Summary
The Oregon Supreme Court considered whether police unlawfully intercepted and recorded a conversation between defendants and a police informant without first obtaining an ex parte court order under ORS 133.726. The court interpreted the statute's exigency exception as incorporating the constitutional concept of exigent circumstances and concluded that the exception did not apply on these facts. It held that the recording should have been suppressed, that the error was prejudicial, and reversed and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether ORS 133.726(7)(b)'s exception to the ex parte order requirement incorporates the constitutional exigent-circumstances standard.
- Whether the circumstances surrounding the planned hotel-room interception were sufficiently exigent to excuse police from obtaining an ex parte order.
- Whether admission of the unlawfully obtained recording and transcript was harmless error.
Holdings
- The phrase "circumstances of such exigency that it would be unreasonable to obtain a court order" refers to exigent circumstances in the specialized constitutional sense, requiring circumstances that demand swift action to prevent harm to persons or property, a suspect's escape, destruction of evidence, or a comparable immediate consequence that would frustrate legitimate law-enforcement efforts.
- The circumstances did not qualify as exigent under ORS 133.726(7)(b), because the asserted need to advance the investigation promptly, recover stolen property, and stop defendants from pressuring Maynard did not constitute an immediate threat to persons, property, evidence, escape, or law-enforcement operations; moreover, police reasonably could have obtained an order that evening.
- Admission of the recording and transcript was not harmless because there was more than a little likelihood that the evidence affected the verdicts.
Key quotations
“We conclude that, in ORS 133.726(7)(b), the phrase "circumstances* * * of such exigency that it would be unreasonable to obtain a court order," refers to "exigent circumstances" in the specialized legal sense” (351 Or. at 691-92, 277 P.3d at 529)
“But those potential consequences of waiting for a court order do not amount an "exigency" within the meaning of ORS 133.726(7)(b).” (351 Or. at 694, 277 P.3d at 532)
Factual background
Police investigated a burglary at Aaron's Furniture and Electronics after informant Crystal Maynard identified defendants as the perpetrators and described stolen computers and televisions in detail. Maynard later provided police with a stolen laptop and arranged to have defendants retrieve it from her hotel room. Police wired the room and recorded the conversation between Maynard and defendants without obtaining an ex parte order under ORS 133.726. The recording was admitted at trial along with other evidence, and defendants were convicted.
Procedural history
Defendants were jointly charged with aggravated first-degree theft and two counts of second-degree burglary. The trial court denied their joint motion to suppress the recording and transcript of their hotel-room conversation, and a jury convicted both defendants. The Court of Appeals affirmed without opinion. The Oregon Supreme Court allowed review, held that the interception violated Oregon's statutory order requirement and that admission of the recording was prejudicial, and reversed and remanded.
Remand instructions
The Court of Appeals decision and the circuit court judgments were reversed, and the case was remanded to the circuit court for further proceedings.