PASSING THE SNIFF TEST

Accused pot growers scored a minor victory Tuesday, March 16, when a
Multnomah County judge ordered the Portland city attorney to reveal
the details of secret police surveillance of a Southeast Portland business.

Circuit Court Judge Michael Marcus' decision came in response to
motions filed by 16 defense lawyers who say their clients were
illegally investigated by the Portland Police Bureau's Marijuana Task
Force. Police used a trap-and-trace device for at least three years to
record the numbers of all incoming calls to American Agriculture,
which sells indoor growing equipment. Police used those phone numbers
to target potential suspects for investigations ("Knock, Knock, You're
Busted," WW, March 10, 1999).

Defense lawyers contended that the trap and trace was illegal--an
argument Judge Marcus wasn't ready to buy. "It is perfectly plausible
that all of the trap-and-trace evidence was lawfully obtained," Marcus
said. Nonetheless, he agreed that in order to properly represent their
clients, the lawyers are entitled to see the evidence they seek to
challenge.

Defense lawyers were pleased with the decision. "The camel's nose is
under the tent," defense lawyer Philip Lewis said after the hearing,
noting that Tuesday's ruling was the first step in getting charges
against their clients dismissed.

But it's not time to light a celebratory joint yet.

The city, which is fighting the release of the documents, was given a
March 29 deadline to decide what to do. City officials have four
options, none of which is any guarantee of victory for the defense.

First, the city can appeal the ruling directly to the state Supreme
Court.

Second, it can comply with the order and release the documents. But
even if the defense lawyers can prove the trap and trace was illegal,
the law doesn't necessarily require that the illegally seized evidence
be thrown out.

Third, the city can concede, for argument's sake, that the trap and
trace was illegal. Again, the defense lawyers would still have to
convince a judge that their clients' cases should be thrown out.

Finally, the city can ask the district attorney to dismiss the cases
against the defendants. This seems unlikely because the police have
been using the device for at least three years, so other marijuana
defendants are likely to make similar arguments. "I imagine if this is
successful, people would come out of the woodwork," says Deputy
District Attorney Mark McDonnell.