State v. Ness

This is a companion case to State v. Brock, 294 Or 15, 653 P2d 543 (1982) (decided today). Defendant assigns as error the denial of his motion to suppress evidence seized during a nighttime search in execution of a search warrant which authorizes execution “at any time of the day or night.”

We held in Brock that indorsement of a search warrant for nighttime execution must be based upon a showing of special circumstances consistent with the policy of ORS 136.565(3). We held that the showing need not be in any special form, but must be evidence from the allegations before the issuing judge. In…