71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2605
A-Engrossed
Senate Bill 654
Ordered by the Senate April 23
Including Senate Amendments dated April 23
Sponsored by Senator MINNIS; Senators BURDICK, COURTNEY (at the
request of Portland Police Bureau)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Includes prostitution in circumstances under which law
enforcement officer may obtain part of conversation by means of
device. { + Provides that officer with probable cause to believe
person has committed, is committing or is about to commit felony
may intercept person's oral communication without court order
under certain circumstances.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
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 ORS
{ + 133.726 (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. + }
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