Siverson v. Olson
| Decision Date | 29 January 1935 |
| Citation | 149 Or. 323,40 P.2d 65 |
| Parties | SIVERSON v. OLSON et al. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Knute O. Siverson against Fred L. Olson and Ed Wolfe for damages because of allegedly wrongful issuance and service of search warrant. From a judgment of nonsuit, plaintiff appeals.
Judgment affirmed as to defendant Fred L. Olson and reversed as to defendant Ed Wolfe, and cause remanded.
Richard Deich and G. E. Hamaker, both of Portland, for appellant.
Francis T. Wade, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., and Allen H. McCurtain, of Portland, on the brief), for respondents.
On the 26th day of February, and for sometime prior thereto, the defendant Fred L. Olson was and still is the duly elected qualified, and acting judge of the district court of the state of Oregon for the county of Multnomah; and at all times mentioned herein the defendant Ed Wolfe was a duly appointed qualified, and acting sergeant of the department of state police of the state of Oregon.
On said 26th day of February, 1932, the said defendant Ed Wolfe appeared before said defendant Fred L. Olson and subscribed and made oath to the following affidavit:
(Name of affiant and jurat omitted.)
On said 26th day of February, 1932, said defendant Fred L. Olson, issued a search warrant commanding an immediate search of the premises described as 309 East Hancock street in Portland, Multnomah county, Oregon.
On said 26th day of February, 1932, in pursuance of said search warrant, which he then and there had in his possession, said defendant Ed Wolfe went to the residence upon the said premises, being numbered 309 East Hancock street in Portland, Multnomah county, Ore., and applied for admittance. The testimony introduced in behalf of plaintiff tends to prove that, upon being admitted, said defendant Wolfe made a search through the upper portion of said residence, which was rented and occupied by a Mr. Porter and his mother, and said defendant also went into the basement and passed through the rooms on the first floor. Failing to find any evidence of intoxicating liquor, said defendant concluded that there was none being stored in said residence and abandoned the search of the same; but one of the other officers, who accompanied said defendant, discovered in the garage upon said premises 31 gallon glass containers which were destroyed. Said garage was used by one William Bletch.
Plaintiff insists that defendant Olson had no jurisdiction to issue the search warrant in suit, because there had not been filed with said judge or the clerk of his court any affidavit showing probable cause upon which to base such a warrant.
Mr. George Hoyt, clerk of said district court, being called as a witness in behalf of plaintiff, produced the original affidavit, above set out, and the said search warrant, together with the court record showing that the warrant was issued on February 26, 1932, and was filed together with the officer's return, and the affidavit therefor, in the office of the clerk of said court on February 29, 1932.
Plaintiff calls attention to section 28-1125, Oregon Code 1930, making it the duty of the clerk of the district court to file, keep, and preserve the records, books, papers, and all other property pertaining to the court of which he is clerk, and argues that the judge of such a court, while acting as a magistrate in issuing a search warrant, is therefore required first to file the affidavit for such search warrant with the clerk of said district court before such magistrate may have any authority or jurisdiction to issue a search warrant.
The rule is stated in Corpus Juris on the subject "Searches and Seizures," volume 56, p. 1228, § 135. There, however, the authorities cited are from jurisdictions where the statutes provide that the affidavit shall be filed upon which a search warrant is issued.
There is no such statutory provision in Oregon. A magistrate, authorized to issue a warrant of arrest, has authority to issue a search warrant. Section 13-2501, Oregon Code 1930. The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. Section 13-2504, Id.
After the search has been made, the magistrate must annex together the depositions, the search warrant and return, and the inventory of the property taken, and return them to the next court of the county having jurisdiction of the crime in respect to which the search warrant was issued, at or before the 1st day of the term thereof. Section 13-2515, Id.
As stated by Mr. Justice Henry J. Bean in State v. Quartier, 114 Or. 657, 667, 236 P. 746, 749: "It is clear that the Legislature never intended that the adverse party should have notice of the taking of such an affidavit or 'deposition,' and the framer of the law must have used the words 'affidavit' and 'deposition' interchangeably."
Applying this construction to the section last above cited, (section 13-2515), it is clear that the affidavit (or "deposition") upon which a search warrant issued must be filed with the court of the...
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State v. Trax
...Id. at 345, 768 P.2d 913. The court went on to summarize Blackburn/Barber, described above, as well as the case of Siverson v. Olson, 149 Or. 323, 40 P.2d 65 (1935), discussed below, and concluded that "a warrant for the search of certain premises applies only to those premises and that if,......
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State v. Trax
...the Court of Appeals majority generally agreed with defendants, specifically relying upon this court's decisions in Siverson v. Olson, 149 Or. 323, 40 P.2d 65 (1935), Blackburn/Barber, 266 Or. 28, 511 P.2d 381, and State v. Devine, 307 Or. 341, 768 P.2d 913 Defendants are correct that a des......
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Brown v. State
...524; Herrion v. State, 1944, 79 Okl.Cr. 48, 150 P.2d 865; Linthicum v. State, 1929, 66 Okl.Cr. 327, 92 P.2d 381; Siverson v. Olson et al., 1937, 149 Or. 323, 40 P.2d 65; Cornelius, Search and Seizure, Description in Warrant, § 126 et seq., p. 338. This court has long been dedicated to the r......
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State v. Cortman
...the name of the occupant whose rooms were to be searched, and they offer the defendant no support. See, e.g., Siverson v. Olson, 149 Or. 323, 40 P.2d 65 (1935), and cases cited in the Annotation, 11 A.L.R.3d 1330, 1333-1334 (1967). In Smith v. McDuffee, 72 Or. 276, 283--284, 142 P. 558, 560......