74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1014
A-Engrossed
House Bill 2134
Ordered by the House April 20
Including House Amendments dated April 20
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
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.
Expands permissible bases for interception of wire, electronic
or oral communications. { - Limits grounds for suppression of
intercepted communications. - }
A BILL FOR AN ACT
Relating to interception of communications; creating new
provisions; and amending ORS 133.724 and 133.726.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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) + } A particular felony of murder, kidnapping, arson,
robbery, bribery, extortion or other crime dangerous to life and
punishable as a felony { - , or - } { + ;
(B) + } A crime punishable as a felony under ORS
{ + 166.720, + } 475.840, 475.846 to 475.894 or
{ - 475.906 - } { + 475.904 to 475.910 + } or as a misdemeanor
under ORS 167.007 { - , - } { + ; + } or
{ + (C) + } 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 - } { + other investigative procedures + } 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 { + planning or the + }
commission of that crime are { + open to the public or are owned
by, + } 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 - } { + An + } order entered pursuant to this
section { - shall - } { + may not + } 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 - } { + and in no + } event
{ + for + } 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 - } { + of that order + } shall contain a
provision that the authorization to intercept { - shall - }
{ + must + } be executed as soon as practicable, { - shall - }
{ + must + } 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 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 - } { + 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 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 - }
{ + (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 + }
(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) 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. - }
{ + (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. + }
(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
{ - someone - } { + 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 { - someone - } { + 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 { - 475.906 - } { + 475.904 to 475.910 + } 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 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. + }
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