74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
 
HA to HB 2134
 
LC 1014/HB 2134-2
 
                       HOUSE AMENDMENTS TO
                         HOUSE BILL 2134
 
                    By COMMITTEE ON JUDICIARY
 
                            April 20
 
  On page 1 of the printed bill, line 2, after the semicolon
delete the rest of the line and line 3 and insert 'creating new
provisions; and amending ORS 133.724 and 133.726.'.
  Delete line 18.
  In line 19, delete '(C)' and insert '(B)'.
  In line 21, delete '(D)' and insert '(C)'.
  On page 3, delete lines 26 through 29 and insert:
  ' (b) A statement demonstrating that:
  ' (A) There is probable cause to believe that a person whose
oral communication is to be intercepted is engaged in committing,
has committed or is about to commit a particular felony, or a
misdemeanor under ORS 167.007, and that intercepting the oral
communication will yield evidence thereof; or
  ' (B)(i) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
  ' (ii) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
  ' (iii) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
  ' (iv) Other 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'.
  Delete lines 37 through 40 and insert:
  ' (a)(A) There is probable cause to believe that a person is
engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and
  ' (B) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime; or
  ' (b)(A) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
  ' (B) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
  ' (C) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
  ' (D) Other 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.'.
  On page 4, line 9, delete 'if:'.
  In line 10, delete '(a)' and restore 'If'.
  In line 12, restore the bracketed material and delete the
boldfaced material.
  In line 14, restore '(b)' and delete '(B)'.
  In line 16, restore the period and delete '; or'.
  Delete lines 17 through 25.
  In line 26, restore '(8)' and delete '(9)'.
  In line 32, restore '(9)' and delete '(10)'.
  In line 40, restore '(10)' and delete '(11)'.
  In line 42, restore '(11)' and delete '(12)'.
  In line 45, restore '(12)' and delete '(13)' and restore ' (9)'
and delete '(10)'.
  After line 45, insert:
  '  { +  SECTION 3. + } ORS 133.726, as amended by section 2 of
this 2007 Act, 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 a person 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.
  ' (3) An ex parte order for intercepting an oral communication
in any county of this state 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: - }
  '  { - (A) There is probable cause to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007, and that intercepting
the oral communication will yield evidence thereof; or - }
  '  { - (B)(i) There is reasonable suspicion to believe that a
person whose oral communication is to be intercepted is engaged
in committing, has committed or is about to commit a crime; - }
  '  { - (ii) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer; - }
  '  { - (iii) Interception of the oral communication is
necessary to protect the safety of the person who may be
endangered; and - }
  '  { - (iv) Other 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 - }
  '  { +  (b) A statement demonstrating that there is probable
cause to believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and + }
  ' (c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
  ' (4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
 
  ' (5) Upon examination of the application and evidence, the
judge may enter an ex parte order, as requested or as modified,
authorizing or approving 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)(A) There is probable cause to believe that a person
is engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and - }
  '  { - (B) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime; or - }
  '  { - (b)(A) There is reasonable suspicion to believe that a
person whose oral communication is to be intercepted is engaged
in committing, has committed or is about to commit a crime; - }
  '  { - (B) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer; - }
  '  { - (C) Interception of the oral communication is necessary
to protect the safety of the person who may be endangered;
and - }
  '  { - (D) Other 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. - }
  '  { +  (a) There is probable cause to believe that a person is
engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and
  ' (b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime. + }
  ' (6) An order authorizing or approving the interception of an
oral communication under this section must specify:
  ' (a) The identity of the person, if known, whose oral
communication is to be intercepted;
  ' (b) A statement identifying the particular crime to which the
oral communication is expected to relate;
  ' (c) The agency authorized under the order to intercept the
oral communication;
  ' (d) The name and office of the applicant and the signature
and title of the issuing judge;
  ' (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 a person 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 a person 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 475.840, 475.846
to 475.894 or   { - 475.904 to 475.910 - }   { + 475.906 + } 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 the 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 the
criminal laws of this state or the United States;
  ' (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 4. + }  { + The amendments to ORS 133.726 by
section 3 of this 2007 Act become operative on January 2,
2012. + } ' .
  Delete pages 5 and 6.
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