State v. Dimeo

• Decision Date: 01 March 1988
• Citation: 304 Or. 469,747 P.2d 353
• Parties: STATE of Oregon, Respondent on review, v. Michael Frank DIMEO, Petitioner on review. CC 84-1088; CA A40044; SC S34062.
• Court: Oregon Supreme Court

Page 353

747 P.2d 353

304 Or. 469

STATE of Oregon, Respondent on review, v. Michael Frank DIMEO, Petitioner on review.

CC 84-1088; CA A40044; SC S34062.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Oct. 7, 1987.

Decided Dec. 15, 1987.

Reconsideration Denied March 1, 1988.

Stephen A. Houze, Portland, argued the cause for petitioner on review. With him on the petition was Sharon A. Williams, Portland.

Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

JONES, Justice.

Defendant was convicted of conspiracy to deliver a controlled substance and possession of cocaine. He appealed to the Court of Appeals, assigning as error the trial court's denial of his motion to suppress evidence gained from tape recorded telephone conversations between defendant and John McEachern and from the search of his automobile. The information obtained from the recording of the telephone conversations led to defendant's arrest and subsequent search of his automobile. The Court of Appeals affirmed defendant's conviction. State v. Dimeo, 84 Or.App. 491, 734 P.2d 391 (1987). We reverse the Court of Appeals.

Defendant relies on two points for reversal: First, defendant asserts that the evidence obtained from the telephone conversations between McEachern and himself should have been suppressed because McEachern did not consent to the recording of the conversations. Second, defendant asserts that the search of his automobile was unlawful because the affidavit upon which the search warrant was based was insufficient to establish probable cause to believe that contraband would be found in the vehicle.

We take the facts from the Court of Appeals opinion, the findings of fact of the trial court and defendant's brief. On November 27, 1984, a Portland Police Bureau narcotics officer arrested McEachern for possession of cocaine and conspiracy to deliver cocaine. Police seized a pound of cocaine from him. Shortly after his arrest, McEachern was questioned by Portland Police narcotics officers. At that time, he gave written consent for a search of his house, freely admitted that there was marijuana there, and gave its precise location within the house. Later, a second narcotics officer explained the charges to McEachern and the possible sentences he would face if convicted. The second officer also told McEachern that if he would help the police catch his supplier, the district attorney would be told about his cooperation. McEachern repeatedly requested to see an attorney before deciding to cooperate with the police, but his requests were ignored by the officers.

Almost four hours after his arrest, McEachern agreed to the police's recording of telephone conversations between himself and defendant. McEachern knew that the police were listening when he was conversing with defendant over the telephone. A series of four telephone conversations between McEachern and defendant were overheard and tape recorded by the police. As a result of these conversations, McEachern agreed to meet defendant at a shopping mall to purchase cocaine.

McEachern went with the police to the shopping mall. There, he and the police observed defendant drive up to the mall, get out of his car and enter the mall. A short time later, defendant walked from the shopping mall to McEachern's car and was arrested. Defendant was advised of his "Miranda " rights to remain silent. When no drugs were found on his person, defendant was asked for consent to search his car. Defendant refused to grant the police permission to search his car without a warrant. As a result, defendant's car was impounded. Upon obtaining a warrant, the police searched defendant's car for evidence of the crimes for which he had been arrested. The search revealed cocaine and a gun registered to defendant.

After defendant's indictment, pretrial hearings were held. Defendant moved to suppress his statements made during the recorded telephone conversations and the evidence seized from his car. The trial court denied defendant's motion to suppress. Defendant was convicted after a stipulated facts trial.

On appeal, defendant contended that the recorded telephone conversations between McEachern and himself should have been suppressed because McEachern's consent to the taping of the conversations was not voluntary. Defendant also contended that the evidence obtained as a result of the search of his vehicle was the "fruit of the illegal interception of telephone communications" between defendant and McEachern and also should have been suppressed.

In his petition for review to this court, defendant reasserts his grounds for reversal set forth above.

I.

Defendant argues that the recorded telephone communications between McEachern and himself were obtained through the involuntary consent of McEachern to the police's taping and that defendant's constitutional right to privacy under both the state and federal constitutions protects him from such an invasion.

Defendant asserts in his petition for review that:

"The Oregon legislature developed a very clear line of authority in controlling this kind of law enforcement activity when it enacted ORS 133.721, et seq. and ORS 165.475 et seq. A specific prohibition is created in ORS 165.540 which prevents the obtaining or attempt to obtain, record, or listen to communications to which one is not a participant unless consent is obtained by at least one participant in the conversation. Subsection (7) of ORS 165.540 makes violation of this statute a crime." (Emphasis in original.)

and that:

"The burden of proof is on the state under both the Oregon and federal constitutions and case law, to show that an individual's 'consent' to search, to wiretap, and/or to cooperate, was freely and voluntarily given. Oregon Constitution, Article I, sections 4, 8 and 11; U.S. Constitution, Fourth and Fourteenth Amendments * * *."

Thus, the issue boils down to whether the state has proven that McEachern voluntarily consented to the taping of the telephone conversations with defendant. No violation of a defendant's rights occurs if a telephone recording is made with the consent of one of the parties to the conversation. ORS 165.540(1)(a); State v. Lissy, 304 Or. 455, 747 P.2d 345 (1987) (decided this date).

This court has not addressed what is the proper standard for consent in the telecommunications context under ORS 165.540(1)(a). Under federal law, United States v. Bonanno, 487 F.2d 654 (2d Cir 1973), is considered the leading case interpreting the consent issue when one party consents to recording a telephone conversation. Although certainly not binding precedent for this court in interpreting our statute, we discuss this case because most of Oregon's wiretap law was intended to mirror the federal wiretap legislation. ¹ The iBonanno court stated:

"We observe at the outset that the extent of proof required to show that an informer consented to the monitoring or recording of a telephone call is normally quite different from that needed to show consent to a physical search whether by the defendant himself or by some person in a position to give an effective one. In cases involving physical search, the person alleged to have consented is doing something apparently contrary to his own interests or to those of another who often is in some way connected with him. An informer's consent to the monitoring or recording of a telephone conversation is an incident to a course of cooperation with law enforcement officials on which he has ordinarily decided some time previously and entails no unpleasant consequences to him. Hence, it will normally suffice for the Government to show that the informer went ahead with a call after knowing what the law enforcement officers were about." 487 F.2d at 658-59 (emphasis added; citations omitted).

Thus, under Bonanno, knowing participation in the telephone recording is sufficient; further evidence of consent is not necessary. In this case, there is no question that McEachern was a party to the conversation and knew that it was being recorded. This defendant has no valid claim of violation of any federal right.

We find the Bonanno "test" insufficient for application of ORS 165.540(1). Consent to cooperate with the police to record telephone conversations cannot be determined by such a shallow test that requires nothing about free will or lack of coercion, express or implied. We hold that our wiretap laws, which include "consent to telephone calls," require strict interpretation to protect the right of privacy as intended by the legislature in enacting the relevant portions of ORS chapters 133 and 165 and that the test for voluntary consent of telephonic recordations should be as set forth in other "consent" cases. Although used in a different context, those cases hold that the "proper test for voluntariness is to examine the totality of the facts and circumstances to see whether the consent was given by defendant's free will or was the result of coercion, express or implied." State v. Wolfe, 295 Or. 567, 572, 669 P.2d 320 (1983) (citing State v. Kennedy, 290 Or. 493, 502, 624 P.2d 99 (1981)). ²

Defendant asserts:

"Here, the circumstances surrounding McEachern's arrest, interrogation and subsequent agreement to contact defendant Dimeo demonstrate the involuntary nature of his conduct. Upon his arrest, McEachern was read his rights and subsequently, the police began to question him. McEachern refused to consent to the search of his vehicle and only after continued pressure and asking mainly to speak to his attorney, McEachern reluctantly consented. He was transported to the police station and questioning began again. McEachern continued to assert his right to call a lawyer. Further, * * * McEachern was wet from standing out in the rain and only clothed in a shirt and pants. After continued questioning and asserting his...