Malcolm Rivera
In Oregon, the law requires police officers to obtain a search warrant before conducting a search, unless there is a lawful exception. A search warrant is a judicial order granted by a judge to search a location and seize evidence of a crime. While a search warrant must usually be obtained, there are exceptions that allow for a warrantless search or seizure, such as exigent circumstances, abandoned property, incident to arrest, community caretaking, and emergency aid. During a search, police officers must respect the gender identity of the person being searched and not conduct demeaning or harassing searches. It is also the responsibility of the agency conducting the seizure to safeguard and protect the seized property. Any evidence obtained during an illegal search without proper legal backing is considered inadmissible in court.
| Characteristics | Values |
|---|---|
| Search warrant requirement | The United States and Oregon Constitutions require police to obtain a search warrant before conducting a search, unless there is a lawful exception. |
| Lawful exceptions | Abandoned/lost property, incident to arrest, community caretaking and emergency aid, consent, exigent circumstances, inventory, and open and/or plain view. |
| Abandoned property | Searching abandoned property does not require a warrant as it does not invade any privacy interest. Abandonment may occur when a person physically discards or verbally denies ownership of property. |
| Inventory searches | Members shall conduct inventory searches pursuant to Portland City Code Chapter 14C.10, Police Duties to Inventory Property. |
| Exigent circumstances | Exigent circumstances allow for a warrantless search or seizure when there is probable cause and police need to act swiftly to prevent danger to life, the destruction of evidence, or a suspect's escape. |
| Search without a warrant | A search without proper legal backing is considered illegal, and any evidence accrued is inadmissible in court. |
| Search with a warrant | A search warrant must be followed to the letter; officers must stay within the specific areas outlined in the warrant to remain legal. |
| Search beyond the warrant | Police may search beyond the limitations of a warrant to ensure the safety of all those involved in the search and seizure. |
| Frisk | Police officers are allowed to frisk individuals if they are reasonably suspicious that they are armed or in possession of illegal items. |
| Search incident to arrest | Officers may search individuals and their property incident to arrest if they believe evidence supporting the arrest may be found. |
| Protection of seized items | Agencies that seize property must take reasonable steps to safeguard and protect the items from loss, damage, and deterioration. |
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What You'll Learn
A search warrant is required
In the state of Oregon, a search warrant is required for a search and seizure to be considered lawful. The Fourth Amendment of the US Constitution protects citizens against unreasonable searches and seizures, and this is reflected in Oregon law. A search warrant is a judicial order granted by a judge, which allows law enforcement officials to search a location and seize evidence of a crime. The warrant must be followed to the letter, and any evidence accrued without a warrant is considered inadmissible in court.
There are, however, exceptions to the requirement for a search warrant. Lawful exceptions may include abandoned or lost property, incident to arrest, community caretaking and emergency aid, consent, exigent circumstances, inventory, and open and/or plain view. For example, police officers are allowed to frisk an individual if they are reasonably suspicious that they are armed or in possession of illegal items. They may also search a vehicle if it is believed that evidence supporting an arrest may be found. In the case of State v. Jones, it was found that a search warrant limited to items relating to a specific crime did not grant police the right to search for any evidence and seize anything they found.
In the case of State v. Scarborough, it was found that a search incident to arrest for driving while suspended could justify the removal of a box from the defendant's pocket, but without reason to believe the box contained evidence of the crime for which the defendant was arrested, opening the box and inspecting its contents was unlawful. In State v. Mickelson, it was found that probable cause, in this case, the discovery of a defendant's personal property in the same room with illegal narcotics, did not constitute probable cause for an officer to arrest and search the defendant.
It is important to note that when a search or seizure is conducted, members of the police force should, when safe and feasible, explain the reason for the search or seizure to the person being searched or seized.
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Lawful exceptions
In Oregon, police officers must generally obtain a warrant before conducting a search, but there are some exceptions that allow for a warrantless search or seizure. These exceptions include:
Abandoned/Lost Property
If property has been abandoned or lost, it can be searched without a warrant because the search does not invade any privacy interest. Abandonment occurs when a person physically discards or verbally denies ownership of property.
Incident to Arrest
Officers may conduct a search incident to an arrest, including searching a person's vehicle if it is believed that evidence supporting the arrest may be found. For example, if a person is arrested on suspicion of driving under the influence, police may search their vehicle for the substance in question.
Community Caretaking and Emergency Aid
Officers may conduct a search or seizure without a warrant in certain emergency situations, such as when there is a danger to life, the imminent destruction of evidence, or a suspect's escape.
Consent
Officers may conduct a search if they have the consent of the owner or occupant of the property being searched. However, landlords do not have the legal standing to grant officers access to a tenant's apartment without the tenant's consent, although they may grant access to common areas.
Exigent Circumstances
Exigent circumstances can justify a warrantless search or seizure when there is probable cause and a swift police response is necessary to prevent danger to life, the destruction of evidence, or a suspect's escape.
Inventory
Officers may conduct inventory searches of impounded vehicles or seized property to document and safeguard the contents.
Open and/or Plain View
If evidence or contraband is in plain view, officers may seize it without a warrant.
It is important to note that even in these lawful exception cases, police officers must still follow certain protocols during searches and seizures, such as explaining the reason for the search or seizure when safe and feasible, respecting gender identity, and not conducting demeaning or harassing searches.
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Probable cause
In the state of Oregon, the Fourth Amendment of the US Constitution applies, meaning that police officers must obtain a warrant before conducting a search, unless there is a lawful exception.
In other cases, probable cause is not sufficient for a search. For example, in State v. Scarborough, a negative record check did not constitute probable cause for an officer to search a defendant's purse, and the search could not be justified as an incident to arrest for failure to display an operator's license.
Exceptions to the Warrant Requirement
There are several exceptions to the warrant requirement, including exigent circumstances, where police need to act swiftly to prevent danger to life, the imminent destruction of evidence, or a suspect's escape. Other exceptions include abandoned or lost property, incident to arrest, community caretaking and emergency aid, consent, inventory, and open and/or plain view.
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Exigent circumstances
However, the determination of exigent circumstances is not always straightforward. In Oregon v. Ritz (2017), the Court of Appeals upheld the trial court's denial of the defendant's motion to suppress blood-alcohol evidence, which was obtained without a warrant. The state argued that the warrantless entry was justified because the natural dissipation of alcohol in the defendant's body constituted the destruction of evidence, establishing an exigent circumstance. However, the Oregon Supreme Court reversed this decision, stating that the state failed to establish that the officers reasonably believed they were faced with an exigency.
In another case, State v. Ellett (1978), the circumstances were deemed sufficiently exigent to justify a warrantless entry and arrest. The arresting officers entered a house believed to be occupied by a burglar within 10 to 15 minutes of the report of the burglary.
In 2022, the Oregon Supreme Court abandoned the per se exigency rule in the automobile exception, holding that warrantless seizures or searches must be based on actual exigent circumstances. This ruling affirmed that the State must prove that exigent circumstances existed at the time of the seizure or search to justify a warrantless action.
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Consent
In Oregon, the Fourth Amendment of the US Constitution and state laws protect individuals from unreasonable searches and seizures. Consent is a critical factor in determining the legality of a search or seizure. Here is some information about consent in the context of searches and seizures in Oregon:
The Fourth Amendment generally requires law enforcement officers to obtain a warrant before conducting a search. However, consent is a lawful exception to this warrant requirement. If an individual voluntarily consents to a search, law enforcement officers may conduct a search without a warrant. This consent must be clear, specific, and unequivocal, and it must be given without coercion. The person consenting must have the authority to do so, although officers are not expected to determine this authority and can rely on it unless the circumstances raise questions.
Scope of Consent
The scope of the consent given is essential. The search must not exceed the scope of the consent. For example, if an individual consents to a search of their home, law enforcement officers cannot use that consent to search their vehicle or person unless specifically included in the consent.
Right to Refuse and Revoke Consent
Individuals have the right to refuse consent to a search. They can also revoke their consent at any time during the search. Law enforcement officers must inform the individual of their right to refuse and revoke consent.
Documentation of Consent Searches
When conducting a consent search, law enforcement officers must document the search in a police report. This documentation includes the reasonable suspicion or probable cause for the search and the results of the search.
In emergency situations, such as rendering immediate aid or preventing the imminent destruction of evidence, law enforcement officers may conduct a warrantless search or seizure. However, officers cannot create these exigent circumstances themselves to avoid obtaining a warrant.
It's important to note that consenting to a search can affect an individual's rights in court, and they may choose to refuse consent if they believe it is in their best interest.
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Frequently asked questions
Yes, in most cases, police officers must apply for a warrant for a search to be considered lawful.
A search without proper legal backing is considered illegal, and any evidence accrued is inadmissible in court.
Probable cause is established when there is a justifiable belief that the property in question contains evidence of a crime.
Yes, lawful exceptions to the requirement for a search warrant include abandoned/lost property, incident to arrest, community caretaking and emergency aid, consent, exigent circumstances, inventory, and open and/or plain view.
Yes, officers may examine your vehicle if it is believed that evidence supporting an arrest may be found. For example, if you are suspected of driving under the influence, officers can search your vehicle for the substance in question.
