officer; community caretaking functions. (1) Except as otherwise expressly prohibited by law, any peace officer of this state, as defined in ORS 133.005, is authorized to perform community caretaking functions.

      (2) As used in this section, “community caretaking functions” means any lawful acts that are inherent in the duty of the peace officer to serve and protect the public. “Community caretaking functions” includes, but is not limited to:

      (a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:

      (A) Prevent serious harm to any person or property;

      (B) Render aid to injured or ill persons; or

      (C) Locate missing persons.

      (b) The right to stop or redirect traffic or aid motorists or other persons when such action reasonably appears to be necessary to:

      (A) Prevent serious harm to any person or property;

      (B) Render aid to injured or ill persons; or

      (C) Locate missing persons.

      (3) Nothing contained in this section shall be construed to limit the authority of a peace officer that is inherent in the office or that is granted by any other provision of law. [1991 c.959 §1]

 

      Note: 133.033 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.

 

      133.037 [1971 c.743 §289; 1973 c.836 §33; renumbered 131.655]

 

      133.040 [Repealed by 1965 c.508 §8]

 

      133.045 [1969 c.244 §1; 1973 c.836 §65; 1974 c.42 §1; repealed by 1999 c.1051 §72]

 

      133.050 [Repealed by 1959 c.426 §1]

 

CRIMINAL CITATIONS

 

      133.055 Criminal citation; exception for domestic disturbance; notice of rights. (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 a disability 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 the small claims department of a court if the total amount claimed is under $7,500.

      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; 2007 c.70 §33; 2007 c.125 §7]

 

      Note: Section 8, chapter 125, Oregon Laws 2007, provides:

      Sec. 8. The amendments to ORS 46.405, 46.425, 46.461, 51.080, 55.011, 55.095 and 133.055 by sections 1 to 7 of this 2007 Act apply to all actions commenced in the small claims department of a court on or after the effective date of this 2007 Act [January 1, 2008], without regard to whether the claim for which the action is commenced arose before, on or after the effective date of this 2007 Act. [2007 c.125 §8]

 

      133.060 Cited person to appear before magistrate; effect of failure to appear; arrest warrant. (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]

 

      133.065 Service of criminal citation. 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]

 

      133.066 Criminal citations generally. (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]

 

      133.067 [1991 c.824 §2; 1995 c.292 §2; repealed by 1999 c.1051 §72]

 

      133.068 Contents of criminal citation issued without complaint. 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]

 

      133.069 Contents of criminal citation issued with complaint; nonconformance. (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]

 

      133.070 Criminal citation where arrest without warrant is authorized for ordinance violation. (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]

 

      133.072 [1983 c.661 §10; repealed by 1999 c.1051 §72]

 

      133.073 Electronic filing of criminal citation; court rules. (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]

 

      133.075 [1969 c.244 §9; 1973 c.836 §66; 1983 c.661 §3; repealed by 1999 c.1051 §63 (133.076 enacted in lieu of 133.075)]

 

      133.076 Failure to appear on criminal citation. (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.