State v. Lee: Statutory Prohibition of Anticipatory Warrants Under ORS 133.545(6)

Introduction

In State v. Lee, 373 Or 555 (2025), the Supreme Court of Oregon considered whether Oregon’s statutory warrant regime allows “anticipatory warrants”—warrants that authorize a search only if certain future “triggering conditions” are met. The case arises from a controlled‐buy operation in Albany, Oregon, where law enforcement arranged for a confidential informant to purchase heroin from Aaron Christopher Lee’s co‐defendant at a Marion Street residence. Detectives secured a search warrant labeled “anticipatory,” conditioned on four triggering events tied to the controlled buy. When officers executed the buy, took the informant back under custody, found heroin on him and retrieved the buy money, they arrested the co‐defendant and executed the warrant. During the search they discovered heroin, methamphetamine, firearms, packaging material and stolen property. Lee was present and charged with multiple drug and weapons offenses. He moved to suppress all evidence obtained under the warrant on statutory and constitutional grounds.

Summary of the Judgment

The Supreme Court of Oregon unanimously reversed the Court of Appeals and the circuit court. The court held that Oregon statutes governing search warrants—specifically ORS 133.545(6) and ORS 133.555(2)—require that a warrant application and its supporting affidavit must establish that the objects of the search are in the place to be searched at the time the warrant issues. The anticipatory warrant obtained by Albany detectives failed that requirement because it sought authority to search only after a future-controlled‐buy event. Consequently, the warrant did not comply with ORS 133.545(6) (“facts and circumstances tending to show that the objects of the search are in the places…to be searched”) or ORS 133.555(2) (probable cause “to believe that the search will discover things specified in the application”). Under ORS 133.673(1), evidence seized in violation of those statutory provisions must be suppressed. The case was remanded for further proceedings without reaching Article I, section 9, of the Oregon Constitution.

Analysis

1. Precedents Cited

• United States ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir 1969)

  The first case to recognize a warrant issued in anticipation of delivery of contraband. Beal involved a seized package of marijuana delivered by mail. The Seventh Circuit upheld a post‐delivery search warrant on staleness grounds, noting officers had probable cause to believe the package would arrive 19 minutes after issuance. The panel did not interrogate whether the warrant was “anticipatory,” defining it instead as a timing issue related to package delivery and warrant execution.

• State v. Mier, 147 N.J. Super 17, 370 A.2d 515 (App. Div. 1977)

  First use of the term “anticipatory warrant” by a state court. The New Jersey court considered whether a warrant could issue before contraband arrived, under a mail‐interception scenario. It accepted such warrants subject to clear triggering events but also noted the absence of direct constitutional guidance at that time.

• United States v. Grubbs, 547 U.S. 90 (2006)

  The U.S. Supreme Court formally defined “anticipatory warrants” for Fourth Amendment purposes. Grubbs held that a magistrate may issue a warrant conditioned on a future event—“the triggering condition”—so long as the affidavit establishes probable cause that when the warrant is executed the evidence will be there. The Court concluded that anticipatory warrants do not differ in principle from ordinary warrants because every warrant contemplates a future search.

• Subsequent federal circuit authority

  Circuit courts developed the “sure course” standard: an affidavit must show that contraband is on a reliable or “sure” path to the target location. E.g., U.S. v. Ruddell, 71 F.3d 331 (9th Cir 1995); U.S. v. Ricciardelli, 998 F.2d 8 (1st Cir 1993); U.S. v. Dornhofer, 859 F.2d 1195 (4th Cir 1988).

2. Legal Reasoning

1. Statutory Text Controls. The court began with ORS 133.545(6) and ORS 133.555(2). ORS 133.545(6) requires that warrant applications be supported by affidavits “particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places…to be searched.” ORS 133.555(2) authorizes issuance only when “the basis of the record…establishes that there is probable cause to believe that the search will discover things specified.” The use of present‐tense “are in” emphasizes that the objects must already be in the target location at issuance.
2. Contrast with Federal Rules. The court noted that, prior to 1990, Federal Rule of Criminal Procedure 41 required similar present‐tense location statements (“is located”). Congress amended Rule 41 in 1990—omitting “is located”—to explicitly allow searches for property “expected to be within the district.” Oregon’s legislature has not taken similar action.
3. Legislative History and Commission Commentary. The 1972 Criminal Law Revision Commission commentary recognized the need for affidavits “in hand at the inception” to discourage speculative warrants. Although it acknowledged future constitutional interpretation “play in the joints,” the text itself—“are in the places”—remained dispositive.
4. Statutory Remedy for Noncompliance. ORS 133.673(1) authorizes suppression of evidence seized “in violation of any of the provisions of ORS 133.525 to 133.703.” Even though ORS 136.432 prevents courts from excluding evidence obtained in violation of “any statutory provision,” it does not displace statutes that explicitly require suppression—such as ORS 133.673(1).
5. Conclusion on Statutory Grounds. Because the anticipatory warrant at issue did not comply with ORS 133.545(6) or ORS 133.555(2), the warrant was invalid and the evidence must be suppressed. The court did not address constitutional questions under Article I, section 9.

3. Impact

• This decision clarifies that under Oregon’s statutory scheme, warrants must be supported by facts showing that evidence is already present at the place to be searched. Anticipatory warrants—common in federal practice and other jurisdictions—are not available unless the legislature amends ORS 133.545(6).
• Law enforcement in Oregon must ensure that affidavits establish present‐tense probable cause; they cannot rely solely on future “triggering events.” Controlled buys, mail interceptions, and undercover deliveries will require two steps: (1) execute the contingent event to generate present‐tense probable cause; (2) apply for and obtain a search warrant based on that event.
• The ruling may prompt legislative action if Oregon’s Legislature wishes to authorize anticipatory warrants under state law. Pending amendment, Oregon follows a stricter standard than the Fourth Amendment and federal rule amendments.
• Defense practitioners can now challenge warrants that condition execution on future events without present‐tense affidavits. Future appeals will rely on ORS 133.545(6) and ORS 133.673(1) to secure suppression.

Complex Concepts Simplified

• Anticipatory Warrant: A warrant that is issued before evidence is actually at the search location, conditioned on a “triggering event” (e.g., delivery of contraband) that makes it probable the evidence will be there.
• Probable Cause to Search: The legal standard requiring facts that show it is more likely than not that evidence of a crime is at a specific place at the time the warrant is issued.
• Present‐Tense Requirement: Oregon law uses “are in the places” to require proof that the evidence already resides in the location, as opposed to “will be in” at some future point.
• ORS 133.673(1) Suppression Remedy: A statutory motion allowing courts to exclude evidence obtained in violation of warrant statutes (ORS 133.525–133.703).

Conclusion

State v. Lee establishes a binding precedent that Oregon’s statutory warrant regime does not permit anticipatory warrants. The decision rests on the unambiguous present‐tense requirement in ORS 133.545(6) and the suppression remedy in ORS 133.673(1). Law enforcement must demonstrate present‐tense probable cause—that evidence is at the premises—before obtaining a warrant. Any expansion to anticipatory warrants must come from the legislature. This ruling significantly shapes investigative procedure, confirms the primacy of statutory text in warrant law, and underscores the careful balance between efficient law enforcement and constitutional‐statutory protections against unreasonable searches.