Chapter 385 Oregon Laws 2001

AN ACT

SB 654

Relating to interception of communications; creating new provisions; amending ORS 41.910, 133.721, 133.724, 133.726, 133.736, 165.540, 165.542 and 165.671; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 133.721 is amended to read:

133.721. As used in ORS 41.910, 133.724, 133.729 to 133.739 and this section, unless the context requires otherwise:

(1) “Aggrieved person” means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or 133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful.

(2) “Contents,” when used with respect to any wire, electronic or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.

(3) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a radio, electromagnetic, photoelectronic or photo-optical system, or transmitted in part by wire, but does not include:

(a) Any oral communication or any communication which is completely by wire; or

(b) Any communication made through a tone-only paging device.

(4) “Electronic, mechanical or other device” means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof which is furnished to the subscriber or user by a telecommunications carrier in the ordinary course of its business and which is being used by the subscriber or user in the ordinary course of its business or being used by a telecommunications carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of official duties; or

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(5) “Intercept” means the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

(6) “Investigative or law enforcement officer” means an officer or other person employed by a county sheriff or municipal police department, the Oregon State Police, Attorney General, a district attorney or the Department of Corrections, and officers or other persons employed by law enforcement agencies of other states or the federal government, to investigate or enforce the law.

(7) “Oral communication” means:

(a) Any oral communication, other than a wire or electronic communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation; or

(b) An utterance by a person who is participating in a wire or electronic communication, if the utterance is audible to another person who, at the time the wire or electronic communication occurs, is in the immediate presence of the person participating in the communication.

(8) “Telecommunications carrier” means:

(a) A telecommunications utility as defined in ORS 759.005; or

(b) A cooperative corporation organized under ORS chapter 62 that provides telecommunications services.

(9) “Telecommunications service” has the meaning given that term in ORS 759.005.

(10) “Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, whether furnished or operated by a public utility or privately owned or leased.

SECTION 2. ORS 133.726 is amended to read:

133.726. (1) Notwithstanding ORS 133.724, under the circumstances described in this section, a law enforcement officer is authorized to intercept an oral communication to which the officer or someone under the direct supervision of the officer is a party, without obtaining an order for the interception of a wire, electronic or oral communication under ORS 133.724.

(2) For purposes of this section and ORS 133.736, a person is a party to an oral communication if the oral communication is made in the person’s immediate presence and is audible to the person regardless of whether the communication is specifically directed to the person.

[(1)] (3) An ex parte order for [the obtaining of any conversation] intercepting an oral communication in any county of this state [under ORS 165.540 (5)(a)] under this section may be issued by any judge as defined in ORS 133.525 upon written application made upon oath or affirmation of the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought or upon the oath or affirmation of any peace officer as defined in ORS 133.005. The application shall include:

(a) The name of the applicant and the applicant’s authority to make the application;

(b) A statement demonstrating that there is [reasonable] probable cause to believe that a person whose [conversation] oral communication is to be [obtained] intercepted is engaged in committing, [or] has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007, and that [the obtaining of the conversation] intercepting the oral communication will yield evidence thereof; and

(c) The identity of the person, if known, suspected of committing the crime and whose [conversation] oral communication is to be [obtained] intercepted.

[(2)] (4) The judge may require the applicant to furnish further testimony or documentary evidence in support of the application.

[(3)] (5) Upon examination of the application and evidence, the judge may enter an ex parte order, as requested or as modified, authorizing or approving [obtaining of conversations] the interception of an oral communication within the state if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is [reasonable] probable cause to believe that a person is engaged in committing, [or] has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007; and

(b) There is [reasonable] probable cause to believe that [conversations] the oral communication to be obtained will contain evidence concerning that crime.

[(4)] (6) An order authorizing or approving the [obtaining of conversations under ORS 165.540 (5)(a) shall] interception of an oral communication under this section must specify:

(a) The identity of the person, if known, whose [conversation] oral communication is to be [obtained] intercepted;

(b) A statement [of] identifying the particular crime to which the [conversation] oral communication is expected to relate;

(c) The agency authorized under the order to [obtain the conversation] intercept the oral communication;

(d) The name and office of the applicant and the signature and title of the issuing judge; [and]

(e) A period of time after which the order shall expire[.]; and

(f) A statement that the order authorizes only the interception of an oral communication to which a law enforcement officer or someone under the direct supervision of a law enforcement officer is a party.

(7) An order under ORS 133.724 or this section is not required when a law enforcement officer intercepts an oral communication to which the officer or someone under the direct supervision of the officer is a party if the oral communication is made by a person whom the officer has probable cause to believe has committed, is engaged in committing or is about to commit:

(a) A crime punishable as a felony under ORS 475.992 or 475.995 or as a misdemeanor under ORS 167.007; or

(b) Any other crime punishable as a felony if the circumstances at the time the oral communication is intercepted are of such exigency that it would be unreasonable to obtain a court order under ORS 133.724 or this section.

(8) A law enforcement officer who intercepts an oral communication pursuant to this section may not intentionally fail to record and preserve the oral communication in its entirety. A law enforcement officer, or a person under the direct supervision of the officer, who is authorized under this section to intercept an oral communication is not required to exclude from the interception an oral communication made by a person for whom probable cause does not exist if the officer or person under the officer’s direct supervision is a party to the oral communication.

(9) A law enforcement officer may not divulge the contents of an oral communication intercepted under this section before a preliminary hearing or trial in which an oral communication is going to be introduced as evidence against a person except:

(a) To a superior officer or other official with whom the law enforcement officer is cooperating in the enforcement of laws creating felonies;

(b) To a magistrate;

(c) In a presentation to a federal or state grand jury; or

(d) In compliance with a court order.

(10) A law enforcement officer may intercept an oral communication under this section only when acting within the scope of the officer’s employment and as a part of assigned duties.

(11) As used in this section, “law enforcement officer” means an officer employed by the United States, this state or a municipal government within this state, or a political subdivision, agency, department or bureau of those governments, to enforce criminal laws.

(12) Violation of subsection (9) of this section is a Class A misdemeanor.

SECTION 3. ORS 133.736 is amended to read:

133.736. (1) Any aggrieved person, as defined in ORS 133.721, in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the state, or a political subdivision thereof, may move to suppress [under ORS 41.910] recordings of any [conversation obtained under ORS 165.540 (5)(a), or the testimony of any individual not a party thereto regarding any conversation obtained under ORS 165.540 (5)(a)] oral communication intercepted in violation of ORS 133.726 or testimony or other evidence derived solely from the unlawful interception.

(2) Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the judge, upon the filing of such motion by the aggrieved person, may in the judge’s discretion make available to the aggrieved person or the person’s counsel for inspection such portions of the intercepted communications or evidence derived therefrom as the judge determines to be in the interests of justice.

(3) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion to suppress under subsection (1) of this section.

[(4) As used in this section, “conversation” has the meaning provided in ORS 165.535.]

SECTION 4. ORS 165.540 is amended to read:

165.540. (1) Except as otherwise provided in ORS 133.724 or 133.726 or subsections (2) to (7) of this section, no person shall:

(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which such person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.

(b) Tamper with the wires, connections, boxes, fuses, circuits, lines or any other equipment or facilities of a telecommunication or radio communication company over which messages are transmitted, with the intent to obtain unlawfully the contents of a telecommunication or radio communication to which such person is not a participant.

(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if all participants in the conversation are not specifically informed that their conversation is being obtained.

(d) Obtain the whole or any part of a conversation, telecommunication or radio communication from any person, while knowing or having good reason to believe that such conversation, telecommunication or radio communication was initially obtained in a manner prohibited by this section.

(e) Use or attempt to use, or divulge to others any conversation, telecommunication or radio communication obtained by any means prohibited by this section.

(2)(a) The prohibitions in subsection (1)(a), (b) and (c) of this section shall not apply to officers, employees or agents of a telecommunication or radio communication company who perform the acts prohibited by subsection (1)(a), (b) and (c) of this section for the purpose of construction, maintenance or conducting of their telecommunication or radio communication service, facilities or equipment; nor shall such prohibitions apply to public officials in charge of and at jails, police premises, sheriffs’ offices, Department of Corrections institutions and other penal or correctional institutions, except as to communications or conversations between an attorney and the client of the attorney.

(b) Officers, employees or agents of a telecommunication or radio communication company who obtain information under paragraph (a) of this subsection shall not use or attempt to use, or divulge to others such information except for the purpose of construction, maintenance, or conducting of their telecommunication or radio communication service, facilities or equipment.

(3) The prohibitions in subsection (1)(a), (b) or (c) of this section shall not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.

(4) The prohibitions in subsection (1)(a) of this section do not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public.

[(5)(a) The prohibitions in subsection (1)(c) of this section do not apply:]

[(A) When a law enforcement officer obtains a conversation between the officer or someone under the officer’s direct supervision pursuant to a court order under ORS 133.726, providing the person who obtains or records the conversation does not intentionally fail to record and preserve the conversation in its entirety.]

[(B) When a law enforcement officer obtains a conversation between the officer, or someone under the direct supervision of the officer, and a person who the officer has probable cause to believe has committed, is engaged in committing or is about to commit a crime punishable as a felony under ORS 475.992 or 475.995 or the circumstances at the time the conversation is obtained are of such exigency that it would be unreasonable to obtain the court order under ORS 133.726, providing the person who obtains or records the conversation does not intentionally fail to record and preserve the conversation in its entirety.]

[(b) Except to a superior officer or other official with whom the officer is cooperating in the enforcement of felony laws, or to a magistrate, or in a presentation to a federal or state grand jury, the conversation obtained under paragraph (a) of this subsection shall not, without a court order, be divulged to others before the preliminary hearing or trial in which the conversation is introduced as evidence against the suspected person.]

[(c) As used in this subsection, “law enforcement officer” means an officer employed by the United States, this state or a municipal government, or a political subdivision, agency, department or bureau of those governments, to enforce criminal laws. A law enforcement officer may obtain a conversation under paragraph (a) of this subsection only when acting within the scope of this employment and as a part of assigned duties.]

[(6)] (5) The provisions in subsection (1)(c) of this section do not apply to a person who records a conversation during a felony that endangers human life.

[(7)] (6) The prohibition in subsection (1)(c) of this section shall not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings:

(a) Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallys and sporting or other events;

(b) Regularly scheduled classes or similar educational activities in public or private institutions; or

(c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.

[(8)] (7) The prohibitions in subsection (1)(a), (c), (d) and (e) of this section do not apply to any:

(a) Radio communication which is transmitted by a station operating on an authorized frequency within the amateur or citizens bands; or

(b) Person who intercepts a radio communication which is transmitted by any governmental, law enforcement, civil defense or public safety communications system, including police and fire, readily accessible to the general public provided that the interception is not for purposes of illegal activity.

[(9)] (8) Violation of subsection (1) or (2)(b) of this section[, subsection (2)(b) or subsection (5)(b) or (c) of this section] is a Class A misdemeanor.

SECTION 5. ORS 41.910 is amended to read:

41.910. [(1)] Evidence of the contents of any wire or oral communication intercepted:

[(a)] (1) In violation of ORS 165.540 shall not be admissible in any court of this state, except as evidence of unlawful interception.

[(b)] (2) Under ORS 165.540 (2)(a) shall not be admissible in any court of this state unless:

[(A)] (a) The communication was intercepted by a public official in charge of and at a jail, police premises, sheriff’s office, Department of Corrections institution or other penal or correctional institution; and

[(B)] (b) The participant in the communication, against whom the evidence is being offered, had actual notice that the communication was being monitored or recorded.

[(2) Evidence made inadmissible under this section due to noncompliance by a law enforcement officer with the conditions of ORS 165.540 (5)(a) shall only be inadmissible under this section pursuant to a motion to suppress under ORS 133.736.]

SECTION 6. ORS 133.724 is amended to read:

133.724. (1) An ex parte order for the interception of wire, electronic or oral communications may be issued by any circuit court judge upon written application made upon oath or affirmation of the individual who is the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought. The application shall include:

(a) The name of the district attorney or the deputy district attorney making the application and the authority of the district attorney or the deputy district attorney to make the application;

(b) The identity of the investigative or law enforcement officer making the application and the officer authorizing the application;

(c) A statement demonstrating that there is probable cause to believe that an individual is committing, has committed or is about to commit, a particular felony of murder, kidnapping, arson, robbery, bribery, extortion or other crime dangerous to life and punishable as a felony, or a crime punishable as a felony under ORS 475.992 or 475.995 or as a misdemeanor under ORS 167.007, or any conspiracy to commit any of the foregoing crimes;

(d) A statement of the details, if known, of the particular crime alleged under paragraph (c) of this subsection;

(e) A particular description of the nature and location of the facilities from which or the place where the wire, electronic or oral communication is to be intercepted, if known;

(f) A particular description of the type of wire, electronic or oral communication sought to be intercepted;

(g) The identity of the person, if known, suspected of committing the crime and whose wire, electronic or oral communications are to be intercepted;

(h) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or are likely to be too dangerous;

(i) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of wire, electronic or oral communication has been first obtained, a description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(j) A statement as to whether any prior application has been made to intercept wire, electronic or oral communications from the same person and, if such prior application exists, a statement of the current status of that application; and

(k) Where the application is for the extension of an existing order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

(2) The judge may require the applicant to furnish further testimony or documentary evidence in support of the application.

(3) Upon examination of such application and evidence the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications within the state if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause for belief that an individual is committing, has committed or is about to commit a particular crime described in subsection (1)(c) of this section;

(b) There is probable cause for belief that particular communications concerning that crime will be obtained through such interception;

(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or are likely to be too dangerous; and

(d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications to be intercepted are being used, or are about to be used, in connection with the commission of that crime are leased to, listed in the name of, or commonly used by the individual suspected.

(4) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify:

(a) The identity of the person, if known, whose communications are to be intercepted;

(b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(c) A particular description of the type of communication sought to be intercepted, and a statement of the particular crime to which it relates;

(d) The identity of the agency authorized to intercept the communications and of the person authorizing the application;

(e) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained; and

(f) The name of the applicant, date of issuance, and the signature and title of the issuing judge.

(5) No order entered pursuant to this section shall authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of authorization, nor in any event longer than 30 days. Extensions of any order may be granted, but only when application for an extension is made in accordance with subsection (1)(k) of this section and the court makes the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purpose for which it is granted and in no event for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception, and must terminate upon attainment of the authorized objective, or in any event in 30 days.

(6) Whenever an order authorizing interception is entered pursuant to this section, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.

SECTION 7. ORS 165.542 is amended to read:

165.542. (1) Within 30 days after the use of an electronic listening device under ORS 133.726 (7) or 165.540 (5)[(a)(B) or (6)], the law enforcement agency using the device shall report to the district attorney of the county in the agency’s jurisdiction:

(a) The number of uses of the device and duration of the interceptions made by the law enforcement agency;

(b) The offense investigated;

(c) The identity of the law enforcement agency intercepting the communication; and

(d) Whether the person wearing the device was a law enforcement officer or a person under the supervision of the officer and the number of persons in each category who wore the device.

(2) During January of each year, the district attorney of a county in which electronic listening devices were used under ORS133.726 (7) or 165.540 (5)[(a)(B) or (6)] shall report to the Department of Justice:

(a) The information required by subsection (1) of this section with respect to the use of electronic listening devices during the preceding calendar year; and

(b) The aggregate number of instances in which electronic listening devices have been used in the county under ORS 133.726 (7) or 165.540 (5)[(a)(B) and (6)] during the preceding calendar year.

(3) The law enforcement agency shall include as part of the case file any use of electronic listening devices under ORS 133.726 (7) or 165.540 (5)[(a)(B) and (6)].

(4) During April of each odd-numbered calendar year, the Department of Justice shall transmit to the Legislative Assembly a report including a summary of the information required by subsections (1) and (2) of this section.

(5) Failure to comply with the reporting requirements of this section shall not affect the admissibility of evidence.

SECTION 8. ORS 165.671 is amended to read:

165.671. A good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action brought under ORS 133.545, 133.575, 133.595, 133.617, 133.619, 133.721, 133.724, 133.726, 133.729, 133.731, 133.735, 133.737, 133.739, 165.540 and 165.657 to 165.673.

SECTION 9. Evidence of a conversation obtained by a law enforcement officer under ORS 165.540 (5) (1999 Edition) prior to the effective date of this 2001 Act is not inadmissible as evidence solely because of the officer’s failure to obtain an order under ORS 133.724.

SECTION 10. ORS 133.726 and 133.727 are added to and made a part of ORS 133.729 to 133.739.

SECTION 11. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 15, 2001

Filed in the office of Secretary of State June 15, 2001

Effective date June 15, 2001

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