State v. Stockfleth

• Decision Date: 03 January 1991
• Docket Number: Nos. CC,s. CC
• Citation: 804 P.2d 471,311 Or. 40
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Petitioner/Respondent on review, v. Kathleen Ann STOCKFLETH, Respondent/Petitioner on review. STATE of Oregon, Petitioner on review, v. Michael John LASSEN, Respondent on review. 86-3-30485, CC 86-3-30486, CC 86-3-30488; CA A44567 (Control), CA A45133; SC S36769, SC S36775.

Page 471

804 P.2d 471

311 Or. 40

STATE of Oregon, Petitioner/Respondent on review, v. Kathleen Ann STOCKFLETH, Respondent/Petitioner on review.

STATE of Oregon, Petitioner on review, v. Michael John LASSEN, Respondent on review.

Nos. CC 86-3-30485, CC 86-3-30486, CC 86-3-30488; CA A44567

(Control), CA A45133; SC S36769, SC S36775.

Supreme Court of Oregon,

In Banc.

Argued and Submitted June 7, 1990.

Decided Jan. 3, 1991.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for the State of Oregon. With him on the petition for review and response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Wayne Mackeson, Portland, argued the cause for respondent/petitioner on review Stockfleth. With him on the petition for review was Des Connall, Portland.

GRABER, Justice.

These consolidated cases involve the sufficiency of two successive wiretap orders. Defendants are charged with arson, felony murder, conspiracy to commit arson, theft, attempted theft, and conspiracy to commit theft. The trial court suppressed the conversations obtained through the two orders, and the state appealed. The Court of Appeals affirmed, after which the state petitioned for review. ¹ We affirm, in part on other grounds.

Odie's Tavern in Elgin, Oregon, was damaged by a fire of uncertain origin on September 29, 1985. On January 27, 1986, an explosion and fire destroyed the tavern and damaged adjacent buildings. Witty, who lived next door, died in the fire. Investigators concluded that arson had caused the explosion and fire and that the owner of the tavern, defendant Lassen, was the most likely suspect.

The Union County District Attorney applied for authorization to intercept communications on Lassen's home telephone. The Circuit Court issued wiretap orders on January 31, 1986, and on February 19, 1986. Each of the wiretap orders contains three sections. Section 1 recited that the District Attorney submitted a wiretap application that conforms to the requirements of state and federal law. Section 2 finds "that there is probable cause and reasonable grounds to believe" a number of things on the basis of the application, which is attached and incorporated by reference. Section 2 of each order contains these findings, among others:

"a) The crime[s] of Felony Murder * * * and Arson in the First Degree * * * [have] been committed in Union County by [Lassen] ² and will likely be discussed over telephone service provided to [him at a specified number and residence.] "b) The Communications sought to be intercepted are particular[l]y described as communications involving [Lassen] who was involved in the commission [sic ] of or possesses knowledge of the crime[s] of felony murder and Arson in the First Degree committed at the premises known as Odie's Tavern in Elgin Oregon on or about January 27, 1986, and will relate to and will be evidence of the crimes specified in Paragraph 2(a) above * * * [.]

"c) The interception particularly described in Paragraph 2(b) above is necessary and essential in order to gain evidence of the commission by [Lassen] of the aforesaid crime[s], and there are no other means readily available for obtaining such information, and there are reasonable grounds to believe that evidence will be obtained essential to the solution of such crimes, and such evidence cannot otherwise be obtained by the use of normal investigative procedures because they reasonably appear to be unlikely to succeed or have already failed[.]"

Section 3 of each order provides in part:

"NOW, THEREFORE, IT IS ORDERED

"a) That * * * Law enforcement officers of this state be and are hereby authorized and commanded to intercept and seize the communications which are particularly described in Paragraph 2(b) above and which relate to the crimes specified in Paragraph 2(a) above and which involve the individuals described in Paragraph 2(a) above) [sic ] and the facilities and or premises specified in Paragraph 2(a) above[.]

" * * * * *

"q) The Communications which shall be intercepted are particular[l]y described as communications involving [Lassen] who is a suspect in the commission [sic ] of or is suspected of possessing knowledge of the crimes of felony murder and Arson in the First Degree committed at the premises known as Odie's Tavern in Elgin Oregon on or about January 27, 1986, and will relate to and will be evidence of the crimes specified * * *[.]"

Officers intercepted numerous telephone calls under each of the orders. On March 17, 1986, a grand jury indicted Lassen and defendant Stockfleth, from whom Lassen was buying Odie's Tavern.

The cases were consolidated for the purpose of hearing pretrial motions to suppress evidence obtained through the wiretaps. Defendants challenged the validity of the wiretap orders on a variety of theories. They argued that the state did not establish the necessity of a wiretap; that the wiretap orders contained inadequate termination provisions; that the applications failed to establish probable cause to believe that Lassen had committed arson and felony murder and that communications about those crimes could be obtained through wiretaps; that the orders did not contain sufficiently particular descriptions of the communications to be intercepted; and that the orders failed to specify Stockfleth as a person whose communications were to be intercepted. ³ ORS 133.724. ⁴

The trial court suppressed the conversations obtained from the wiretaps. It reasoned that the termination provisions in the orders were inadequate, because they allowed the interception to continue beyond the attainment of the authorized objective. ORS 133.724(5). The trial court rejected the other challenges to the wiretap evidence.

The Court of Appeals affirmed on different grounds. State v. Stockfleth/Lassen, 99 Or.App. 72, 781 P.2d 1220 (1989). It held, first, that the wiretap orders, read as a whole, defined the termination of authority to intercept with enough specificity to comply with ORS 133.724(5). Although the termination clauses in section 3 of each order stated only that interception should end "as soon as the necessary evidence has been obtained and the objective of the interception has been attained," sections 2(a), (b), and (c) of each order narrowed the objective to evidence "essential to the solution of" the specified crimes. The court concluded that the stated objective was "sufficiently definite to state the point at which it would have been attained and at which the authority to intercept would end." 99 Or.App. at 77, 781 P.2d 1220.

The Court of Appeals then addressed defendants' contention that the wiretap application failed to establish that a wiretap was a necessary investigative technique, as required by ORS 133.724(1)(h). Citing State v. Oslund, 71 Or.App. 701, 693 P.2d 1354, rev. den. 299 Or. 37, 698 P.2d 965 (1985), the court said:

"The application must provide a factual basis from which the issuing judge may conclude that normal investigative techniques have been tried in good faith to determine the identity of those violating the law and to justify their prosecution, and that those efforts have failed." 99 Or.App. at 78, 781 P.2d 1220.

The court held "that normal investigative techniques had not been attempted before resorting to the interception of telephone communications" and that the trial court should have suppressed the wiretap orders on the ground that the applications "fail[ed] to set forth facts sufficient to establish the statutory requirement that normal available investigative techniques were tried in good faith and failed." 99 Or.App. at 79, 781 P.2d 1220.

The state petitioned for review. The Court of Appeals treated the petition as one for reconsideration, ORAP 9.15, and allowed it in order to correct a factual error in the original opinion. On the merits, the court adhered to its former opinion. State v. Stockfleth/Lassen, 100 Or.App. 376, 378, 786 P.2d 227 (1990). We then allowed review. We conclude that the first wiretap order was not supported by the requisite showing of necessity and that the second wiretap order was issued invalidly as a result of the defective first order. Because we affirm the suppression of all seized conversations on those grounds, we need not consider the remainder of defendants' contentions.

The application for a wiretap order must include a "full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or are likely to be too dangerous." ORS 133.724(1)(h). A wiretap order may not issue unless "the judge determines on the basis of the facts submitted by the applicant that * * * [n]ormal 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." ORS 133.724(3)(c). In paragraph 2(c) of each order, the issuing judge found that normal investigative procedures either "reasonably appear to be unlikely to succeed or have already failed." ⁵ The threshold question before us is whether the applications in support of the orders contained sufficient facts to support one or both of the issuing court's findings.

The Court of Appeals analyzed only one of those two findings by the issuing judge. The court held that the application failed to provide a factual basis to conclude that normal investigative techniques had been tried and had failed. 99 Or.App. at 78-79, 781 P.2d 1220. The issuing judge also found, however, that normal procedures reasonably appeared to be unlikely to succeed. The statute authorizes a wiretap if either condition is met or if both conditions in conjunction are met (i.e., if some procedures have failed and others, as yet untried, are unlikely to succeed). ORS 133.724(3)(c). We must, therefore, consider both of the issuing court's findings.

The application must describe "whether or not other investigative procedures ...