DEFENSE LAWYERS WANT POLICE TO DISCLOSE TASK FORCE'S WAYS

Portland's Marijuana Task Force is questioned about a phone tapping
and address tracing procedure that could be illegal.

By David R. Anderson of the [Portland] Oregonian staff

Defense lawyers are demanding to know whether Portland police
illegally used a "trap and trace" to secretly provide the Marijuana
Task Force with the phone numbers of everyone who called a Portland
indoor-growing supply store.

The information came to light when a criminal defendant, who is
charged with posing as a police officr, taped a phone conversation
with an officer on the task force, according to documents the city
provided the court.

Police used phone records to track down suspected marijuana growers by
obtaining the addresses from the phone numbers, checking to see if
they were using enough electricity to sustain a grow operation, then
knocking on their doors in so-called "knock and talks," according to
the transcript of the conversation. Police have been trapping the
phone of American Agriculture at 9220 SE Stark Street since at least
1995, according to the document.

It is a case that defense lawyers say could affect hundreds of
marijuana grow cases in Portland and beyond if a judge rules the trap
was illegal and evidence obtained as a result must be thrown out of
court. In addition, hundreds of thousands of dollars in drug
forfeiture assets that officers seized might be up for grabs.

"The implications of this are tremendous," said Phillip A. Lewis, an
attorney representing one of the defendants.

Lewis also said the information adds to concerns about the task force
acting at the fringes of the law or beyond in pursuing marijuana
growers --- and the forfeiture money that comes along with it.

"I think that it is of great concern when we have a section of the
police department acting seemingly with a great deal of independence
and disregard for the law," Lweis said.

But law enforcement officials say they are confident that they will
win in court and defended the task force.

"I would in no way characterize the Marijuana Task Force as
over-zealous," said Capt. James Ferraris, who heads the Portland
Police Drugs and Vice Division.

The city and Police Bureau do not acknowledge the trap exists. If it
does, they say it is legal.

"I believe in my heart of hearts they have done nothing illegal," said
David Lesh, a deputy city attorney.

But even if the traps violated state law, further evidence gathered in
the cases would be admissible because police either had independent
evidence of marijuana growing or the defendants gave permission for
police to search their homes, said Mark McDonnell, a Multnomah County
senior deputy district attorney who heads the drug unit.

"We're confident that we're not going to lose any of these cases,"
McDonnell said.

The Multnomah County District Attorney's office prosecuted an
estimated 175 marijuana grow cases last year, 248 in 1997 and 364 in
1996, said Tom Simpson, a management assistant. The task force seized
126 marijuana grows last year and got $186,000 in forfeited cash,
property and real estate, Ferraris said.

The trap and trace is like Caller ID in that it provides only the
phone number of the caller.

The 1989 Legislature approved use of trap and trace if police could
show a judge there is probable cause to think a person has committed
or is about to commit a serious crime, including a drug offense.
However, the Legislature placed more restrictions on the use of traps
in Oregon than federal law allowed. Specifically, a trap could only be
used for 30 days, which may be extended by an application for another
30 days. Defense lawyers argue that police have violated that by using
the trap continually for several years.

The two sides argued before Multnomah County Circuit Judge Michael
Marcus last month over whether the city sould have to turn over
information about trap and trace to lawyers for 18 defendants. Marcus,
who has seen the police documents, ruled that the city must tell each
defendant whether he was the subject of a trap and trace. The two
sides will continue the legal wrangling March 16 over what information
the city will have to release.

The information about the trap became public after an investigation of
a Bend man for growing marijuana. Oregon State Police troopers
arrested Neil Jeffery Hauser and seized 83 marijuana plants from his
home, according to court documents. On June 3, Hauser pretended to be
a Bend police officer and called Officer Nathan Shropshire, a member
of the Portland Police Marijuana Task Force, according to the
documents. Hauser taped the conversation without Shropshire's knowledge.

Shropshire told Hauser that before 1995, police got a court order to
trap and trace every incoming phone number to American Agriculture. US
West would give him information every week on computer, which police
would run through the power companies.

"And then ... we just go from there," Shropshire said. "You know, you
go out and take a look at it, and for the most part we start all our
investigations that way and go from that to an occupant."

Shropshire said he renewed the court order every 30 days. He also said
police never referred to the trap in their affidavits to obtain search
warrants.

Hauser is being prosecuted for felony criminal impersonation.

An attorney representing American Agriculture filed a notice with the
city in November that the company intends to sue the city. In the tort
claims notice, attorney David W. Owens claims the trap and trace was
illegal. Owens said in an interview that the device violated his
client's right to privacy and interfered with prospective customers.

In a separate case, American Agriculture filed a lawsuit against the
city and the Police Bureau in October 1995, claiming police slandered
the store and intentionally interfered in its business relations. In
May 1997, the city and American Agriculture settled. The company
dismissed its lawsuit in exchange for the city agreeing that police
would no longer conduct open surveillance, which might scare away customers.

The settlement also calls for the city to pay $1,000 for each
occurrence that it violates the agreement. So far, American
Agriculture has not claimed any violations.

Officers with the Marijuana Task Force testified in November that they
first learned of the house where Steven Douglas Dons shot and killed
Officer Colleen Waibel through surveillance of American Agriculture.
During covert surveillance, they followed a car back to Dons' home and
watched as someone unloaded equipment into the house.

David Anderson,
503 294-7663,
DavidAnderson@news.oregonian.com