State v. Cochrane

Court of Appeals of Oregon

State v. Cochrane

634 P.2d 273, 54 Or. App. 118, 1981 Ore. App. LEXIS 3341

CourtCourt of Appeals of Oregon

DecidedOctober 5, 1981

DocketNo. 37949 CA A20630

StatusPublished

This text of 634 P.2d 273 (State v. Cochrane) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Cochrane, 634 P.2d 273, 54 Or. App. 118, 1981 Ore. App. LEXIS 3341 (Or. Ct. App. 1981).

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Opinion

GILLETTE, P. J.

This is a criminal case in which defendant was convicted of Theft in the Second Degree. On appeal, his sole assignment of error is the denial of his motion to suppress evidence seized from his house pursuant to a warrant which was executed after 10 p.m. but which contained no endorsement authorizing nighttime service. We affirm.

Defendant claims that the service of a warrant without a nighttime service endorsement in violation of ORS lSSNeSCS)¹ requires suppression of any evidence seized pursuant to that warrant. This court, however, has recently held that violation of ORS 133.565(3) does not justify suppression of evidence. State v. Brock, 53 Or App 785, 633 P2d 805 (1981).

Although two members of this panel dissented in Brock, the facts here are such that even the dissenters in Brock would agree suppression is not warranted. In fact, defendant in this case (who was himself a policeman) was called to the scene of the search by radio and fully apprised of the search and its purpose before the house was entered. As suggested in the dissent in Brock, "* * * [t]he statutory, rather than constitutional, nature of the duty imposed * * * leaves the courts free to limit the instances in which the sanction of suppression is imposed to those in which the full range of statutory purposes have been violated.” 53 Or App at 807. No underlying purposes were violated here.

Affirmed.

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GILLETTE, P. J.

This is a criminal case in which defendant was convicted of Theft in the Second Degree. On appeal, his sole assignment of error is the denial of his motion to suppress evidence seized from his house pursuant to a warrant which was executed after 10 p.m. but which contained no endorsement authorizing nighttime service. We affirm.

Defendant claims that the service of a warrant without a nighttime service endorsement in violation of ORS lSSNeSCS)¹ requires suppression of any evidence seized pursuant to that warrant. This court, however, has recently held that violation of ORS 133.565(3) does not justify suppression of evidence. State v. Brock, 53 Or App 785, 633 P2d 805 (1981).

Although two members of this panel dissented in Brock, the facts here are such that even the dissenters in Brock would agree suppression is not warranted. In fact, defendant in this case (who was himself a policeman) was called to the scene of the search by radio and fully apprised of the search and its purpose before the house was entered. As suggested in the dissent in Brock, "* * * [t]he statutory, rather than constitutional, nature of the duty imposed * * * leaves the courts free to limit the instances in which the sanction of suppression is imposed to those in which the full range of statutory purposes have been violated.” 53 Or App at 807. No underlying purposes were violated here.

Affirmed.

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Bluebook (online)

634 P.2d 273, 54 Or. App. 118, 1981 Ore. App. LEXIS 3341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cochrane-orctapp-1981.

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