RULING MITIGATES IILEGAL PHONE TAPS

A Multnomah County judge ruled Tuesday that he would not throw out
evidence against 51 accused marijuana growers even though police
learned of them through unlawfully traced telephone calls.

Circuit Judge Michael Marcus said the issue was whether the Portland
Police Bureau's Marijuana Task Force exploited the unlawful
information to make arrests. He used the analogy of a suspect who
gives police information about a murder while officers beat him. The
beating is illegal and the direct information that comes of it might
not be used in court, but that doesn't mean that police cannot
investigate the murder and use subsequent legal evidence to prosecute.

In this case, Marcus said other police investigation between the time
police obtained the telephone records until they made the arrests
lessened the damage from the unlawful search. They examined utility
records for unusually high usage from marijuana-grow lights and
conducted "knock and talks" in which police would ask for permission
to search a residence for evidence of growing.

In addition, Marcus said police did not exploit the information
because they merely told residents they had information of possible
marijuana growing, but did not say the reason was because the suspects
had called an indoor growing-supply store in Southeast Portland.

Phone Tap Ruled Illegal

Marcus ruled Aug. 2 that the "trap and trace" of American Agriculture's
phone line was illegal because police did
not have probable cause to think that a conspiracy to manufacture
drugs existed between the indoor-growing store and marijuana growers.
Police could get only one person to give them information despite
trying to get hundreds of growers to cooperate.

Police first obtained a secret court order for a "trap and trace" on
the telephone of American Agriculture in 1995. The trace provided
police with the phone numbers of people who called the store. Police
said the primary objective was to build a case against American
Agriculture, but a side benefit was learning of individual growers.

Marcus' ruling Aug. 2 that the trap and trace was illegal has not
changed the way the task force operates, said Capt. James Ferraris of
the Drugs and Vice Division. Two other judges had approved orders for
the trap and trace before Marcus ruled it illegal.

"Judge Marcus is obviously entitled to his opinion, but his opinion is
in conflict with his peers," Ferraris said Tuesday.

Phil Lewis, an attorney for one of the defendants, said Tuesday that
he respected Marcus' ruling, but it gives police no incentive to obey
the law.

Prior Rulings Termed Unclear

"It's a wrong without a remedy," Lewis said.

However, Jason Feldman, a deputy district attorney, said suppressing
the evidence was an extreme remedy that wasn't warranted in this case,
especially because officers acted in good faith.

Marcus also indicated frustration that prior appellate rulings on the
issue of exploitation were unclear.

However, the issue probably will be appealed, and at least one
appellate judge has indicated that the 1981 case that prosecutors
relied upon may no longer rule. In a ruling in a 1994 case, Oregon
Supreme Court Justice Michael Gillette wrote that the analysis of the
1981 case was so suspect that he advised lawyers and judges not to
rely on it.
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You can reach David Anderson at 503-294-7663 or by e-mail at
DavidAnderson@news.oregonian.com.