State v. Effinger

Court of Appeals of Oregon

State v. Effinger

780 P.2d 768, 98 Or. App. 651, 1989 Ore. App. LEXIS 1473

CourtCourt of Appeals of Oregon

DecidedOctober 11, 1989

Docket87-10-0384 CR, 87-10-0386 CR, 87-10-0387 CR; CA A50369 (Control), A50423

StatusPublished

Cited by1 cases

This text of 780 P.2d 768 (State v. Effinger) 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. Effinger, 780 P.2d 768, 98 Or. App. 651, 1989 Ore. App. LEXIS 1473 (Or. Ct. App. 1989).

Pincite

Opinion

ROSSMAN, J.

Defendant appeals his convictions for manufacture and possession of a controlled substance and delivery of a controlled substance to a minor. He assigns as error, inter alia, the denial of his motion to suppress.¹ We reverse and remand.

On September 23, 1987, a Grant County Sheriff obtained a warrant to search defendant’s ranch. The warrant was signed by Brainard, a purported justice of the peace pro tempore. As a result of the evidence obtained in the search, defendant was charged with manufacture of a controlled substance, ORS 475.992, possession of a controlled substance, ORS 475.992, and delivery of a controlled substance to a minor. ORS 475.995. He was found guilty on all three charges. Defendant contends that the trial court erred in failing to suppress all evidence seized, because the search warrant was invalid. He argues that Brainard was without authority to issue the warrant, because her appointment as justice of the peace pro tempore had expired.

A county court has the authority to appoint a temporary justice of the peace under ORS 51.260(2):

“In the event of a temporary absence or other incapacity of a justice of the peace, the county court, if it deems it in the public interest, may appoint a person possessing the qualifications for election to such office to serve as justice of the peace pro tempore during such absence or incapacity but not for a period to exceed 60 days.” (Emphasis supplied.)

The Grant County Court appointed Brainard a justice of the peace pro tempore on April 15, 1987.² By statute, that appointment was valid for 60 days and expired on June 14, 1987. [654]*654Accordingly, on September 23, 1987, Brainard was not authorized to issue the search warrant.

In its effort to save the convictions, the state urges that we validate the warrant by recognizing Brainard as a de facto judge, that is, one who holds and exercises the office under color of lawful authority though having no authority in law or fact. Madden v. Crawford, 207 Or 76, 90, 295 P2d 174 (1956). However, the state refers to no facts that would give Brainard color of lawful authority. She was appointed pursuant to ORS 51.260(2), which expressly limited her appointment to 60 days.

Reversed and remanded for a new trial.

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ROSSMAN, J.

Defendant appeals his convictions for manufacture and possession of a controlled substance and delivery of a controlled substance to a minor. He assigns as error, inter alia, the denial of his motion to suppress.¹ We reverse and remand.

On September 23, 1987, a Grant County Sheriff obtained a warrant to search defendant’s ranch. The warrant was signed by Brainard, a purported justice of the peace pro tempore. As a result of the evidence obtained in the search, defendant was charged with manufacture of a controlled substance, ORS 475.992, possession of a controlled substance, ORS 475.992, and delivery of a controlled substance to a minor. ORS 475.995. He was found guilty on all three charges. Defendant contends that the trial court erred in failing to suppress all evidence seized, because the search warrant was invalid. He argues that Brainard was without authority to issue the warrant, because her appointment as justice of the peace pro tempore had expired.

A county court has the authority to appoint a temporary justice of the peace under ORS 51.260(2):

“In the event of a temporary absence or other incapacity of a justice of the peace, the county court, if it deems it in the public interest, may appoint a person possessing the qualifications for election to such office to serve as justice of the peace pro tempore during such absence or incapacity but not for a period to exceed 60 days.” (Emphasis supplied.)

The Grant County Court appointed Brainard a justice of the peace pro tempore on April 15, 1987.² By statute, that appointment was valid for 60 days and expired on June 14, 1987. [654]*654Accordingly, on September 23, 1987, Brainard was not authorized to issue the search warrant.

In its effort to save the convictions, the state urges that we validate the warrant by recognizing Brainard as a de facto judge, that is, one who holds and exercises the office under color of lawful authority though having no authority in law or fact. Madden v. Crawford, 207 Or 76, 90, 295 P2d 174 (1956). However, the state refers to no facts that would give Brainard color of lawful authority. She was appointed pursuant to ORS 51.260(2), which expressly limited her appointment to 60 days.

Reversed and remanded for a new trial.

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Bluebook (online)

780 P.2d 768, 98 Or. App. 651, 1989 Ore. App. LEXIS 1473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-effinger-orctapp-1989.

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