§ 4.11 Electronic Searches and Seizures

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 4.11 ELECTRONIC SEARCHES AND SEIZURES

Electronic searches and seizures are controlled by state and federal statutes and constitutional limitations. Lawyers should be familiar with both sets of statutes.

Oregon's electronic surveillance statutes were enacted in 1955 and have been amended numerous times. See State v. Evensen, 298 Or App 294, 300 n 2, 447 P3d 23, rev den, 366 Or 64 (2019). The first major revision of Oregon's electronic surveillance statutes occurred in 1979 (see Or Laws 1979, ch 716); it conformed Oregon law regarding ex parte interception orders more closely to federal statutes. See State v. Dimeo, 304 Or 469, 473 & n 1, 747 P2d 353 (1987). See ORS 41.910 (certain intercepted communications are inadmissible); ORS 133.721-133.739 (interception of communications); see also ORS 165.535-165.545 (crimes involving communications).

The federal statutes are contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Pub L 90-351, 82 Stat 197 (1968)), and are codified in 18 USC §§ 2510 to 2522. Title III requires state adherence to federal statutes unless state statutes substantially conform to Title III. See 18 USC § 2516(2) (a state judge may grant a surveillance order "in conformity with [18 USC §] 2518"); see also United States v. Giordano, 416 US 505, 522 n 11, 94 S Ct 1820, 40 L Ed 2d 341 (1974).

The proliferation of communications devices, such as voice pagers, which did not exist in 1968 when Congress passed Title III, led to a reexamination of privacy expectations. Compare, e.g., People v. Pons, 133 Misc2d 1072, 509 NYS2d 450 (1986) (the equivalent of a search warrant was required to intercept pager communications), with Dorsey v. State, 402 So2d 1178 (Fla 1981) (no warrant or order required).

Congress adopted the Electronic Communications Privacy Act of 1986 (ECPA) (Pub L 99-508, 100 Stat 1848 (1986)), in response to the new technologies. See 18 USC §§ 2510-2713. See generally 1986 USCCAN 3555-3606 (legislative history of the ECPA). Like Title III, the ECPA establishes minimum levels of privacy protection below which states may not fall. States remain free to adopt more protective standards. Compare, e.g., 18 USC § 2516(2) (permitting wiretaps for narcotics offenses), with former ORS 133.724(1)(c) (1987) (proscribing wiretaps for narcotics offenses).

Parts of the ECPA require that states enact statutes governing the use of electronic surveillance devices before law enforcement officials of that state may use such tools. See, e.g., 18 USC § 3121(a) (prohibiting use of a "trap and trace device" or a "pen register" except in compliance with the ECPA); 18 USC § 3127(2)(B) (preventing state court judges from authorizing use of trap and trace devices or pen registers unless state law has been adopted "authorizing the use" of such devices).

The 1989 Oregon Legislature accepted the congressional invitation in the ECPA to revise state statutes governing electronic surveillance and passed several laws over the objections of those who believed the legislation unnecessarily exposed private communications to interception. See Or Laws 1989, ch 983. The context of their adoption and the record compiled during consideration strongly suggest that the principal purpose of the 1989 enactments was to facilitate criminal investigations. Cf. State v. Pottle, 296 Or 274, 287-90, 677 P2d 1 (1984) (requiring "strict compliance" to the wiretap statute because the then-existing statute was primarily animated by concern for privacy rights).

The 1989 laws broadened the class of offenses that may be investigated by wiretaps. They defined, protected, and authorized interception of a new class of communications called "electronic communications." See ORS 133.721(3) (defining electronic communication); ORS 133.724 (order for interception of communications). Mobile tracking devices were also regulated by statute. ORS 133.617-133.619. Police authority to secretly record, without a court order, face-to-face oral communications was expanded. ORS 165.540. The legislation also authorized use of trap and trace devices and pen registers. ORS 165.657-165.673.

In 2001, the legislature again amended the electronic surveillance statutes, further broadening police statutory authority to record oral communications without a court order. Or Laws 2001, ch 385, § 2 (amending ORS 133.726).

Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act") in response to the threat of terrorism. Pub L 107-56, 115 Stat 272 (2001). The Patriot Act significantly expanded law enforcement authority to use electronic surveillance, including wiretaps, pen registers, and trap and trace devices.

§ 4.11-1 Oral Conversations

Subject to certain exceptions, no one may obtain or attempt to obtain any part of a conversation by means of any electronic surveillance device "if not all participants in the conversation are specifically informed that their conversation is being obtained." ORS 165.540(1)(c). The requirements of the statute are not met unless a specific warning is given, even if the person reasonably should have known that the recording was being made. State v. Bichsel, 101 Or App 257, 262, 790 P2d 1142 (1990). However, if one party provides warning that the conversation is being recorded, a second party may surreptitiously record the same conversation without violating ORS 165.540(1)(c). See State v. Neff, 246 Or App 186, 198, 265 P3d 62 (2011) (when a police officer informed the defendant that the police officer was recording their conversation, but the defendant surreptitiously recorded the same conversation, the defendant was not required to provide a warning to the police officer). Consent is not required, however, nor is "any particular form of warning." State v. Haase, 134 Or App 416, 419, 420 n 4, 895 P2d 813 (1995), rev den, 322 Or 612 (1996). In 2021, the legislature added a subsection to ORS 165.540 authorizing the recordation of a "video conference program," as long as

(1) the person recording the conversation "is a participant in the conversation, or at least one participant in the conversation consents to the recording"; and

(2) the person (a) is a law enforcement officer; or (b) is "acting in coordination with" a law enforcement officer, an attorney, or an enforcement or regulatory entity; or (c) "reasonably believes that the recording may be used as evidence in a judicial or administrative proceeding."

ORS 165.540(6)(b).

The term conversation means "the transmission between two or more persons of an oral communication which is not a telecommunication or a radio communication, and includes a communication occurring through a video conferencing program." ORS 165.535(1). In other words, all persons engaged in any kind of an oral conversation must be informed of an intended recording or electronic eavesdropping on the conversation. Violation of the statute is a Class A misdemeanor. ORS 165.540(8). Evidence derived in violation of ORS 165.540 must be suppressed, with certain exceptions. ORS 41.910(1); see State v. Armstrong, 24 Or App 785, 791, 547 P2d 170 (1976) (conversation recorded with consent of citizen).

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