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
 
                         Senate Bill 654
 
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 as
introduced.
 
  Includes prostitution in circumstances under which law
enforcement officer may obtain part of conversation by means of
device.
 
                        A BILL FOR AN ACT
Relating to interception of communications; amending ORS 133.724,
  133.726 and 165.540.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 165.540 is amended to read:
  165.540. (1) Except as otherwise provided in ORS 133.724 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 a misdemeanor under ORS 167.007 + } 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  { + or
misdemeanor + } 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) 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) 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) 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) Violation of subsection (1) of this section, subsection
(2)(b) or subsection (5)(b) or (c) of this section is a Class A
misdemeanor.
  SECTION 2. 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 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 3. ORS 133.726 is amended to read:
  133.726. (1) An ex parte order for the obtaining of any
conversation in any county of this state under ORS 165.540 (5)(a)
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. 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 cause to
believe that a person whose conversation is to be obtained is
engaged in committing or has committed a particular felony
 { + or a misdemeanor under ORS 167.007  + }and that the
obtaining of the conversation will yield evidence thereof; and
  (c) The identity of the person, if known, suspected of
committing the crime and whose conversation is to be obtained.
  (2) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
  (3) 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 within the
state if the judge determines on the basis of the facts submitted
by the applicant that:
  (a) There is reasonable cause to believe that a person is
engaged in committing or has committed a particular felony { +
or a misdemeanor under ORS 167.007 + }; and
  (b) There is reasonable cause to believe that conversations to
be obtained will contain evidence concerning that crime.
  (4) An order authorizing or approving the obtaining of
conversations under ORS 165.540 (5)(a) shall specify:
  (a) The identity of the person, if known, whose conversation is
to be obtained;
  (b) A statement of the particular crime to which the
conversation is expected to relate;
  (c) The agency authorized under the order to obtain the
conversation;
  (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.
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