State v. Pottle

• Decision Date: 24 January 1984
• Docket Number: Nos. TC,s. TC
• Citation: 677 P.2d 1,296 Or. 274
• Parties: STATE of Oregon, Respondent on Review, and Petitioner on Review, v. Craig Steven POTTLE, Petitioner on Review and Respondent on Review. 20-567B, CA A22439, SC 29615 and 29616.
• Court: Oregon Supreme Court

Page 1

677 P.2d 1

296 Or. 274

STATE of Oregon, Respondent on Review, and Petitioner on Review, v. Craig Steven POTTLE, Petitioner on Review and Respondent on Review.

Nos. TC 20-567B, CA A22439, SC 29615 and 29616.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Oct. 5, 1983.

Decided Jan. 24, 1984.

[296 Or. 275] Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner/respondent on review, Pottle. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Stephen F. Peifer, Deputy Atty. Gen., Salem, argued the cause and filed the brief for respondent/petitioner on review, state of Or. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

CAMPBELL, Justice.

This case involves the legality of a wiretap. The trial court found the wiretap order to be sufficient on its face, held that defendant Pottle lacked "standing" to object to the lack of minimization in the conduct of the wiretap, and denied his motion to suppress the wiretap and the derivative evidence. The Court of Appeals reversed, found that Pottle had "standing," suppressed the evidence and remanded for a new trial. 62 Or.App. 545, 662 P.2d 351 (1983). We allowed review, restricting our review to the admissibility of the wiretap evidence. ¹ We affirm the Court of Appeals.

Christopher Tucker was found dead in his apartment in the early morning of December 14, 1980. Because his death appeared to be a homicide, the police began an immediate investigation. Within a few days, they gathered information that led them to believe that Tucker's widow, Mindi Tucker, and a friend of hers, defendant Craig Pottle, planned and executed Christopher Tucker's death so they could share in the proceeds of his life insurance policy.

Mindi Tucker had separated from her husband a short time before his death, moving into a girlfriend's apartment. The police obtained an ex parte order authorizing and approving the interception of certain wire communications involving this friend's telephone on December 17, 1980. They later obtained two extensions for this same wiretap. None of the people involved in this order, including the district attorney and the police officers, had ever attempted a wiretap before. Although the purpose of the wiretap was to obtain information about the murder of Christopher Tucker from the conversations of Mindi Tucker and Craig Pottle, every conversation was intercepted and recorded in its entirety, regardless of the parties involved or the subject matter of the conversation. The police intercepted a total of 958 telephone calls. Of this total, 15 calls were conversations between defendant and Mindi Tucker and another six were defendant's unsuccessful attempts to reach Mindi Tucker.

The police ended the wiretap on January 16, 1981, following the arrest of Mindi Tucker and Craig Pottle for the murder of Christopher Tucker.

At a pretrial omnibus hearing, the court granted Mindi Tucker's motion to suppress all evidence from the wiretap, as well as all derivative evidence, finding that the police failed to minimize, that is, limit their interceptions to those conversations pertinent to the investigation. ²

At the hearing on Pottle's motion to suppress the same evidence, the omnibus hearing on Tucker's motions was incorporated in its entirety. Pottle argued both to the trial court and the Court of Appeals that this wiretap evidence should be suppressed on several different grounds, including lack of probable cause to issue the order, facial invalidity of the order, lack of minimization in the conduct of the wiretap, (although he concedes his conversations could have been seized with a proper minimization order properly executed) and failed to seal the records promptly. The trial court denied his motion to suppress, and the jury found Pottle guilty of murder. The Court of Appeals reversed the trial court, finding that Pottle has "standing" to object to the lack of minimization in the conduct of the wiretap, and this lack of minimization required suppression of the wiretap evidence. We agree the evidence must be suppressed, but on different grounds.

The order authorizing the wiretap reads as follows:

"IN THE CIRCUIT COURT OF THE STATE OF OREGON

"FOR THE COUNTY OF WASHINGTON

"In the Matter of Interception ) Ex-parte Order Authorizing

of Certain Communications ) and Approving the Interception

) of Certain Wire Communications

)

)

"This matter came before the Court on the application under oath of Ray Robinett, the duly elected District Attorney of Washington County, Oregon, for an "That this Court FINDS from the application and supporting affidavits and statements that:

Order authorizing and approving the [296 Or. 278] interception of telephonic communications of Mindi Tucker with Craig Pottle. The sworn application was supported by affidavits.

"1. There is probable cause for belief that Mindi Tucker committed, aided and abetted the commission or conspired to commit the murder of Christopher Tucker on December 15, 1980;

"2. That there is probable cause for belief that communications between Mindi Tucker and Craig Pottle concerning the murder of Christopher Tucker will be obtained through an interception of telephonic communications of Mindi Tucker;

"3. That normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried;

"4. There is probable cause to believe that the telephone of [Mindi Tucker's roommate] is one commonly used by Mindi Tucker.

"Therefore, it is ORDERED that:

"1. The interception of telephonic communications of Mindi Tucker are approved and authorized by this order;

"2. That the telephonic instrument, [location and name of Mindi Tucker's roommate] is the description and location of the facility from which the wire communication is to be intercepted pursuant to this order;

"3. That the communications to be intercepted are limited to telephone communications of Mindi Tucker which are made or received on the above described telephone which pertain to the murder of Christopher Tucker and the intended distribution of $75,000.00 insurance proceeds she expects to collect;

"4. That this interception order shall be carried out by the Washington County Sheriff's Office; the person authorizing the application is Lt. John Vallery of the Washington County Sheriff's Office;

"5. This order will remain in effect for a period of 15 days from the date hereof and will not automatically terminate when the above described communications are received; it will terminate automatically upon the expiration of the above period unless extended pursuant to ORS 133.724(5) and applicable provisions of said statute;

"6. * * *

"7. The application, this order, all supporting documents and testimony in connection herewith shall remain confidential in the custody of the court and these matters shall not be released or information concerning them in any manner disclosed except upon written Order of this Court and as required under ORS 135.805 to 135.873; no person having custody of any records maintained under this Order pursuant to ORS 133.721 to 133.739 shall disclose or release any materials or information contained therein except under written Order of the Court as required under ORS ORS 135.805 to 135.873.

"Dated this 17 day of December, 1980.

/s/ Donald C. Ashmanskas

Circuit Court Judge" ³

The statute setting out requirements for a wiretap order is ORS 133.724(3)-(6):

"(3) Upon examination of such application and evidence [as described in ORS 133.724(1) ] the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the state if the judge determines on the basis "(a) There is probable cause for belief that an individual is committing, has committed or is about to commit a particular crime described in paragraph (c) of subsection (1) of this section;

of the facts submitted by the applicant that:

"(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 or oral communications to be intercepted are being used, or are about to be used, in connection with the commission of that crime are 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 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 order entered pursuant to this section shall authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of authorization, nor in any event longer than 30 days. Extensions of any order may be granted, but only when application for any extension is made in accordance with paragraph (k) of subsection (1) of this section and the...