CITY MUST EXPLAIN 'TRAP AND TRACE' OR CONCEDE IT'S ILLEGAL, JUDGE SAYS

Portland Has To Decide Whether To Disclose How Its Marijuana Force
Traced Calls To Identify 20 Defendants Now Facing Charges

Portland must either disclose how its Marijuana Task Force used a
"trap and trace" procedure to identify 20 defendants now charged with
manufacturing the drug or it must concede that the practice was
illegal, a judge ruled Tuesday.

Multnomah County Circuit Judge Michael Marcus decided the defendants
facing marijuana charges that resulted from a police trap and trace
method have the right to examine the information that led officers to
them and use it in their defense.

Marcus gave the city until March 29 to announce how it will proceed.
Deputy City Attorney David N. Lesh and Deputy District Attorney Jason
Feldman said they needed time to consult with their bosses.

Marcus, who has seen the police documents on the phone tapping used to
track down suspected marijuana growers, said it was plausible that the
actions were legal, but he said the defendants have a right to
challenge them.

"The trap and trace materials the defense seeks to obtain and the city
seeks to protect are clearly necessary to determine the lawfulness of
trap and trace evidence," Marcus said. "The defendants who are in fact
here because of a trap and trace lead are entitled to have that litigated."

According to documents the city provided the court, Portland's
Marijuana Task Force has been trapping the phone of a Portland
indoor-growing supply store, American Agriculture, since at least
1995. Police used the business' phone records to track down suspected
marijuana growers by using callers' phone numbers to obtain their addresses.

Two additional defendants joined the case Tuesday, bringing the total
to 20 who are demanding to review police and court documents to
determine if the trap and trace procedure is legal.

Defense lawyer Philip A. Lewis, who represents two of the defendants,
said he thought Marcus' decision was fair.

Feldman, after court, stood by the legality of the trap and trace
procedure and said he was not surprised by Marcus' ruling.

"Ultimately, I think it's going to be proved to be legal," he
said.

If the city refuses to reveal the phone-trapping information and will
not concede the practice is illegal, it also could dismiss the cases
or seek an immediate appeal of Marcus' ruling that would take the
proceedings to the Court of Appeals before the cases proceed.