State v. Lee ( 2023 )

200 June 29, 2023 No. 17
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
AARON CHRISTOPHER LEE,
Petitioner on Review.
(CC 18CR62116) (CA A171927) (SC S069654)
On review from the Court of Appeals.*
Argued and submitted March 9, 2023, at University of
Oregon School of Law, Eugene, Oregon.
Erik Blumenthal, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
Peenesh Shah, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Ellen Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong and James, Justices, and Walters, Senior
Judge, Justice pro tempore.
JAMES, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and this case is
remanded to the circuit court for further proceedings.
______________
* Appeal from Linn County Circuit Court, David E. Delsman, Judge. 319
Or App 191, 509 P3d 689 (2022).
Cite as 371 Or 200 (2023) 201
202 State v. Lee
JAMES, J.
An informant told law enforcement that a person
named “Tom Collins” was dealing heroin from a residence in
Albany, Oregon. Detectives planned to utilize the informant
in executing a controlled buy (a law enforcement informant’s
purchase of drugs) at the residence. However, rather than
relying on the observations and results from that controlled
buy to subsequently apply for a warrant, the detectives
applied for, and obtained, a search warrant for the residence
that anticipated that controlled buy. The state argues that
the warrant at issue here is an “anticipatory warrant” of
the type approved, for purposes of the Fourth Amendment
to the United States Constitution, by the United States
Supreme Court in United States v. Grubbs, 547 US 90, 126
S Ct 1494, 164 L Ed 2d 195 (2006). As Grubbs defined them,
anticipatory warrants are “ ‘based upon an affidavit show-
ing probable cause that at some future time (but not pres-
ently) certain evidence of crime will be located at a specified
place.’ ” 547 US at 94 (quoting Wayne R. LaFave, 2 Search
and Seizure § 3.7(c), 398 (4th ed 2004)). According to the
state, the reasoning underlying Grubbs is equally persua-
sive in the factual context presented here and in the context
of Article I, section 9, of the Oregon Constitution; thus, the
state argues, we should affirm the Court of Appeals, which
found such “anticipatory warrants” lawful. Defendant dis-
agrees and argues that anticipatory warrants are incompat-
ible with Article I, section 9.
As we explain, we decline to reach the constitutional
question that the parties present, because we conclude that
Oregon’s statutory warrant requirements, including ORS
133.555(2) and ORS 133.545(6), permit us to resolve this
case without reaching that question. Under ORS 133.555(2),
a judge may issue a warrant only when “the basis of the
record made before the judge” establishes that “there is
probable cause to believe that the search will discover things
specified in the application” and the warrant application
satisfies the requirement in ORS 133.545(6) that it “particu-
larly set[ ] 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.” (Emphases
added.) The affidavit in support of the warrant here failed
Cite as 371 Or 200 (2023) 203
to comply with the requirements of ORS 133.545(6). As a
result, the warrant issued in defendant’s case did not comply
with ORS 133.555(2), and the trial court erred in denying
defendant’s motion to suppress, pursuant to ORS 133.673(1).
Accordingly, the decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and this case
is remanded to the circuit court for further proceedings.
BACKGROUND
The material facts are undisputed. Detective Davis
worked for the Albany Police Department. Sometime in late
November or early December of 2016, Davis interviewed an
individual who was facing criminal charges in Linn County.
The individual “had provided information leading to the sei-
zure of dealer quantities of multiple types of narcotics within
the past year” and had been deemed a confidential reliable
informant. That person was willing to provide informa-
tion in exchange for consideration on his pending criminal
matter. Specifically, that informant implicated a person—
Collins—and “referenced a location for heroin sourcing” at a
specific address on Marion Street in Albany.
On December 2, 2016, a detective from the Lebanon
Police Department, McCubbins, informed Detective Davis
that an officer had arrested someone named Quinlan the
previous day for a parole violation. Like the original infor-
mant, Quinlan desired to serve as an informant in exchange
for a reduction in his sentence. He told Detective McCubbins
that “his primary source of heroin” was Collins at the Marion
Street address.
Detective Davis drove past the residence, which he
knew from the Linn County Assessor’s Office that Collins
and another person owned. Davis observed a pickup truck
parked in the driveway that was registered to the same peo-
ple. However, detectives observed no specific activity con-
sistent with drug dealing. Davis then spoke with Quinlan,
who identified Collins from a photograph. Quinlan told
Davis that he had purchased heroin from Collins at the
Marion Street address “about twice a week for the past four
months.” He also stated that he had “purchased 1/4 ounce
increments of the drug in the past for $325.” Law enforce-
ment had not utilized Quinlan as an informant previously.
204 State v. Lee
Quinlan agreed to do “a controlled buy of heroin—that is,
the purchase of drugs by an informant for law enforcement
—from” Collins at the Marion Street address in exchange
for consideration on pending criminal charges and his pend-
ing parole violation.
Detective Davis submitted a warrant application
with the bolded header: “Anticipatory Search Warrant
Requested.” That application asked for “an anticipatory
search warrant if the following factors are met:
“• [Quinlan] is searched and found not to possess any
money other than narcotics investigative buy monies
furnished by the Albany Police Department.
“• [Quinlan] is continuously surveilled to go directly to
[the Marion Street address in] Albany, Linn County,
Oregon by law enforcement officers.
“• Surveillance on [the Marion Street address] is constant
until [Quinlan] emerges from [that address] and is
taken back into custody by law enforcement officers.
“• [Quinlan] is searched by law enforcement officers and
found in possession of field tested presumptive positive
heroin, and found to no longer be in possession of nar-
cotics investigative buy monies previously furnished by
the Albany Police Department.”
The trial court issued the warrant the same day. The court
incorporated the four identified triggering events and condi-
tioned execution of the warrant on law enforcement’s assess-
ment that all four events had occurred. The warrant further
provided that, if the triggering events occurred, the officers
were to execute the warrant immediately.
The detectives executed the controlled buy and,
concluding that the triggering events had occurred, waited
until Collins left the residence to arrest him and execute
the search warrant. In executing the warrant, law enforce-
ment discovered over 70 grams of heroin, $300 in cash, drug
records, packaging materials, scales, firearms, and stolen
property.
Defendant was present at the residence when the
warrant was executed. Police interviewed others present, who
reported that defendant had been “a party to the drug deal.”
Cite as 371 Or 200 (2023) 205
Defendant had a backpack in which police found a firearm
and methamphetamine. Defendant admitted having been
in the residence and present at the scene of the transaction
but denied any involvement. Ultimately, the state charged
defendant with unlawful delivery of heroin, ORS 475.850;
unlawful possession of methamphetamine, ORS 475.894;
felon in possession of a firearm, ORS 166.270(1); and felon
in possession of a restricted weapon, ORS 166.270(2).
Before trial, defendant filed a motion to suppress
evidence derived from the search warrant, relying on ORS
133.545 as well as the state and federal constitutions. The
trial court denied the motion, ruling:
“I have reviewed the documents provided, and I don’t find a
basis for concluding that the Oregon Constitution’s protec-
tions against unreasonable search and seizure are signifi-
cantly different than—or different at all from the United
States Constitution with regard to this particular factual
setting.
“So, I do find, based on the federal case law and the fact
that Oregon’s constitutional provisions are identical to the
federal constitutional provisions, that an anticipatory war-
rant is not forbidden based on constitutional principles.
“I do find that when a warrant is procured in the man-
ner as set out in U.S. v. Grubbs, that an anticipatory war-
rant is valid under the Oregon Constitution.”
On appeal, defendant challenged the trial court’s
ruling, citing ORS 133.545 but confining his arguments to
Article I, section 9. The state argued, in part, that nothing
“prohibits a warrant based on probable cause that evidence
will be present after a future event occurs.” (Emphasis in
original.) The Court of Appeals affirmed the trial court in a
divided opinion that did not address the statute. State v. Lee,
319 Or App 191, 509 P3d 689 (2022). The majority reviewed
Grubbs, as well as state courts’ treatment of anticipatory
warrants under state constitutions. See, e.g., Pennsylvania v.
Glass, 562 Pa 187, 192 nn 3 & 4, 754 A2d 655, 658 nn 3 & 4
(2000) (surveying federal and state approaches to anticipa-
tory warrants). The majority concluded that “[t]he text of and
historical context for Article I, section 9, does not foreclose
206 State v. Lee
the concept or use of anticipatory warrants, and * * * when
adhering to the strictures applicable to all warrants, antici-
patory warrants are permissible under Article I, section 9.”
Lee, 319 Or App at 203.
Having concluded that Article I, section 9, did not
categorically prohibit anticipatory warrants, the majority in
the Court of Appeals then turned to the question of whether
the particular warrant in this case established probable
cause to search, and concluded that it did:
“We conclude that the affidavit contained sufficient
information to establish probable cause that the controlled
buy would return evidence. * * *
“* * * * *
“In consideration of all of the information provided in
the affidavit, there were sufficient indicia of credibility of
the informants and the reliability of information provided
to conclude that there was probable cause that the con-
trolled buy would yield contraband or evidence.”
Id. at 205-06.
Judge Mooney dissented. She questioned whether
Article I, section 9, of the Oregon Constitution might require
more than the Fourth Amendment, noting, “Oregonians
have a long history of providing greater protection of certain
fundamental rights under the state constitution than the
federal constitution provides. I do not think we should settle
for less here.” Id. at 207 (Mooney, J., dissenting).
We allowed review. Before this court, defendant
argues that Article I, section 9, prohibits anticipatory war-
rants. Defendant argues that the requirements of Article I,
section 9, are “reflected” in ORS 133.545(6), which defen-
dant cites, with emphasis:
“ORS 133.545(6) explicitly requires that supporting affida-
vits ‘shall * * * particularly set[ ] forth the facts and circum-
stances tending to show that the objects of the search are
in the places, or in the possession of the individuals, to be
searched.’ (Emphasis added.)”
The state, in response, argues that anticipatory warrants
have been widely accepted nationally, and points in par-
ticular to the analysis in Grubbs. Having set forth that
Cite as 371 Or 200 (2023) 207
procedural background and the issue as the parties present
it, we turn to the merits.
ANTICIPATORY WARRANTS
Throughout the life of this case, the parties and the
lower courts have labeled the warrant here as an “anticipa-
tory warrant.” The warrant application itself contains the
bolded header “Anticipatory Search Warrant Requested.”
The meaning of that term is not obvious. Accordingly, for
the benefit of the reader, and to properly contextualize the
use of that term and the parties’ arguments about the legal-
ity of such warrants, we think it is helpful to briefly explore
their history.1
Anticipatory warrants “anticipate” some component
of probable cause to search. Probable cause to search exists
at the intersection of four things: criminality, evidentiary
value, location, and time. As Professor LaFave summarizes:
“Probable cause to search * * * ordinarily may be said to
exist only if it is established that certain identifiable objects
are probably connected with certain criminal activity and
are probably to be found at the present time in a certain
identifiable place.”
Wayne R. LaFave, 2 Search and Seizure § 3.7, 455 (6th ed
2020). Accordingly, police officers may be able to establish
that it is more likely than not that a crime occurred, but if
they cannot establish that certain objects have an eviden-
tiary value that connects the objects to the crime, the offi-
cers will not have probable cause to search for those items.
Similarly, if police officers can establish that it is more likely
than not that a crime occurred, and can reasonably connect
certain objects to that crime, but cannot establish that it is
more likely than not that those objects are located at the
place of the requested search, then the officers will not have
probable cause to search that location.
1
The treatment of anticipatory warrants has developed in a body of law most
frequently concerned with their constitutionality. Because we are deciding this
issue on statutory, and not constitutional grounds, we present this background
only as context for anticipatory warrants as a concept. We are not called upon to,
and explicitly do not, consider the constitutional analyses of these cases.
208 State v. Lee
Connecting criminality, evidentiary value, and
location is the fourth aspect: time. For example, the pas-
sage of time may render it unlikely that certain evidence
will remain at a location—a principle known as staleness.
Alternatively, it is possible that items will be, but are not
yet, at the location the police seek to search. As we explain,
anticipatory warrants first arose to address that potential
circumstance.
The concept of an anticipatory warrant, although
not the label, first arose in 1969, in United States ex rel. Beal
v. Skaff, 418 F2d 430 (7th Cir 1969). Beal involved a pack-
age of marijuana that federal officials had intercepted in the
mail. Id. at 432. Law enforcement identified the occupant of
the address on the package as Beal, then arranged for the
package to be delivered at “12:34 P.M., on October 24, 1967,
by carrier delivery to said premises.” Id. They also obtained
a warrant, prior to the delivery, to search Beal’s home once
the package was delivered. Id.
Following the search, the defendant challenged the
warrant on the grounds that “the district attorney did not
allege that marijuana was on the premises to be searched,
but only that it ‘will be’ on those premises at 12:34 that day.”
Id. Therefore, the defendant argued, “since there were no
facts sufficient to support a belief that an offense ‘has been
or is being committed,’ the warrant violated the Fourth
Amendment guarantee that ‘no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation
* * *.’ ” Id. (footnote omitted).
The Seventh Circuit rejected Beal’s challenge with-
out lengthy analysis. The court approached the issue as
essentially one of staleness, ultimately holding:
“[T]here was probable cause to believe that the parcel would
be delivered 19 minutes from the time of issuance, and
probable cause to believe that the warrant, when executed
forthwith, could not be executed until after such delivery
took place. There was, then, no danger that the property
seized would be other than that specified in the affidavit
upon which the warrant was issued.”
Id. at 433.
Cite as 371 Or 200 (2023) 209
The first use of the term “anticipatory warrant”
appears to have been in 1977, in State v. Mier, 147 NJ Super
17, 19, 370 A2d 515, 516 (App Div 1977):
“The issue for determination is whether a search warrant
is valid when issued on an affidavit which alleges that the
contraband is en route from a foreign country through
the mail and has not as yet reached the addressee in New
Jersey. Is an anticipatory warrant valid under such cir-
cumstances when issued prior to receipt at the destination
to be searched?”
Over time, legal scholars came to express a common
understanding of anticipatory warrants:
“Although the specific requirements vary by circuit, antici-
patory search warrants generally involve authorities’ inter-
cepting contraband in transit, either through the mail or
by automobile. They then ask a magistrate judge to issue
a search warrant based on probable cause that the contra-
band will reach its destination in a ‘controlled delivery,’ and
will be waiting at the place to be searched at the time of the
search. Usually, the authorization to execute the warrant
will be conditioned upon the occurrence of a specific event,
sometimes referred to as a ‘triggering event,’ such as the
delivery of the package containing the contraband and its
introduction into the premises specified in the anticipatory
search warrant.”
Joshua D. Poyer, United States v. Miggins: A Survey of
Anticipatory Search Warrants and the Need for Uniformity
Among the Circuits, 58 U Miami L Rev 701, 701 (2004) (foot-
notes omitted); see also Andrew M. Belt, Anticipatory Search
Warrants: State and Federal Applications and Their Future in
Maryland, 28 U Balt L Rev 337, 337-38 (1999) (“Anticipatory
warrants are used to seize contraband delivered by one of
three means: (1) a controlled delivery, where a police offi-
cer poses as a delivery person and transfers the contraband;
(2) an observed delivery, where customs officials intercept
the contraband and notify the police who observe the con-
traband as it is delivered; and (3) an uncontrolled delivery
where police receive a tip that contraband will be delivered,
but are unaware as to who will be making the delivery.”).2
2
A few cases addressed anticipatory warrants in the context of controlled
buys. See, e.g., People v. Sousa, 18 Cal App 4th 549, 559-60, 22 Cal Rptr 2d 264,
210 State v. Lee
Although generally accepted, some jurisdictions
conditioned anticipatory warrants upon certain predicates;
most common was the requirement of a governmental show-
ing of a “sure course.” As the Ninth Circuit explained, “[a]n
affidavit in support of an anticipatory search warrant must
show that the property sought is on a sure course to the
destination targeted for the search.” U.S. v. Ruddell, 71 F3d
331, 333 (9th Cir 1995); see also U.S. v. Ricciardelli, 998 F2d
8, 13 (1st Cir 1993) (“The sure course standard functions as
a proxy for the actual presence of the contraband at the locus
to be searched. It offers the magistrate a trustworthy assur-
ance that the contraband, though not yet on the site, will
almost certainly be located there at the time of the search,
thus fulfilling the requirement of future probable cause.”);
U.S. v. Dornhofer, 859 F2d 1195, 1198 (4th Cir 1988) (“[A]n
anticipatory warrant is permissible where the contraband
to be seized is on a sure course to its destination, as in the
mail.” (Internal citations and quotation marks omitted.)).
Not all state courts to consider the issue upheld
anticipatory warrants, however. Some concluded that the
warrants violated a particular state statute. See, e.g., State
v. Gillespie, 530 NW2d 446, 448 (Iowa 1995) (holding that
anticipatory warrants violated Iowa statute); People v.
Poirez, 904 P2d 880, 883 (Colo 1995) (holding that anticipa-
tory warrants violated Colorado statute). In fact, the devel-
opment of anticipatory warrants in the 1970s and 1980s
prompted an amendment to the Federal Rules of Criminal
Procedure (FRCrP) explicitly to avoid a potential federal
statutory problem. Prior to 1990, FRCrP 41 stated:
271 (1993) (upholding anticipatory warrant where “there was a clear showing
that [the defendant] would be involved in an illegal drug purchase, which would
take place in the immediate future”); Commonwealth v. Coleman, 574 Pa 261,
279, 830 A2d 554, 565 (2003) (upholding anticipatory warrant based on an affi-
davit showing that law enforcement “did not randomly target [the defendant’s]
residence for a controlled drug buy in the hope of generating probable cause, but
instead explained * * * the specific basis for their belief that drugs were being
sold from his particular residence”); see also U.S. v. Penney, 576 F3d 297, 313 (6th
Cir 2009) (“[A]lthough the triggering event did not explicitly require that con-
traband be delivered to [the defendant’s] residence, the issuing magistrate had
a substantial basis to conclude that the affidavit established a nexus between
on-going drug trafficking and [the defendant’s] residence, and that there was a
fair probability that evidence of drug trafficking would be found when the trig-
gering event took place.”).
Cite as 371 Or 200 (2023) 211
“A search warrant authorized by this rule may be issued
by a federal magistrate or a judge of a state court of record
within the district wherein the property or person sought
is located, upon request of a federal law enforcement officer
or an attorney for the government.”
(Emphasis added.)
The Supreme Court, with approval of Congress,
amended FRCrP 41 in 1990 to read:
“[A] search warrant authorized by this rule may be issued
(1) by a federal magistrate, or a state court of record within
the federal district, for a search of property or for a person
within the district * * *.”
FRCrP 41(a) (1990). The 1990 advisory committee note to
FRCrP 41(a) (1990) explains the reason for the amendment
as follows:
“Rule 41(a)(1) permits anticipatory warrants by omitting
the words ‘is located,’ which in the past required that in
all instances the object of the search had to be located
within the district at the time the warrant was issued.
Now a search for property or a person within the district,
or expected to be within the district, is valid if it otherwise
complies with the rule.”
FRCrP 41(a) Advisory Committee note to 1990 amendment.
In 2006, the United States Supreme Court took up
the issue of anticipatory warrants in Grubbs. There, the
defendant contacted a website he believed could provide him
a videotape containing child pornography. 547 US at 92.
That website was, in fact, operated by an undercover postal
inspector. Id. Federal officers arranged for the videotape
to be delivered to Grubbs, at his home, via United States
Postal Inspector delivery. Id. In anticipation of delivering
the contraband to Grubbs, agents applied to a magistrate
judge for a warrant. Their affidavit stated:
“ ‘Execution of this search warrant will not occur unless
and until the parcel has been received by a person(s) and
has been physically taken into the residence * * *. At that
time, and not before, this search warrant will be executed
by me and other United States Postal inspectors, with
212 State v. Lee
appropriate assistance from other law enforcement officers
in accordance with this warrant’s command.’ ”
Id. (alteration in original, internal citation omitted).
At the outset of the Court’s analysis, it defined
anticipatory warrants:
“An anticipatory warrant is ‘a warrant based upon an affi-
davit showing probable cause that at some future time (but
not presently) certain evidence of crime will be located at
a specified place.’ 2 W. LaFave, Search and Seizure § 3.7(c),
p. 398 (4th ed 2004). Most anticipatory warrants subject
their execution to some condition precedent other than the
mere passage of time—a so-called ‘triggering condition.’
* * * If the government were to execute an anticipatory war-
rant before the triggering condition occurred, there would
be no reason to believe the item described in the warrant
could be found at the searched location; by definition, the
triggering condition which establishes probable cause has
not yet been satisfied when the warrant is issued.”
Id. at 94.
The Court then explained that, for purposes of the
Fourth Amendment, “the probable-cause requirement looks
to whether evidence will be found when the search is con-
ducted.” Id. at 95 (emphasis in original). Accordingly, the
Court reasoned that, for the Fourth Amendment, all war-
rants are anticipatory in some degree: “Anticipatory war-
rants are, therefore, no different in principle from ordinary
warrants. They require the magistrate to determine (1) that
it is now probable that (2) contraband, evidence of a crime,
or a fugitive will be on the described premises (3) when the
warrant is executed.” Id. at 96 (emphases in original).
From that brief history we see that, as typically
employed, law enforcement officers seek anticipatory war-
rants when they cannot attest that all of the facts necessary
to establish probable cause presently exist, most often when
they cannot say that it is more likely than not that evidence
is currently at the location to be searched. With that his-
tory and understanding of anticipatory warrants in mind,
we now turn to the warrant at issue here and applicable
Oregon statutes.
Cite as 371 Or 200 (2023) 213
THE WARRANT
The warrant in this case does not fit neatly into the
typical anticipatory warrant mold. Officer Davis’s applica-
tion for the warrant explicitly asked for an “Anticipatory
Warrant,” implying that he did not believe that he had prob-
able cause to search at the time of the application. The appli-
cation does not specify what particular aspect of probable
cause—criminality, evidence, location, or time—was absent
when Davis obtained the warrant, but the state acknowl-
edged to the trial court that the facts alleged in the applica-
tion were insufficient to establish probable cause to search:
“[A]t the point in time that it’s signed by the judge, is there
enough there without paying attention to what’s happened?
No. But then you have that triggering event, and so the
judge, you know, presumes, okay, if that is satisfied, is
there probable cause here? And the answer is yes in this
case. And so, you know, that’s the only difference in the
anticipatory warrant.”
At oral argument, we asked the state for confir-
mation that it was “not contending that there was probable
cause at the time the warrant issued to believe that drugs
would be found.” The state replied that “[t]here was probable
cause to believe that drugs would be found when the war-
rant was executed.” Thus, we do not understand the state to
argue that the warrant the officer sought was not anticipa-
tory. Indeed, since trial, and through appeal, the state has
consistently labeled the warrant “anticipatory” and cited
Grubbs as authority for its constitutionality. We understand
the state to be acknowledging that, at the time of warrant
application, the officer could only aver that at some future
time—after the triggering event—but not presently, it would
be more likely than not that evidence of a crime would be
found at the residence. With that understanding, we turn to
Oregon statute.
In doing so we note that although defendant based
his motion to suppress in the trial court, in part, on ORS
133.545, and although that statute was cited both to the
Court of Appeals and repeatedly in briefing to this court,
neither it, nor other relevant statutes, have been the focus
of the parties’ arguments. Instead, the parties have focused
214 State v. Lee
on the Oregon Constitution, and defendant has argued that
Article I, section 9, is “reflected in” ORS 133.545(6). We
think it prudent, however, as is our usual practice, to begin
with the applicable statutes. “The need to face a constitu-
tional issue arises, if at all, only after the court determines
what ordinary laws authorize, require or forbid.” Burt v.
Blumenauer, 299 Or 55, 70, 699 P2d 168 (1985). “[I]f stat-
utory sources of law provide a complete answer to [a] legal
question that a case presents, we ordinarily decide the case
on that basis, rather than turning to constitutional provi-
sions.” Rico-Villalobos v. Giusto, 339 Or 197, 205, 118 P3d
246 (2005). “This court follows that decisional principle even
if the parties attempt to force the court to decide a constitu-
tional question by confining their arguments to matters of
constitutional law, rather than addressing arguably disposi-
tive aspects of subconstitutional law.” State v. Barrett, 350 Or
390, 398, 255 P3d 472 (2011); see also Dept. of Rev. v. River’s
Edge Investments, LLC, 359 Or 822, 836, 377 P3d 540 (2016)
(concluding the same and citing Wallace P. Carson, Jr., “Last
Things Last”: A Methodological Approach to Legal Argument
in State Courts, 19 Willamette L Rev 641, 643-45, 654 (1983)
(advocating for a legal analysis in sequence beginning with
administrative rules, then statutes, then state constitution,
then federal law, then federal constitution)).
OREGON STATUTORY WARRANT
REQUIREMENTS
In Oregon, warrants and warrant applications
are governed not only by constitutional provisions, but by
statute as well. ORS 133.525 to 133.615 govern, in part,
warrant application and issuance. The question presented
is whether the legislature intended to permit, within that
statutory scheme, the anticipatory warrant at issue in this
case. In considering the applicable statutes, we consider the
text, context, and legislative history to discern the legisla-
ture’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009).
ORS 133.545(1) provides that only a judge may
“issue[ ]” a warrant.3 ORS 133.545(5) and (6) discuss the
3
In this context we use the terms magistrate and judge synonymously.
Cite as 371 Or 200 (2023) 215
requirements for warrant applications. ORS 133.545(8)(b)
discusses procedures for transmission when a court “issues
a warrant upon an application.” And ORS 133.545(1) makes
clear that issuance of a warrant is distinct from execution
of a warrant. See, e.g., State v. McCarthy, 369 Or 129, 151,
501 P3d 478 (2021) (“Thus, the court envisioned a process in
which officers would call magistrates who would determine
whether the officers had probable cause to search and, if the
officers did, the magistrates would immediately issue elec-
tronic warrants.”). A warrant “issues” no later than when a
magistrate signs and transmits it to law enforcement.
ORS 133.555(2) conditions the issuance of a war-
rant upon the presentation of an application that complies
with ORS 133.545. If that condition is met, and if the judge
concludes that “there is probable cause to believe that the
search will discover things specified in the application and
subject to seizure under ORS 133.535,” then a warrant is
statutorily authorized. ORS 133.555(2). The use of the future
tense here reflects a recognition that the search itself—the
execution of the warrant—will always occur after the judge
issues the warrant.
ORS 133.545(6) defines, in part, the requirements
for a search warrant application:
“The application shall consist of a proposed warrant
in conformance with ORS 133.565 [specifying contents of
search warrant], and shall be supported by one or more
affidavits particularly setting forth the facts and circum-
stances tending to show that the objects of the search are
in the places, or in the possession of the individuals, to be
searched.”
(Emphasis added.) As is apparent on its face, ORS 133.545(6)
speaks to the present, not the future. “Are,” as in the term
“are in,” is the present tense second-person singular, or pres-
ent tense plural, of the verb “to be.” Webster’s Third New Int’l
Dictionary 115 (unabridged ed 2002).
Similarly, ORS 133.565(2) specifies the five things
that a warrant “shall state, or describe with particularity”:
(1) the identity of the judge issuing the warrant, (2) the date
the warrant was issued; (3) the name of the person to be
searched or the location and designation of the premises or
216 State v. Lee
places to be searched; (4) the things constituting the object of
the search and authorized to be seized; and (5) the period of
time within which the warrant is to be returned. And ORS
133.575(1) provides that a search warrant “may be executed
only within the period and at the times authorized by the
warrant and only by a police officer.” Read together, those
statutes demonstrate that the legislature was very clear and
specific about the need for averments to demonstrate the exis-
tence of probable cause to search at the time of issuance, and,
particularly, that the averments establish that the objects of
the search are in the location to be searched at that time.
The legislative history does not persuade us that
the legislature had a different intent. ORS 133.545 was
originally enacted in 1973 as part of the codification of
criminal law in Oregon and was drafted by the Criminal
Law Revision Commission. Or Laws 1973, ch 836, § 83;
Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Procedure Code, Final Draft and
Report § 133, 71-73 (Nov 1972). The commission placed sec-
tion 133, “Issuance of search warrant” (what became ORS
133.545), and the relevant wording—that the objects to be
searched “are in” the places or in the possession of the indi-
viduals to be searched—(now codified in ORS 133.545(6))
in Article 5 of its report. Commentary § 33 at 69, 71-73.
Included with the draft statutory language is commentary
from the commission. This court has previously stated that
“[l]egislative history includes the commentary to the Oregon
Criminal Procedure Code.” State ex rel Turner v. Frankel,
322 Or 363, 374, 908 P2d 293 (1995). The Commentary does
not directly address the choice of the present tense “are,”
but it does state that it “requires that affidavits be in hand
at the inception of the proceedings, so as to discourage friv-
olous or speculative applications.” Commentary § 133 at 72
(emphasis added).
The Commentary might be viewed as suggesting
that the legislature considered the possibility of magistrates
authorizing searches for evidence that is not yet present but
that will be present at a future time:
“(3) Facts and circumstances must be asserted to sup-
port the conclusion that criminal conduct is being engaged
Cite as 371 Or 200 (2023) 217
in or that evidence of crime is contained in the premises at
or very near the time of the affidavit. * * *
“It is believed that the language in subsection (3) as to
content of the application is approximately and necessar-
ily general enough to reflect the present or future stance
of the U. S. Supreme Court. This is clearly an area where
there must be considerable play in the joints to allow con-
stitutional interpretation by the courts without freezing into
Oregon law a particular holding or view.”
Id. at 73 (emphases added).
The first emphasized phrase—at or very near the
time of the affidavit—could be read as indicative of an
intent to allow warrants to search for evidence that is not
yet at the location to be searched at the time of the affida-
vit. However, that language may also merely be reflective of
the principle of staleness in probable cause—the notion that
time may render evidence unlikely to remain at a location.
See, e.g., State v. Henderson, 341 Or 219, 226, 142 P3d 58
(2006) (“It obviously is true that, in some cases, the passage
of time may render formerly sound information stale.”).
The second emphasized phrase—leaving “consider-
able play in the joints to allow constitutional interpretation
by the courts without freezing into Oregon law a particular
holding or view”—could be read as reflecting a legislative
intent to allow future case law developments to inform the
meaning of the statute, such that warrant applications that
met constitutional requirements as determined by that case
law would also satisfy the requirements of the statute. In
context, however, we think the better reading is one that
permits “play in the joints” as to whether the facts and cir-
cumstances set out are sufficient to establish that there is
probable cause to search in compliance with ORS 133.555
and ORS 133.545(6).
Ultimately, the plain text of ORS 133.545(6) is
dispositive. The essence of an anticipatory warrant, as
we understand the parties to use that term in light of the
case law discussed above, conflicts with the plain text of
ORS 133.545(6), which requires an affidavit to aver facts
and circumstances tending to show that objects of the
search “are in the places” to be searched at the time of the
218 State v. Lee
warrant’s issuance, not at the time of the warrant’s execu-
tion. (Emphasis added.) That wording does not authorize a
warrant application that tends to show that objects of the
search will be in the place to be searched. The language
“are in” poses the same tension with anticipatory warrants
as the language “is located” posed for purposes of FRCrP
41(a) prior to 1990. However, recognizing that tension, the
Supreme Court, with the approval of Congress, amended
the federal rules. The Oregon Legislature has not amended
ORS 133.545(6).
Where “the text of a statute is truly capable of only
one meaning, no weight can be given to legislative history
that suggests—or even confirms—that legislators intended
something different.” Gaines, 346 Or at 173. To interpret the
statute to permit anticipatory warrants would require us to
rewrite the statute to say that “objects of the search are in,
[or will be in,] the places, or in the possession of the individ-
uals, to be searched.” In construing a statute, we will not
“insert what has been omitted.” ORS 174.010. Accordingly,
we conclude that Oregon statute does not permit anticipa-
tory warrants and does not permit the warrant issued in
this case.
However, not all statutory violations may result in
the exclusion of evidence. ORS 136.432 provides that a court
may not exclude “relevant and otherwise admissible evidence
in a criminal action on the grounds that it was obtained
in violation of any statutory provision.” (Emphasis added.)
In State v. Thompson-Seed, 162 Or App 483, 986 P2d 732(1999), former Justice (then Judge) Landau explored, in con-
siderable depth, the history of ORS 136.432 and concluded
that that statute “is construed only to constrain the courts
from creating new rules of exclusion and not to repeal exist-
ing statutory rules of exclusion.” Id. at 491. That reasoning
is sound. ORS 136.432 itself provides that evidence must
be “otherwise admissible,” clearly implying the potential
for statutory exclusion. ORS 136.432 does not prevent the
legislature itself from providing for evidentiary exclusion
based on a statutory violation. Rather, the legislature is free
to provide avenues for exclusion, either explicitly or implic-
itly, for some statutes, and not for others. See, e.g., State v.
Cite as 371 Or 200 (2023) 219
Powell, 352 Or 210, 227, 282 P3d 845 (2012) (concluding that
“the statute itself requires exclusion”).
ORS 133.673 explicitly provides that the statutory
requirements for warrants contained in ORS 133.545(6) are
enforceable via a motion to suppress:
“Objections to use in evidence of things seized in viola-
tion 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.”
“Motions to suppress evidence are provided for by statute.
Statutory grounds for a suppression include noncompliance
with ORS 133.545 and 133.555.” State v. Russell, 293 Or
469, 474, 650 P2d 79 (1982) (footnote omitted).4 The legis-
lature, having provided a statutory remedy of evidentiary
exclusion, has rendered this matter capable of resolution at
a subconstitutional level. The warrant in this case, and its
application, failed to comply with Oregon statutory require-
ments, and the evidence obtained pursuant to that warrant
must be excluded.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and this case
is remanded to the circuit court for further proceedings.
4
We acknowledge that, three months after Russell, in State v. Brock, 294 Or
15, 22, 653 P2d 543 (1982), we declined to suppress evidence obtained in violation
of a nighttime warrant execution under ORS 133.545. In that case, however, we
did not consider ORS 133.673, and we are not called upon to reconcile any poten-
tial resulting inconsistencies here.