dissenting.
In this case, we deal with the statute set forth in the majority opinion. If the district attorney had drafted the order with the precise words of the statute, this case would not be before us. The case was lost by the state because the majority *293says the wiretap order was legally facially defective in four particulars:
(1) It failed to include a minimization clause;
(2) It failed to include a termination clause;
(3) It failed to include an immediate execution clause; and
(4) It failed to specify the defendant as a person whose communications were to be intercepted.
To cure these defects, the district attorney would only have had to amend the order of the court as follows:
“Therefore, it is ORDERED that:
“1. The interception of telephonic communications of Mindi Tucker and Craig Pottle 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 and Craig Pottle 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;
“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 first obtained [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;
“0 *****
“7. The application, this order, all supporting documents and testimony in connection herewith shall remain confidential in the custody of the court and these *294matters 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.
“8. The authorization to intercept shall be executed as soon as practicable, and 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 tensions generated by the competing goals of crime control and the protection of the right to privacy are most pronounced in the wiretap context and this is the first time this court has considered the interpretation of our wiretap statutes which were amended in 1979. These statutes were adopted to bring Oregon’s wiretap provisions in line1 with the federal standards in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC §§ 2510-20 (1976).
In Scott v. United States, 436 US 128, 130, 98 S Ct 1717, 56 L Ed 2d 168 (1978), the Supreme Court of the United States commented:
“* * * In this Act Congress, after this Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right *295of individual privacy. See generally S. Rep. No. 1097, 90th Cong., 2d Sess. (1968).”
I believe the Oregon legislature sought the same goals in adopting this state’s wiretap statutes.
THE MINIMIZATION ISSUE
In attacking the face of the order, the defendant contends that the order signed by the trial court was defective because it failed to include a minimization clause as provided in ORS 133.724(5):
«* * * Every order and extension thereof shall contain a provision that the authorization to intercept * * * shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception * * *.”
The statute does not specify how minimization should be ordered. Neither Title III of the federal act nor ORS 133.724(5) makes further mention of the minimization requirement, thereby leaving to the courts the task of supplying content to the term. The legislative history as recorded by the Oregon Senate Committee on the Judiciary merely tracks the language of 18 USC § 2518(5), adding that the provision was intended to recognize that each case must rest upon its own facts. S Rep No 1097, 90th Cong, 2d Sess, 103 (1968). The kinds of facts upon which the determination must rest, however, remain a legislative secret. Note, Minimization of Wire Interception: Presearch Guidelines and Postsearch Remedies, 26 Stan L Rev 1411 (1974). Because we are interpreting an Oregon statute, albeit with identical terms as the predecessor federal statute, we can write from a clean slate. The federal cases interpreting the minimization clause may be instructive, but they certainly are not binding on this court.
Contrary to the defendant’s contention and the majority opinion, the order in this case did contain a minimization clause. Section 3 of the order states:
“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 insurance proceeds she expects to collect.” (Emphasis added.)
*296The plain meaning of “are limited to” makes clear that other interceptions are forbidden by the order. If the wiretap in this case remained within the confines stated in section 3 of the order, minimization would have been achieved because the only intercepted calls would have been communications of Mindi Tucker relating to the murder of Christopher Tucker or the distribution of the insurance money. Similar to its federal counterpart, ORS 133.724(5) does not require that the order explain how minimization is to be achieved; it requires only that the order assert that there shall be minimization.2
Federal courts considering this issue have reached the same result. See, e.g., United States v. Kahn, 415 US 143, 94 S Ct 977, 39 L Ed 2d 225 (1974); United States v. Vento, 533 F2d 838, 860-62 (3rd Cir 1976); United States v. Cirillo, 499 F2d 872, 879 (2nd Cir), cert den 419 US 1056 (1974); United States v. Rizzo, 492 F2d 443, 446 (2nd Cir), cert den 417 US 944 (1974); United States v. Manfredi, 488 F2d 588, 598 (2nd Cir 1973), cert den 417 US 936 (1974); Losinno v. Henderson, 420 F Supp 380, 384-85 (DC SD NY 1976).
TERMINATION
ORS 133.724(4) (e) provides:
“Each order authorizing or approving the interception of any wire or oral communication shall specify:
* * * *
“(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 * * (Emphasis added.)
The order totally complies with this statute. The order responds to the statute by stating that the period of intercept will not automatically terminate when the described communications are received. The order contained the term “received” instead of “first obtained,” but these words in *297context mean the same thing. There are obvious, valid reasons to continue the interception after the first admission of guilt is heard. Any experienced police officer or prosecutor knows that corroborating statements to back-up an initial admission can be vital. The majority completely misses the point on this assignment of error, by confusing ORS 133.724(4) (e) with ORS 133.724(5) which provides that the intercept “must terminate upon attainment of the authorized objective, or in any event in 30 days.” Can we overturn this murder conviction because the order did not contain the supposed magical legal words “must terminate upon attainment of the authorized objective”? Granted, all concerned with upholding the law would heave a legal sigh of relief if the prosecutor or the trial judge had inserted that statutory incantation. But what does that phrase protect? What is its purpose? The order already provided for a limited listening period of only 15 days unless extended following procedures dictated by statute. The facts in this case reveal what happens in real life rather than in legal fiction. The moment the police felt they had intercepted enough information to attain their authorized objective, they voluntarily terminated the wiretap and arrested the defendants. They were already restricted by order to intercept only pertinent calls concerning the murder. If that objective was obtained within the 15-day period authorized by the court, is it realistic, even if one suffers from an acute Orwellian complex3 that “big brother,” in this case the Washington County Sheriffs Department, would provide around-the-clock personnel and equipment to intercept and to record calls for no conceivable purpose. Keep in mind, there is already a restriction in the order to record only pertinent calls. If non-pertinent calls are intercepted, that action violates the provision in ORS 133.724(5) which provides that the intercept “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” The order in this case prohibited non-pertinent calls of Mindi Tucker as previously discussed in this dissent. The *298order clearly limited the intercept to telephone communications of Mindi Tucker that were made or received on the described telephone which pertained to the murder of Christopher Tucker and the intended distribution of $75,000 insurance proceeds she expected to collect. So what is left? If the time of intercept is restricted to 15 days with authorized extensions, if the calls must still be pertinent, how could the police intercept unauthorized communications after attainment of the authorized objective? The answer is, they cannot. Any other answer defies logic and experience. I challenge the majority to point out one example where communication can be intercepted within 15 days after the attainment, and I assume this means full attainment, of the authorized objective, and still be pertinent. If the call is still pertinent, the full objective obviously has not been obtained. These are complementary terms. To say that the failure to provide such superfluous words in an order is fatally defective exalts form over the purpose of the statute. The purpose of the statute is to protect privacy. What privacy right has been violated by the scrivener’s error in leaving out this redundant expression? I submit there is none.
EXECUTION AS SOON AS PRACTICABLE
The statute, ORS 133.724(5), also contains a requirement that the order contain a provision that “the authorization to intercept shall be executed as soon as practicable.” The purpose of the “immediate execution” provision is to prevent probable cause and other information upon which the order is based from becoming stale or inaccurate. S Rep No 1097 at 2192, supra. Implicit in section 5 of the order, which states in part that “[t]his order will remain in effect for a period of 15 days from the date hereof,” is the necessity of quick execution of a wiretap of short duration. The effective date is the date of the order; the order’s short duration, one-half of the permissible statutory maximum, tacitly requires that the order be executed promptly. The time had already begun running against the investigators. The necessity implicit within the constraints of the order is an appropriate assurance of immediate execution consistent with the goal that the law seeks to achieve.
On the federal level, the omission of the directive has been viewed as immaterial if the officers complied with its *299demands. United States v. Baynes, 400 F Supp 285, 305 n 35 (DC ED Pa), aff’d mem 517 F2d 1399 (3rd Cir 1975).
The order substantially complies with the requirements of ORS 133.724(5) in that the short duration of the initial order was tantamount to requiring immediate execution, the 15-day limit with subsequent appearance before the authorizing judge assured as best as possible without judicial supervision that the order would terminate upon attainment of the authorized objective, and the order’s limit on which communications were to be intercepted was sufficient to assert the required minimization.
In United States v. Vento, 533 F2d 838 (3rd Cir 1976), the order contained no provision that the order “be executed as soon as practicable.” That court treated the omission as a “minor facial invalidity” and upheld the interception. Id. at 860-62.
In the case at bar, the intercept order was executed on December 17,1980. The intercept was commenced December 18, 1980. Again, I challenge the majority to demonstrate how this defendant’s right to privacy has been invaded by this minor legal omission of precise statutory words.
FAILURE TO NAME POTTLE IN ORDER
ORS 133.724(4) (a) requires that the order specify “[t]he identity of the person, if known, whose communications are to be intercepted.”
Defendant claims that ORS 133.724(4) (a) requires that he be named in the order because the application for the order alleged he was part of a conspiracy for which the wiretap was sought. The findings in the initial order authorizing the wiretap read as follows:
“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 interception of telephonic communications of Mindi Tucker and Craig Pottle. The sworn application was supported by affidavits.
“That this Court FINDS from the application and supporting affidavits and statements that:
*300“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.”
Although paragraph 2 of the findings refers to Pottle, it appears quite clear from paragraph 1 that the prime suspect was Mindi Tucker. The affidavits raised the desirability of intercepting phone calls between Mindi Tucker and Craig Pottle. The trial court found from the application and supporting affidavits, only 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.” The investigators may have had suspicions about Craig Pottle’s involvement. The district attorney’s application stated that Pottle “is either an accomplice to the murder or [he] would be a hostile witness * * However, no assertion was made that there was probable cause that Pottle was engaged in the criminal activity under investigation and therefore must be named in the order. As Mindi Tucker’s boyfriend, his conversations possibly would be helpful and relevant whether or not he actually participated in the crimes.
The proposition that Pottle must be named in the order because there was a likelihood that he would be overheard was expressly rejected in United States v. Donovan, 429 US 413, 427 n 15, 97 S Ct 658, 50 L Ed 2d 652 (1977). Donovan made it clear that “a wiretap application must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under *301investigation and expects to intercept the individual’s conversations over the target telephone.” Id. at 428. There is no requirement to name other potential witnesses or defendants. United States v. Kahn, 415 US 143, 94 S Ct 977, 39 L Ed 2d 225 (1974). The application for the wiretap order named Pottle and fully informed the judge of his relevance to the investigation; it met the requirements and purpose as explained in Donovan, 429 US at 426-27.
Even if the application showed probable cause as to Pottle’s participation in the murder of Christopher Tucker and required that he be named in the order, Donovan concludes that a failure to include a person targeted for interception does not render the authorization order facially insufficient:
“* * * If, after evaluating the statutorily enumerated factors in light of the information contained in the application, the judge concludes that the wiretap order should issue, the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization. * * * [A]nd the failure to name additional targets in no way detracts from the sufficiency of those factors.” Id. at 435.
The sufficiency of statutorily enumerated factors are not seriously challenged in this case. The investigation centered on Mindi Tucker. The district attorney’s affidavit states:
“(c) I have reasonable grounds to believe that one Mindi Marie Tucker committed, conspired to commit or aided and abetted in the commission of the crime of murder in the killing of her husband, Christopher Tucker.”
Although Pottle’s complicity was suspected, Mindi Tucker was the one upon whom the investigation was centered. The telephone was in her residence.
Even if Pottle’s complicity were known, the order does refer to Pottle in paragraph 2 of the findings quoted above at page 11. Adding Pottle’s name to the order would not have altered the scope of the permissible interceptions. On the basis of the affidavits, the court found that there was probable cause to believe that “Mindi Tucker committed, aided and abetted,” and that it was not unreasonable for the court to list *302only her name under the requirement of ORS 137.724(4)(a). Under Donovan, the order would be deemed facially valid; we should reach the same conclusion under the Oregon statute.
One final word on this subject, what is the purpose of naming persons in the order? Is not the real purpose of specifically naming “probable cause” suspects to give that person a civil cause of action under the statute if that person’s rights have been violated? Or, is it merely to alert the judge signing the order who is involved to avoid any conflict of interest? Perhaps it is to aid the police in identifying callers, but presumably they already know the prime suspects. Once again, I challenge the majority to explain some rational reason for the provision and why the provision is so important in protecting one’s right to privacy.
I submit the order was not defective in failing to name Craig Pottle, nor was it facially invalid in light of any of the above challenges.
MINIMIZATION EXECUTION
Because the majority found the order of interception to be facially invalid, that opinion did not address the merits of the intercept. I choose to do so, to demonstrate the error made by the majority in reversing this case on legal technicalities which have no relevance to the privacy rights of this defendant.
In the murder case against Mindi Tucker, the trial judge found that there was no attempt made to minimize the 958 wiretap interceptions and that a substantial portion of the intercepted communications was beyond the scope of the order. Of the 958 calls on that phone over a 30-day period, 461 involved calls to or from Tucker, and the balance did not involve Tucker or Pottle nor any aspect of the crime. The trial court suppressed all of the intercepted conversations in her case. The state appealed this ruling, which was affirmed by the Court of Appeals. State v. Tucker, 62 Or App 512, 622 P2d 345 (1983). We denied the state’s petition for review. Although a denial of a petition for review is not a decision of affirmance, it is obvious that the trial court and the Court of Appeals were correct in suppressing the evidence in the Tucker case for violation of the court’s order which required minimization. *303Since the appeal, the case of State v. Mindi Tucker has been dismissed by the prosecution.
Commentators recite that there are four separate procedures to minimize the interception of communications: Extrinsic, intrinsic, dual recorder and after-the-fact. See, e.g., Fishman, The ‘Minimization’ Requirement in Electronic Surveillance: Title III, The Fourth Amendment, and the Dread Scott Decision, 28 Am U L Rev 315, 326 (1979).
Extrinsic minimization limits the time period during which monitoring is conducted. Here, the court limited the time to 15 days, with two extensions. The wiretap started December 17, 1980, and terminated with the defendant’s arrest on January 15,1981.
Intrinsic minimization attempts to screen out non-pertinent conversations while they are taking place. There are two variations: The first requires monitoring officers to make a reasonable effort to avoid both listening to and recording non-pertinent conversations.4 See, United States v. Turner, 528 F2d 143, 156 (9th Cir 1975). The second variation involves listening to every conversation, but recording only pertinent conversations. Obviously, both variations have serious defects.
As to the first variation, when a wiretap is being executed, the listener often does not know whether a conversation contains the evidence he is seeking until after he has heard it in its entirety. Unless a monitor has a magic crystal ball, how is he or she to guard against the fact that a conversation which appears innocent at first may later turn to a discussion of criminal activity. United States v. Armocida, 515 F2d 49, 53 (3rd Cir 1975). Further, to require minimization of every conversation that is not obviously and immediately relevant would be an open invitation to criminals to *304escape detection by the simple means of devoting the initial part of each call to non-criminal matters.
The second variation may violate the federal law. In United States v. Clerkley, 556 F2d 709, 718 (4th Cir 1977), the monitors listened to all conversations, but recorded only pertinent portions of the calls. That federal court expressed concern that such a procedure might violate § 2518(8) (a) (1976), which requires that the contents of intercepted communications “shall, if possible, be recorded on tape * * * in such a way as will protect the recording from editing or other alterations.” One can imagine the dilemma of a federal prosecutor reading Clerkley, after considering United States v. Daly, 535 F2d 434 (8th Cir 1976), which suggests that not only is the recording of spot checks not required, but also that complete recording might violate the minimization provision. The prosecutor in the case at bar admitted he had not read any federal cases on wiretapping before ordering full recording. However, if he had, perhaps he still would not have known what to do.
The third procedure suggested for minimization is dual recorder minimization. Dual recorder minimization utilizes two tape recorders. Monitors follow intrinsic minimization by listening and recording on one tape recorder only when they think a conversation is, or is about to become, pertinent. A second recorder, the speaker of which is disconnected, records every conversation in full. This second tape is never played back. Thus, the monitors hear only what they are recording on the first recorder.
The fourth procedure is after-the-fact minimization:
“After-the-fact minimization involves recording every conversation and then restricting disclosure of nonpertinent conversations by transcribing only pertinent conversations, or by re-recording only pertinent conversations and then sealing the original tapes.” Fishman, supra, 28 Am U L Rev at 329.
See, United States v. Bynum, 475 F2d 832, 837, aff’d 485 F2d 490 (2nd Cir 1973), vacated on other grounds 417 US 903 (1974), aff’d 513 F2d 533 (2nd Cir), cert den 423 US 952 (1975); State v. Dye, 60 NJ 518, 528-29, 291 A2d 825, 830, cert den 409 US 1090 (1972).
*305Although a dissenting opinion cannot be decisive, it may be informative. In this light, I believe the dual recorder minimization technique is the best approach for law enforcement officers to utilize in attempting to resolve this most vexing criminal procedure problem. Of course, as mentioned, each case will require separate evaluation.
The companion case of State v. Tucker, 62 Or App 512, 622 P2d 345 (1983), was not blessed with any segregation of pertinent versus non-pertinent interceptions, and the failure to minimize resulted in suppression. However, in this case against Pottle, we have an entirely different situation. Pottle and Tucker engaged in only 15 calls over the 30-day period authorized by the court. All of the communications were relevant to the specified crimes. None of them could have been further minimized using any of the four approaches listed above. Any officer who would have attempted to reduce those calls to spot checks would have been foolish indeed.
Professor James G. Carr has stated in his massive compendium on The Law of Electronic Surveillance 262 (1983):
“Where interception occurs over the telephone or at the premises of one person without the eavesdropper’s compliance with the minimization requirement, other persons whose conversations are overheard over that phone or at those premises may not have standing to suppress their intercepted conversations on the basis that the officers disregarded the minimization requirement. But where the conversations involve the criminal endeavor under investigation, they are properly overheard, and thus no minimization violation occurs as to them. Any general minimization violation affects the subscriber to the telephone service, possessor of the premises, or other target of the surveillance. It has been suggested, however, that all persons who are overheard have standing to participate in a hearing to review the officers’ procedures and practices. If minimization did not occur, the suppression remedy will still be limited to those persons affected directly by such failure, i.e., residents of the premises, primary users of the telephones, and targets of the surveillance.” (Footnotes omitted.)
See, United States v. Scott, 164 US App DC 125, 128, 504 F2d 194, 197 n 5 (1974); United States v. Ramsey, 503 F2d 524, 532 *306(7th Cir 1974), cert den 420 US 932 (1975); United States v. Poeta, 455 F2d 117, 122 (2nd Cir), cert den 406 US 948 (1972).
There is no doubt that Pottle had standing to participate at the hearing to review the officers’ procedures and practices, but he has no complaint that his right to privacy was invaded. See, e.g., United States v. Alderman, 394 US 165, 89 S Ct 961, 77 L Ed 2d 176 (1969); United States v. Giordano, 394 US 310, 89 S Ct 1164, 22 L Ed 2d 296 (1969).
Surely the subscriber of the phone, Tucker’s roommate, had her privacy invaded. She made many personal non-pertinent calls over that phone during that 30-day period. But she has a very effective civil remedy for that invasion. ORS 133.739 provides in pertinent part:
“(1) Any person whose wire or oral communication was intercepted, disclosed or used in violation of ORS 133.724 or 133.737 shall have a civil cause of action against any person who wilfully intercepts, discloses or uses, or procures any other person to intercept, disclose or use such communication and shall be entitled to recover from any such person:
“(a) Actual damages but not less than damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is greater; [and]
“(b) Punitive damages; * *
For example, in Jacobson v. United States, 592 F2d 515 (9th Cir 1978), the state court order to tap the Kings Castle Hotel and Casino in Nevada was held to be illegal. A call from Jacobson was intercepted and he brought a class action against the telephone company, the police, the district attorney, the sheriff, etc. First, the court held that the telephone company was liable though none of its employes listened, 18 USC § 2510(4); and, second, $1,000 in statutory damages were awarded against each defendant, totalling $12,000, as well as $12,000 in attorney fees, 18 USC § 2520.
As to Tucker, her hundreds of non-relevant, non-pertinent calls were not minimized and she received the legal remedy of complete suppression. However, Pottle, even though his conversations were intercepted, has no right to suppression of any of his conversations with Tucker. He was not the subscriber of the phone, nor did he live on the premises or regularly use the phone. He, in fact, never made a call from *307the tapped phone. No call was privileged. He had nothing to do with the other calls and he could have cared less. There were no private non-pertinent messages in any of his calls. In every call he used gross street language, haranguing Tucker to hurry up and get the insurance money. There is no statutory language, nor any legal logic to throw a vicarious cloak of privacy over such a crime partner under the facts in this case.
In the controversial case5 of Scott v. United States, 436 US 128, 98 S Ct 1717, 56 L Ed 2d 168 (1978), the Supreme Court ruled that in some circumstances monitoring officers can knowingly and wilfully ignore the minimization provision of Title III altogether. Scott involved successive wiretaps on the home telephone of Geneva Jenkins with whom Bernis Thurmon, a suspected participant in a narcotics importation and distribution network, was then living. Each warrant contained a minimization clause. Every one of the 384 calls occurring during 30 days of monitoring was overheard and recorded in full. The defendants moved to suppress the conversations and derivative evidence on the ground that the monitoring agents had failed to minimize the interception of non-pertinent conversations.
The Supreme Court considered two separate issues: (1) whether the government’s failure to make any effort to minimize the interception of non-pertinent conversations automatically rendered the interceptions unreasonable under the Fourth Amendment and violative of the minimization provision of Title III; and (2) whether the total interception of each of the 384 calls, if not a per se violation, was “reasonable” under the particular circumstances in Scott.
Justices Rehnquist, Stewart, White, Blackman, Powell and Stevens rejected the defendant’s contention that failure to make good faith efforts to comply with the minimization requirement was, in itself, violative of the Fourth Amendment or Title III. Adopting the government’s viewpoint, the Court held that in ruling on suppression motions, courts should make an objective evaluation of monitoring agents’ actions in light of the circumstances confronting them at the time to determine whether a statutory or constitutional *308violation has occurred. The Court observed that subjective intent alone does not transform lawful conduct into an illegal or unconstitutional act. Subjective intent may be relevant to the deterrent purposes of the exclusionary rule in Fourth Amendment litigation only after a statutory or constitutional violation has been established. In Scott, the Supreme Court of the United States upheld the defendant’s conviction.
Here, in the companion case of State v. Tucker, 62 Or App at 518-19, Judge Buttler, writing for the Court of Appeals, carefully distinguished Scott. We are not concerned in this case with the objective or subjective intent of the officers. The district attorney ordered the officers to intercept and record all the conversations, and the officers never saw the court’s order. We are concerned with the issue raised, but not decided, in Scott.
“The Government * * * renews its argument that petitioner Scott does not have standing to raise a minimization challenge based upon the interception of conversations to which he was not a party. To permit such a challenge would allow Scott to secure the suppression of evidence against him by showing that the rights of other parties were violated. This, argues the Government, would contravene well-settled principles of Fourth Amendment law.
“Given our disposition of this case we find it unnecessary to reach the Government’s contention regarding the scope of the suppression remedy in the event of a violation of the minimization requirement. We also decline to address the Government’s argument with respect to standing. The Government concedes that petitioner Thurmon was party to some nonnarcotics-related calls and thus has standing to make the arguments advanced herein. Thus, even if we were to decide that Scott has no standing we would be compelled to undertake the decision of these issues. If, on the other hand, we were to decide that Scott does have standing, we would simply repeat exactly the same analysis made with respect to Thur-mon’s claim and find against Scott as well. In this circumstance we need not decide the questions of Scott’s standing.” Scott v. United States, 436 US at 136 (citations omitted).
I conclude that Pottle, as a person subject to electronic surveillance, had standing to challenge any intercepted conversations of his own with Tucker. Had some of those calls *309been noncrime-related or privileged, he would have an arguable complaint about lack of minimization. However, since none of his conversations could have been minimized, he has suffered no invasion of his right to privacy.
Justice Roberts writes in her concurring opinion that the intent of the statute “is to cut off the wiretap at the earliest possible time.” Where does this alleged intent come from? Who said it, where and when? The statute says the intercept must terminate “upon attainment of the authorized objective.” It says nothing about terminating “at the earliest possible time.”
The example of a supposed violation of the wiretap execution set forth in the concurring opinion is most unfortunate, for it may send a false message to those involved in electronic surveillance. The concurring opinion reads:
“* * * Even after they had gained sufficient evidence to arrest Tucker and Pottle the police continued the intercept; the officers came to Tucker’s house, informed her of Pottle’s impending arrest and then recorded her attempted call to Pottle in response. * * *” 296 Or at 291.
Is this suppose to be an example of illegal execution? The majority opinion does not even address the execution issue. The majority solely attacks the face of the order. Let us assume we have a perfectly valid wiretap order with a clause that the intercept “must terminate upon attainment of the authorized objective.” Is the concurring opinion suggesting that the intercept must terminate as soon as the first admission is made by one of the co-conspirators, when the first arrest occurs, when a prima facie case has been established or when proof beyond a reasonable doubt is obtained? The answer should be clear that the intercept can continue until the time limit expires or until the full objective has been obtained. Obviously, many highly incriminating statements can and do occur after the arrest of one of the conspirators. So long as the calls remain pertinent there is no legal reason to cut off the intercept. I cannot imagine this court reversing this conviction (if the order was valid on its face) because the police, in executing the order, continued to intercept an arrested co-conspirator’s call to the murderer to tip him off that the police were closing in on him.
*310To sum up, first the order contained a clearly expressed minimization clause. Second, the order was limited to 15 days with legal extensions and the tap was in fact terminated upon attainment of the authorized objective. Third, the 15-day limitation in the order required immediate execution and execution commenced within 24 hours from the date of the order. Fourth, there was no need to name Pottle in the order. He was named in the application and the order was not directed to tap his phone or any phone he used.
What a pity that this conviction must be set aside with a 4-3 vote absent any violation of Craig Steven Pottle’s privacy rights.
The Court of Appeals should be reversed and the trial court judgment affirmed.
Peterson, C.J., joins in this dissenting opinion as set out in his separate dissenting opinion; Carson, J., joins in this dissenting opinion.The legislative history accompanying the state act relating to interception of communications, Or Laws 1979, ch 716, makes clear that the purpose of Senate Bill 484 (that became ch 716) was to conform Oregon law to federal law. See Minutes, Senate Committee on the Judiciary, Tape 60, Side 1 (June 25, 26, 1979). The legal counsel to the Judiciary Committee, Ms. Godwin, stated before the House committee that the Oregon wiretap statute preceding ORS 133.724 was repealed because it was not in compliance with federal law. Law enforcement officers had to use the federal statute standards because the federal statute was stricter than the Oregon law at that time. Senate Bill 484, according to Ms. Godwin, codifies the federal law. Minutes, House Committee on the Judiciary, Tape 103, Side 1, 1:30 p.m. session (June 30, 1979).
“Section 2518(5) and its state counterparts [herein ORS 133.724(5)] contain no requirement that the minimization directive be more than a general instruction to minimize the interception of nonpertinent calls. * * *” Carr, Law of Electronic Surveillance § 4.07[5][b], 207 (1977).
“Congress considered and rejected the proposition that electronic surveillance would necessarily lead to ‘excessive invasions of privacy and a Big Brother Society,’ S. Rep. No. 1097,90th Cong., 2d Sess. 66, reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2238. * * *” Goldsmith, The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance 3 (1983), referring to George Orwell, Nineteen Eighty-Four 4 (1949).
“* * * For example, a monitor should either not listen to, or only spot check, a conversation between spouses concerning intimate family matters [not done in Pottle]; [but] he should, however, listen to and record in full a conversation between identified participants in the criminal scheme under investigation [done in Pottle]. * * *” Fishman, The ‘Minimization’ Requirement in Electronic Surveillance: Title III, The Fourth Amendment, and the Dread Scott Decision, 28 Am U L Rev 315, 324-25 (1979).
It has been referred to by one commentator as the “Dread Scott Decision,” Fishman, supra at n 4, 28 Am U L Rev at 330-31.