2007 Oregon Code - Chapter 133 :: Chapter 133 - Arrest and Related Procedures - Search and Seizure - Extraditi
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
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
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 Governors
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 agents 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 attorneys 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 childrens 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 persons 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 persons 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 persons
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 attorneys 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.
(2) Failure to appear on a criminal
citation is a Class A misdemeanor. [1999 c.1051 §64 (enacted in lieu of
133.075)]
133.077 [1991 c.592 §2; repealed by 1999 c.1051 §72]
133.080 [1969 c.244 §7; 1971 c.404 §5; 1975 c.451 §172;
1979 c.477 §2; 1983 c.338 §886; repealed by 1999 c.1051 §72]
133.100 [1971 c.404 §1; 1973 c.836 §67; repealed by
1999 c.1051 §72]
WARRANT OF
ARREST
133.110
Issuance; citation. 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]
133.120
Authority to issue warrant.
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 magistrates court. [Amended
by 1969 c.198 §60; 1973 c.836 §69; 1977 c.746 §2; 1983 c.661 §5]
133.130 [Repealed by 1973 c.836 §358]
133.140
Content and form of warrant.
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 officers 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]
133.150 [Repealed by 1961 c.443 §3]
133.160 [Amended by 1959 c.664 §28; repealed by 1961
c.443 §3]
133.170 [Amended by 1961 c.443 §2; repealed by 1973
c.836 §358]
133.210 [Repealed by 1973 c.836 §358]
ARREST
133.220
Who may make 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]
133.225
Arrest by private person.
(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]
133.230 [Repealed by 1971 c.743 §432]
133.235
Arrest by peace officer; procedure. (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 officers 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 officers 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 officers
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]
133.239
Arrest by parole and probation officer; procedure. (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]
133.240 [Repealed by 1973 c.836 §358]
133.245
Arrest by federal officer; procedure. (1) A federal officer may arrest a person:
(a) For any crime committed in the federal
officers 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 persons arrest.
(2) The federal officer shall inform the
person to be arrested of the federal officers 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]
133.250 [Repealed by 1973 c.836 §358]
133.260 [Repealed by 1973 c.836 §358]
133.270 [Repealed by 1973 c.836 §358]
133.280 [Repealed by 1971 c.743 §432]
133.290 [Repealed by 1973 c.836 §358]
133.300 [Repealed by 1973 c.836 §358]
133.310
Authority of peace officer to arrest without warrant. (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
officers 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 officers 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]
133.315
Liability of peace officer making arrest. (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.
133.318
Providing false foreign restraining order; false representation to police officer. (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.
133.320 [Repealed by 1973 c.836 §358]
133.330 [Repealed by 1973 c.836 §358]
133.340
Authority to order arrest for crime committed in presence of magistrate. 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]
133.350 [Repealed by 1973 c.836 §358]
133.360
Arrests on warrant or order transmitted by telegraph. 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]
133.370 [Repealed by 1971 c.743 §432]
133.375
Definitions for ORS 133.375 to 133.381. 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]
133.377
Arrest of persons for cruelty to animals; immunity of peace officer providing
care for animal. (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]
133.379
Duty of peace officer to arrest and prosecute violators of cruelty to animals laws;
disposition of fines. (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]
133.380 [Repealed by 1971 c.743 §432]
133.381
Procedure in arrests for violation of certain restraining orders; arrest of
person not in county where order or warrant issued. (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 PURSUIT
133.410
Short title. ORS 133.410 to
133.440 may be cited as the Uniform Act on Fresh Pursuit.
133.420
Definitions for ORS 133.410 to 133.440. 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
133.430
Authority of officers of other states to make arrest. (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.
133.440
Proceedings following arrest by officer of other state. 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
133.450
After arrest; within or without county in which warrant was issued. (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]
133.455
Receipts for property taken from person in custody; penalty. (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]
133.460
Forfeiture of conveyances used unlawfully to conceal or transport stolen
property. (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 owners 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]
133.465
Seizure of stolen animals or other property being transported; proceedings
against person arrested. (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]
133.470
(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]
133.475
Notice to owner. 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
133.485
Perishable property; livestock or fowls. 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]
133.495
Retention of property to answer order of court. 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]
133.510 [Repealed by 1965 c.508 §8]
133.515
Interpreter to be made available to person with a disability. (1) As used in this section:
(a) Person with a disability 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 person with a disability, translate
the proceedings, and accurately repeat and translate the statements of the
person with a disability to the officer or other person.
(2) Upon the arrest of a person with a
disability and before interrogating or taking the statement of the person with
a disability, the arresting peace officer, or when the arrest is by a private
person, the officer to whom the person with a disability is delivered, shall
make available to the person with a disability, at the earliest possible time,
a qualified interpreter to assist the person with a disability throughout the
interrogation or taking of a statement.
(3) The public employer of the arresting
peace officer or officer to whom the person with a disability is delivered
shall pay the fees and expenses of the qualified interpreter if:
(a) The person with a disability,
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 person with a disability was
arrested concerning the inability to obtain such an interpreter; and
(b) It appears to the court that the
person with a disability was without means and was unable to obtain a qualified
interpreter. [1973 c.386 §3; 1981 s.s. c.3 §139; 1989 c.224 §9; 2007 c.70 §34]
133.520 [Amended by 1965 c.508 §2; 1973 c.836 §75;
renumbered 133.450]
SEARCH AND
SEIZURE
(Generally)
133.525
Definitions for ORS 133.525 to 133.703. 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 attorneys 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]
133.530 [Repealed by 1965 c.508 §8]
133.535
Permissible objects of search and seizure. 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]
133.537
Protection of things seized; liability of agency. (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.
133.540 [Repealed by 1965 c.508 §8]
(Search and
Seizure Pursuant to Warrant)
133.545
Issuance and execution of search 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 informants 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 affidavit
and proposed warrant. The affidavit may have a notarized acknowledgment, or the
affiant may swear to the affidavit by telephone. A judge administering an oath
telephonically under this subsection must execute a declaration that recites
the manner and time of the oaths administration. The declaration must be filed
with the return.
(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 attorneys or police officers application with
the return.
(B) The district attorney or police
officer shall deliver the original signed affidavit to the court with the
return. If the affiant swore to the affidavit by telephone, the affiant must so
note next to the affiants signature on the affidavit. [1973 c.836 §83; 1985
c.344 §1; 1989 c.983 §3; 1995 c.658 §73; 1999 c.56 §1; 2007 c.547 §1]
133.550 [Repealed by 1973 c.836 §358]
133.555
Hearing. (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 judges 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]
133.560 [Repealed by 1973 c.836 §358]
133.565
Contents of search warrant.
(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]
133.575
Execution of warrant. (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]
133.585 [1973 c.836 §87; repealed by 1997 c.313 §37]
133.595
List of things seized.
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]
133.605
Use of force in executing warrants. (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]
133.610 [Amended by 1963 c.511 §1; 1965 c.508 §3;
1973 c.836 §138; renumbered 135.070]
133.615
Return of the warrant. (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]
133.617
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.
133.619
Execution of warrant authorizing mobile tracking device. (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.
133.620 [Amended by 1965 c.508 §4; renumbered
135.075]
133.621
Medical procedures; immunity from liability for performing. 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)
133.623
Handling and 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]
133.625 [1961 c.696 §1; 1967 c.475 §1; 1973 c.836 §135;
renumbered 135.050]
133.630 [Repealed by 1961 c.696 §4]
133.633
Motion for return or restoration of things seized. (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]
133.635 [1961 c.696 §3; 1967 c.628 §2; renumbered
135.080]
133.640 [Repealed by 1965 c.508 §8]
133.643
Ground for motion for return or restoration of things seized. 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 courts 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]
133.650 [Repealed by 1973 c.836 §358]
133.653
Postponement of return or restoration; appellate review. (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]
133.660 [Amended by 1961 c.289 §1; 1965 c.508 §5;
1973 c.836 §139; renumbered 135.085]
133.663
Disputed possession rights.
(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]
133.665 [Repealed by 1961 c.289 §3]
133.670 [Renumbered 135.090]
(Evidentiary
Exclusion)
133.673
Motions to suppress evidence.
(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]
133.680 [Renumbered 135.095]
133.683 [1973 c.836 §117; repealed by 1997 c.313 §37]
133.690 [Renumbered 135.100]
133.693
Challenge to truth of evidence.
(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]
133.700 [Renumbered 135.105]
133.703
Identity of informants. (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]
133.710 [Renumbered 135.115]
133.720 [Renumbered 135.125]
INTERCEPTION
OF COMMUNICATIONS
133.721
Definitions for ORS 41.910 and 133.721 to 133.739. 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]
133.723
Records confidential. 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]
133.724
Order for interception of communications; application; grounds for issuance;
contents of order; progress reports. (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) A particular felony of murder,
kidnapping, arson, robbery, bribery, extortion or other crime dangerous to life
and punishable as a felony;
(B) A crime punishable as a felony under
ORS 166.720, 475.840, 475.846 to 475.894 or 475.904 to 475.910 or as a
misdemeanor under ORS 167.007; or
(C) 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
other investigative procedures 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 planning or the commission of that crime are open to the
public or are owned by, 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) An order entered pursuant to this
section may not 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 and in no event for 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 of that order shall contain a provision that the
authorization to intercept must be executed as soon as practicable, must 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; 2007 c.442 §1]
133.725 [Formerly 141.720; repealed by 1979 c.716 §3
(133.724 enacted in lieu of 133.725)]
133.726
Interception of oral communication without order; order for interception of
oral communication; application; grounds for issuance; contents of order; penalties. (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 a person
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 persons 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
applicants authority to make the application;
(b) A statement demonstrating that:
(A) 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; or
(B)(i) There is reasonable suspicion to
believe that a person whose oral communication is to be intercepted is engaged
in committing, has committed or is about to commit a crime;
(ii) There is reasonable suspicion to
believe that the circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical injury or
sexual assault to a law enforcement officer or a person under the direct
supervision of the officer;
(iii) Interception of the oral
communication is necessary to protect the safety of the person who may be
endangered; and
(iv) Other 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
(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)(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; or
(b)(A) There is reasonable suspicion to
believe that a person whose oral communication is to be intercepted is engaged
in committing, has committed or is about to commit a crime;
(B) There is reasonable suspicion to
believe that the circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical injury or
sexual assault to a law enforcement officer or a person under the direct supervision
of the officer;
(C) Interception of the oral communication
is necessary to protect the safety of the person who may be endangered; and
(D) Other 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.
(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 a person 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 a person 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 475.904 to 475.910 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 the person
under the officers 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
(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 officers employment and as a part of assigned duties.
(11) As used in this section, law
enforcement officer means an officer employed by the
(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; 2007 c.442 §2]
Note: The amendments to 133.726 by section 3,
chapter 442,
133.726. (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 a person
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 persons 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
applicants 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 a person 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 a person 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 the person
under the officers 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
(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 officers employment and as a part of assigned duties.
(11) As used in this section, law
enforcement officer means an officer employed by the
(12) Violation of subsection (9) of this
section is a Class A misdemeanor.
133.727
Proceeding under expired order prohibited. 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]
133.729
Recording intercepted communications; method; delivery to court; custody. 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]
133.730 [Renumbered 135.135]
133.731
Inventory; contents; inspection of intercepted communications. (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 judges
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 judges discretion make available to such person or the
persons 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]
133.733
Procedure for introduction as evidence. 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]
133.735
Suppression of intercepted communications; procedure; grounds; appeal. (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 judges discretion make available to the aggrieved person or
the persons 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]
133.736
Motion to suppress intercepted oral communication; right of state to appeal. (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 judges discretion make available to the aggrieved person or the
persons 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]
133.737
Disclosure and use of intercepted communications. (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]
133.739
Civil damages for willful interception, disclosure or use of communications;
attorney fees; defense; effect on other remedies. (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]
133.740 [Renumbered 135.145]
UNIFORM
CRIMINAL EXTRADITION ACT
133.743
Definitions for ORS 133.743 to 133.857; appointment of legal counsel to assist
Governor. (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]
133.745
Determination of security requirements to carry out extradition. 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.
133.747
Fugitives from other states; Governor to cause arrest and delivery of criminals. 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]
133.750 [Renumbered 135.155]
133.753
Form of demand. 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]
133.755 [1961 c.521 §1; repealed by 1973 c.836 §358]
133.757
Investigation of demand and report. 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]
133.760 [Amended by 1973 c.836 §140; renumbered
135.165]
133.763
Facts documents must show. 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]
133.767
Extradition of person not present in demanding state at time of commission of
crime. 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]
133.770 [Renumbered 136.345]
133.773
Governors warrant of arrest.
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]
133.777
Execution of the warrant.
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]
133.780 [Renumbered 136.347]
133.783
Authority of arresting officer to command assistance. 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]
133.787
Rights of arrested person.
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]
133.793
Penalty for disobedience to ORS 133.787. Any officer who shall deliver to the agent for extradition of the
demanding state a person in the custody of the officer under the Governors
warrant in disobedience to ORS 133.787 commits a Class B misdemeanor. [Formerly
147.110]
133.797
Confinement of prisoner. (1)
The officer or person executing the Governors 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]
133.803
Arrest prior to requisition.
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]
133.805
Arrest without warrant. 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]
133.807
Commitment to await arrest on requisition. 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]
133.809
Release. 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]
133.810 [Amended by 1973 c.836 §141; renumbered
135.175]
133.813
Proceedings in absence of arrest under executive warrant within specified time. 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]
133.815
Forfeiture; recovery thereon.
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]
133.817
Persons under criminal prosecution in this state at time of requisition. 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]
133.820 [Amended by 1973 c.836 §142; renumbered
135.185]
133.823
When guilt of accused may be inquired into. 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]
133.825
Governor may recall warrant.
The Governor may recall the Governors warrant of arrest or may issue another
warrant whenever the Governor deems proper. [Formerly 147.210]
133.827
Warrant to agent to return fugitive from this state. 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]
133.830 [Amended by 1973 c.836 §143; renumbered
135.195]
133.833
Application for requisition; filing and forwarding of papers. (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 Governors requisition. [Formerly 147.230;
1985 c.192 §2]
133.835
Extradition of persons imprisoned or awaiting trial in another state or who
have left the demanding state under compulsion. (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]
133.837
Appointment of agent to return fugitive from this state who waives extradition. 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]
133.839
Immunity from civil process in certain civil cases. 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]
133.840 [Amended by 1973 c.836 §144; renumbered
135.205]
133.843
Written waiver of extradition proceedings. (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 persons 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 persons 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]
133.845
Nonwaiver by this state.
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]
133.847
Trial of extradited person for other crimes. 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]
133.850 [Renumbered 135.215]
133.853
Construction of Act. 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]
133.855
Short title. ORS 133.743 to
133.833 and 133.839 to 133.855 may be cited as the Uniform Criminal Extradition
Act. [Formerly 147.280]
133.857
Payment of agents expenses.
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]
133.860 [Amended by 1959 c.638 §14; 1965 c.508 §6;
1973 c.836 §145; renumbered 135.225]
ARREST AND
RETURN ACCOUNT
133.865
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
133.990 [Renumbered 135.990]
133.992
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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