State v. Pottle

*276CAMPBELL, J.

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 P2d 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 *277defendant 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 failure 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 Order authorizing and approving the *278interception of telephonic communications of Mindi Tucker with Craig Pottle. The sworn application was supported by affidavits.
“That this Court FINDS from the application and supporting affidavits and statements that:
“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 Sheriffs Office; the person authorizing the application is Lt. John Vallery of the Washington County Sheriffs Office;
*279“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;
ÍÍ0 * * * * *
“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 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 of the facts submitted by the applicant that:
“(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;
*280“(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 court makes the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purpose for which it is granted and in no event for longer than 30 days. *281Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception, and must terminate upon attainment of the authorized objective, or in any event in 30 days.
“(6) Whenever an order authorizing interception is entered pursuant to this section, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.”

ORS 133.735 provides for the suppression of intercepted communications:

“(1) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted under ORS 133.724, or evidence derived therefrom, on the grounds that:
“(a) The communication was unlawfully intercepted;
“(b) The order of authorization or approval under which it was intercepted is insufficient on its face; or
“(c) The interception was not made in conformity with the order of authorization or approval.
“(2) Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been unlawfully obtained. The judge, upon the filing of such motion by the aggrieved person, may in the judge’s discretion make available to the aggrieved person or the person’s counsel for inspection such portions of the intercepted communications or evidence derived therefrom as the judge determines to be in the interests of justice.”
“Aggrieved person” is defined by ORS 133.721(1):
“(1) ‘Aggrieved person’ means a person who was a party to any wire or oral communication intercepted under ORS 133.724 or a person against whom the interception was directed.”

*282Immediate sealing of the recordings is required under ORS 133.729:

<<* * * immediately upon the expiration of the period of the order issued under ORS 133.724, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under the direction of the judge. * *

Defendant claims that the evidence from this wiretap must be suppressed pursuant to ORS 133.735 because: (1) the Oregon wiretap statute is unconstitutional or preempted by federal statutes; (2) the application failed to establish probable cause; (3) the wiretap order was defective in that it failed to include the minimization, termination and immediate execution provisions expressly required by ORS 133.724(5), and failed to specify defendant as a person whose communications are to be intercepted as required by ORS 133.724(4) (a); (4) the circuit court correctly held that the police failed to minimize the interception of nonpertinent calls, and the circuit court should therefore have suppressed all telephone calls; and (5) the tapes were not sealed immediately upon expiration of the order.

This is the first time this court has considered the interpretation of our wiretap statutes, which were amended in 1979. The state argues that because these statutes were adopted to bring Oregon’s wiretap provisions in line with the federal standards in Title III of the 1968 Omnibus Crime Control Act, 18 USC §§ 2510-2520, this court should follow federal caselaw in the interpretation of these statutes. It also suggests that because other states have adopted provisions patterned on Title III, the decisions of these state courts should also be considered.

The state argues that all state and federal courts that have considered the question have upheld statutes similar to ours against per se attacks of unconstitutionality. It asserts that defendant fails to present a cogent argument on preemption and that it would be impossible to do so.

The state argues that the probable cause standard for the interception orders is the same as that required for warrants, and that under Oregon law the affidavits in the present case reach this level.

*283The state concedes that language calling for “execution as soon as possible” was omitted from the order, but contends that there was a termination clause in paragraph 5 of the order and argues that the order contains what “amounts to a minimization clause” in paragraph 3, both quoted above. The state argues that federal caselaw does not require tal-ismanic words, and federal courts generally refuse to declare such an order invalid. The states also argues that ORS 133.724(4)(a) does not require the order to name Pottle, that the interception and recording of all calls was essentially in compliance with the minimization requirement, and that even if it was not, defendant lacks “standing” to challenge any alleged failure to minimize any intercepted calls other than those to which he was a party.4

In response to the charge that the tapes should be suppressed because they were not promptly sealed as required by ORS 133.729, the state contends that under either of the two general approaches adopted by the federal courts to this problem, the defendant cannot prevail. He failed to show prejudice resulting from the lack of immediacy in the sealing of the tapes, and the government proved an “adequate and reasonable explanation” for the delay, including measures that were employed to prevent tampering.

We need not resolve most of the arguments outlined above, because we hold that under our statutes the order is fatally defective, and the resulting evidence from the wiretap, as well as all derivative evidence, must be suppressed.

*284We examine first the order itself.

“The order serves the same function as a conventional search warrant by indicating judicial authority for the search, acting as the formal record of judicial action, establishing the limits of the search, instructing the officers on the scope of their authority and discretion, and providing the basis for determining the legality of the execution of the search.” J. Carr, The Law of Electronic Surveillance, §4.07,194-95.

ORS 133.724(5) clearly and unequivocally states:

“Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception, and must terminate upon attainment of the authorized objective, or in any event in 30 days.”

The state concedes that there was no mention in the order that the interception be executed as soon as practicable.

It argues that “minimization” is found in the provision of the order which authorizes interceptions only of conversations to which Mindi Tucker is a party and the subject of which is either the murder of her husband or the insurance proceeds. This is not sufficient for a minimization provision, because it does not address the minimization of the interception of all other conversations. The application must provide probable cause for the order to issue. There was no probable cause even alleged to support the interception of any conversation other than those in which Mindi Tucker or defendant were parties.

There is no clause informing officers that they must conduct the interception “in such a way as to minimize the interception of communications not otherwise subject to interception.” ORS 133.724(5). Minimization, like the above statutory restrictions on wiretaps, embodies the constitutional prohibition against general searches; all are intended to avoid seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized. These provisions serve the same purposes as the particularity requirement of a conventional search. “[T]he constitutional principle that all invasions of privacy must be limited in scope to the minimal *285intrusion necessary to fulfill their purpose is related to minimization, with particular reference to the problems of duration and termination.” (Footnote omitted.) J. Carr at §507, 257.

The state also argues that the order has a termination provision, because paragraph 5 of the order states that the order will terminate at the end of the applicable period. However, the statute requires that an order have a provision that the interception of the communications end when the objective of the wiretap is achieved. The order in this case does not have such a provision.

The statute requires the order to state that it “must terminate upon attainment of the authorized objective, or in any event in 30 days.” This obviously requires that the authorized objective be carefully identified in the order so as to define the point when it has been attained and the authority ends. The first sentence of ORS 133.724(5) leaves no doubt that that interception is unauthorized and hence illegal when it exceeds the period necessary to fulfill the objective for which it was authorized or 30 days. “Continuous searches, like those which are either unspecific in their objective or look for items not authorized in a warrant, are aspects of the basic problem of general searches.” Carr §5.07(1) at 257-58.

Both a termination directive and a duration directive are necessary to limit surveillance to the shortest period required to obtain the authorized conversations. This order contained a duration directive of 15 days; however, there was no statement to the officials conducting the wiretap that should they gain the objective authorized in the order in some lesser period the interception must cease. The order in the present case even states a contrary directive. Paragraph five of the order states that the order “will not automatically terminate when the above communications are received.” Because the district attorney did not set out a precise objective in the application, we must assume that it was to gather enough evidence to convict Mindi Tucker and Craig Pottle of murder. This is supported by the testimony from the district attorney. If on the first day an officer heard and recorded an exact and full description of the crime and confessions of each of the parties, under this order he would believe he should continue listening and recording until the end of the 15 days. Whether *286he would do this in order to gain superfluous evidence or out of sheer curiosity makes no difference, the continuation of any wiretap beyond the achievement of its objective is illegal, and under the Oregon statute the order must so state.

Defendant also contends that it was error for the order to fail to name him as a person whose communications were to be intercepted. United States v. Kahn, 415 US 143, 94 S Ct 977, 39 LEd2d 225 (1974), holds that the government is required to identify an individual in the application when it has probable cause to believe that the individual is engaged in the criminal activity under investigation and the individual’s conversations will be intercepted over the target telephone. In United States v. Donovan, 429 US 413, 97 S Ct 658, 50 LEd2d 652 (1977), the Court reaffirmed this holding and made it clear that in some circumstances applications should name more than one person even though the federal statute also uses the word “person” rather than “persons.”

In the present case the application named the defendant. The question presented is whether the order also needed to name him. We see no reason to distinguish between ORS 133.724(1) (g) which requires an application to include “the identity of the person, if known, suspected of committing the crime and whose wire and oral communications are to be intercepted,” and ORS 133.724(4)(a) which requires that every order authorizing a wiretap specify “the identity of the person, if known, whose communications are to be intercepted.” It was error to fail to name defendant as a person whose communications were to be intercepted. The District Attorney’s request was for an order “authorizing and approving the interception of telephonic communications of Mindi Tucker and Craig Pottle.” Pottle was the focus of this investigation in the same way that Tucker was. He was known to the police at the time they sought the order and they intended that his conversations would be taped. He should have been identified in the order as a person “whose communications are to be intercepted.” ORS 133.724(4)(a).

The district attorney’s testimony is clear that the two focal suspects at the time he made the original application were Mindi Tucker and Craig Pottle, and he felt that there was probable cause to believe they were both involved in the conspiracy to kill Chris Tucker. Even if the distict attorney *287had not testified that he had probable cause regarding Pottle’s involvement at the time of the initial application, he heard at least ten conversations between the two people before he applied for the first extension on December 31. In several of these conversations, Pottle mentioned the insurance money which he clearly expected to share. From this further evidence, Pottle surely should have been named in the first extension order.

The testimony was uncontroverted that the decision to arrest Pottle and Tucker was made by the afternoon of January 16, and yet in the application for the second extension, on January 15, Pottle was still not named as a target.

The requirement that known targets be identified in the order is not one of mere form. Naming the person whose conversations will be “seized” in the constitutional sense fulfills the particularity requirement of the constitutional guarantees against warrantless searches and seizures. In the conventional search the “place to be searched” must be described with particularity. In a wiretap the persons whose conversations are sought must be revealed. Both serve the purpose of confining the scope of the search and seizure to that evidence for which the police have already demonstrated probable cause and the need for the interception order.

We are aware that the majority of federal cases have approved what amounts to a substantial compliance standard for the statutory requirements. We consider this inadequate. Because of the inherent dangers of abuse in the wiretap process, we hold that Oregon courts must require strict compliance with all statutory requirements leading to the issuance of a wiretap order. The act of intercepting a communication is both a search and a seizure. Katz v. United States, 389 US 347, 353, 88 S Ct 507, 19 LEd2d 576 (1967). In the present instance, we are dealing with a search and seizure process that is inherently more intrusive than the traditional search and seizure. This statutory scheme shows two concerns: the authorization of a powerful tool to be used in criminal investigations and the protection of individual privacy. Our court system must carry out the legislature’s concern for privacy as much as the aim of law enforcement.

Any police officer may apply for a search warrant, and any judge may sign such a warrant. ORS 133.545. We find *288it significant that the Oregon wiretap statute requires that a district attorney make the application for any wiretap order and allows only a circuit court judge to issue such an order. ORS 133.724(1). The legislature has guaranteed that people trained in the law will be involved in the application procedure. We believe that it is not too “picky” to expect a person holding the office of district attorney to read the entire statute governing the contents of the application and order, and follow it.

Before a warrant will issue for an ordinary search and seizure, the person or thing to be seized must be described with particularity. In the wiretap situation a conversation, or the thing to be seized, does not exist at the time of the application for the order and will not exist until the time of the seizure. This makes it difficult to describe to the officers who are conducting the wiretap what it is that they may seize, and yet there must be a description that acts as a limitation. The order is the document that allows the police to invade the privacy of all people who use the telephone wire during the authorized period of interception, and limits that invasion. Our statutes are precise about what must be in this document to allow the use of a wiretap. A wiretap order cannot be in the nature of a general warrant and withstand a challenge. A wiretap order may not allow carte blanche surveillance, any more than a search warrant may allow a general search.

An ordinary search is a one time invasion of privacy, limited in duration and generally conducted with the knowledge of the suspect. A wiretap is a continuing surreptitious intrusion. In the present case, the wiretap lasted almost a month and intercepted 958 calls in which 79 different people participated. The police seized every conversation made on this telephone, taping them all as well as listening to them, even though most of the conversations dealt with matters in no way related to any crime.

By its very nature, wiretapping involves a broad invasion of privacy. Agents will always seize some non-pertinent conversations because of the difficulty in determining whether a conversation is pertinent and the concern that a conversation between named suspects might begin in an innocent manner and later become incriminating. But here the executing agents were left free to seize at will every *289communication that came over the wire; indeed, they were directed to do so by the district attorney.

The physicial characteristics of the thing to be seized limit the ordinary search somewhat. An officer directed to look for a rifle could not look in a hat box or a cigarette package. This limitation in the scope is not as obvious in a wiretap; the minimization requirement assumes an enhanced importance as a result.

In an ordinary search, when an officer seizes the person or thing named in the warrant, the authority of the warrant ends and the search must end. This must also be true in the wiretap situation. The statute requires that when the objective of the wiretap is obtained, the wiretap must cease. The order in the present case not only lacks this important limitation, but specifically directs that the interceptions continue. We agree with what one commentator said of electronic surveillance: “No other form of official surveillance is as drastic an intrusion upon our thoughts, or lives.” Fishman, The “Minimization” Requirement in Electronic Surveillance: Title III, The Fourth Amendment and the Dread “Scott” Decision, 28 Am U L Rev 315, 315-316 (1979).

In requiring more protection for our citizens in this area than the federal courts do, we are not alone. Recently, the Rhode Island Supreme Court reaffirmed its insistance on a standard of strict compliance with the requirements of its wiretap statutes, suppressing evidence because the order did not contain a particular description enumerating the types of communications sought to be intercepted. State v. Sitko, _ RI _, 460 A2d 1 (1983). The same court in an earlier case suppressed evidence because the wiretap order did not contain a provision requiring execution as soon as possible, a minimization requirement, and a termination clause. State v. Luther, 116 RI 28, 351 A2d 594 (1976).

In 1972, the highest court in Maryland determined that a wiretap order that lacked these same three provisions was invalid and required suppression of the evidence. The court announced that it would employ a standard of strict compliance in its examination of a wiretap application and order. State v. Siegal, 226 Md 256, 292 A2d 86 (1972). This standard of strict compliance with the preconditions for a *290wiretap was recently reaffirmed in State v. Bailey, 284 Md 143, 422 A2d 1021 (1980).

Because we agree with defendant’s contention that the order authorizing this wiretap did not conform to the statutory requirements, these conversations were intercepted unlawfully, and the conversations and all evidence derived therefrom must be suppressed. ORS 133.735.5 We think strict adherence to the statute is the correct standard to govern district attorneys in drafting affidavits and orders and judges in scrutinizing such orders before authorizing a wiretap. We may leave to another day the question of whether a minor shortcoming in drafting would require the remedy of suppression when the order omits no essential element and the shortcoming in the order had no consequence in the actual execution of the order.

We affirm the Court of Appeals.

Roberts, J., concurred and filed an opinion. Peterson, C. J., dissented and filed an opinion. Jones, J., dissented and filed an opinion in which Carson, J., joins.

We limited our review of the issues raised by the parties to the legality of the telephone interceptions. We put the word “standing” in quotation marks because it is the wrong word. A defendant always has standing to object to evidence to be used against him at his trial. The issue is not whether he has “standing” but whether the statute contemplates suppression of all unlawfully intercepted evidence or only if its interception was unlawful as to him.

The state appealed this ruling, which was affirmed by the Court of Appeals. State v. Tucker, 62 Or App 512, 662 P2d 345 (1983). We denied the state’s petition for review.

This order initially included another paragraph, which the judge deleted:

“That periodic reports to the judge showing what progress has been made toward the achievement of the authorized objective and the need for continued interception_required at_intervals.” We note that judicial supervision of a wiretap is made permissible by the statute, and thus the judge was within the law in deleting this provision, even though it is a recommended safeguard.

In the present case defendant concedes that all conversations that he participated in could have been intercepted if there had been a proper order, but he argues that he is an “aggrieved party” under ORS 133.735(1) for purposes of challenging the lack of minimization of the conversations of other people. The state argues that he only has “standing” to challenge the state’s failure to minimize conversations to which he was a party and cannot rely on the invasion of the rights of other people. Federal caselaw generally supports the state’s position. United States v. Ramsey, 503 F2d 524, 532 (7th Cir 1974), cert den, 420 US 932 (1975), United States v. Poeta, 455 F2d 117 (2nd Cir), cert den, 406 US 948 (1972). One federal court reached the opposite conclusion. It held on a motion to suppress that a person in defendant’s position could challenge the lack of minimization of the wiretap based on the interception of conversations in which he did not participate. United States v. Scott, 504 F2d 194 (DC Cir 1974). Following defendants’ convictions, the United States Supreme Court also considered their case, but found it unnecessary to decide this question and declined to address it. Scott v. United States, 436 US 128, 135, n 10, 98 S Ct 1717, 56 LEd2d 168 (1978).

We do not reach the question of whether ORS 41.910 would also require the suppression of this evidence.