State v. Tucker

• Decision Date: 10 June 1983
• Docket Number: Nos. 20-567,s. 20-567
• Citation: 662 P.2d 345,62 Or.App. 512
• Parties: STATE of Oregon, Appellant, v. Mindi Marie TUCKER, Respondent. a, 81-5453a; CA A22122. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 345

662 P.2d 345

62 Or.App. 512

STATE of Oregon, Appellant, v. Mindi Marie TUCKER, Respondent.

Nos. 20-567a, 81-5453a; CA A22122.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted May 14, 1982.

Resubmitted In Banc Feb. 9, 1983.

Decided April 13, 1983.

Reconsideration Denied June 10, 1983.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Wayne Mackeson, Certified Law Student, Portland, argued the cause for respondent. On the brief was Des Connall, P.C., Portland. BUTTLER, Judge.

The state appeals from a pretrial order granting defendant's motion to suppress all evidence obtained by the state through the interception of all telephone calls to and from defendant's telephone during a period of about six weeks. The trial court found that the state had made no effort to minimize the interception of communications not otherwise subject to interception, ORS 133.724(4) and (5); ¹ its order suppressed the tape recordings of all 958 telephone calls intercepted. We affirm.

Early in the morning of December 14, 1980, defendant's husband, Christopher Lee Tucker, was found dead at his home in Aloha by his two brothers, who had gone there to check on him at the request of their parents. He had been stabbed five times. Investigating officers interviewed defendant on December 14 and obtained the following information: (1) she had been estranged from her husband for a week and had moved into a friend's apartment; (2) she expressed concern over Christopher's well-being, and (3) Christopher had been threatened by two men in the defendant's presence a few days earlier.

After further investigation, suspicion focused on defendant and Craig Pottle; the police suspected that the two of them had planned the murder in order to collect and split insurance proceeds payable on Christopher's death. To delineate further the roles defendant and Pottle played in the murder, the district attorney, pursuant to ORS 133.724(1), applied to the circuit court for an ex parte order authorizing the interception of telephone calls to and from the telephone at the apartment of the friend with whom defendant was then living. The order was signed by the judge on December 17, and provided, in part, that the communications to be intercepted were limited to the telephonic communications of defendant "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 insurance proceeds she intends to collect." The order did not contain the statutorily required provision that the interception "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception, * * *." ORS 133.724(5).

The initial order expired after 15 days, but two later orders extended it through January 30, 1981. Although the order was limited to communications of the defendant, the district attorney instructed the law enforcement officers to intercept all telephone conversations to and from that telephone, and all of them were monitored, logged and tape-recorded by the sheriff's deputies assigned to the operation. Those officers testified that they were instructed to monitor and record all conversations with the exception of conversations between defendant and legal counsel. They also testified to being able to identify defendant's voice within a few days after they commenced the monitoring. Of the 958 telephone conversations monitored, defendant participated in 461, and 260 of those were irrelevant to the matters covered by the order. The wiretap ended on January 16, 1981, when defendant and Pottle were arrested and taken into custody.

The trial court, in ordering suppression of all of the taped conversations, found that the state had substantially complied with all statutory requirements except one: minimization. The order authorizing the wiretap did not require minimization as mandated by ORS 133.724(5), but did limit what communications were authorized to be intercepted. The statutory minimization requirement is different from, and in addition to, the requirements that the order identify the person whose communications are to be intercepted and particularly describe the types of communication to be intercepted and the crime to which it relates. Minimization is a further limitation on the continued monitoring of communications of a person whose calls the order authorizes to be intercepted and requires that the interception cease if and when it is determined that the subject matter of a particular communication is irrelevant to the investigation. It may be that if there is minimization in fact, the absence of the required language in the order would not be fatal. Here, however, the trial court found, and the state does not deny, that the officers, at the direction of the district attorney, went well beyond the limitations that were contained in the order, intercepting and recording all telephone calls, including 192 calls to which defendant was not a party. The court also found that there had been no periodic judicial review or supervision of the interceptions. In fact, the judge authorizing the wiretap specifically declined that responsibility by deleting that portion of the proposed authorizing order. The trial court declined to order only a partial suppression, because it found that there was no good faith, or any, effort to minimize or that there had, in fact, been any minimization.

The state contends that the trial court erred in suppressing all of the intercepted communications, because under the totality of circumstances the minimization requirements of the statute were met. It urges the use of an objective standard of reasonableness that would demonstrate compliance with the statute here. Second, the state argues that, even if the minimization requirement was not met, total suppression was not the proper remedy; rather, if suppression is appropriate, it should be limited strictly to what the trial court determines to be unauthorized or non-minimized interceptions.

Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), addressed the minimization issue under the federal statute on which the Oregon statute is based. The Court treated wiretapping as a search and seizure under the Fourth Amendment and held that there must be an objective assessment by the Court of the officers' actions in light of facts and circumstances then known to the officers in determining the validity of a search. Specifically as to wiretaps, the Court stated that the federal statute focuses on actions, not motives.

Applying the Scott standards to this case, several differences come to light. In Scott, the order authorizing the wiretap expressly required minimization, using the mandatory statutory language. In this case, that language is missing. In Scott, the trial judge authorizing the wiretap reviewed the situation on a regular basis throughout the period during which the wiretap was authorized. Here, the authorizing judge struck the language in the order calling for such judicial monitoring and review, and there was no judicial review of the operation. Further, there were only two suspects, Tucker and Pottle, whose identities were known to the police. Scott involved narcotics transactions of unknown scope and an uncertain and unspecified number of people; the investigation resulted in 22 arrests and 14 indictments. The investigation there involved numerous, different occurrences, which, as the investigation progressed, broadened its focus beyond the original suspects. Here, nothing happened to change or extend the focus of the officers from the original two suspects.

The Supreme Court discussed several circumstances under which it would be reasonable for law enforcement officers not to attempt termination of intercepted calls. It listed short calls, one-time only calls and ambiguous calls. It pointed out the reasonableness of officers intercepting all calls in the early stages of surveillance, before any patterns emerged or before the officers could readily recognize voices. The Court then suggested that, once non-pertinent categories of calls were established, it would be unreasonable for officers to continue interception of those calls.

The wiretap in this case lasted from December 18, 1980, until January 16, 1981. The officers testified that they were familiar with the defendant's voice within a few days or, at the latest, by the end of the first week. Suspected co-conspirator Pottle's voice was easily identifiable by his Boston accent. Neither defendant nor Pottle used a code. The focus of the investigation continued to be on defendant and Pottle, and they were the only two arrested or charged with the murder.

Thus, it is difficult to justify, even under the totality of circumstances using an objective standard of reasonableness (as urged by the state), the officers' intercepting all telephone conversations to and from the telephone authorized to be tapped, ignoring the minimization requirements of the statute as well as the limitations imposed by the order. Unlike broad-based investigations in which there are numerous suspects, sophisticated codes and constant monitoring by the court, this case was focused and narrow and the interceptions were wholly unsupervised by the court. A broad search and seizure through a wiretap was unnecessary and an unchecked invasion of privacy.

The trial court's findings are supported by the record, and we find no reasonable basis for concluding that the minimization requirements under the statute or imposed by the authorizing order were met under the totality of the circumstances. Whether the remedy of total suppression of all intercepted calls is appropriate is another question. Because in Scott the Supreme Court concluded that the minimization requirements...