2007 ORS § 133.726¹
Interception of oral communication without order
  • order for interception of oral communication
  • application
  • grounds for issuance
  • contents of order
  • penalties

(1) Notwithstanding ORS 133.724 (Order for interception of communications), under the circumstances described in this section, a law enforcement officer is authorized to intercept an oral communication to which the officer or a person under the direct supervision of the officer is a party, without obtaining an order for the interception of a wire, electronic or oral communication under ORS 133.724 (Order for interception of communications).

(2) For purposes of this section and ORS 133.736 (Motion to suppress intercepted oral communication), a person is a party to an oral communication if the oral communication is made in the person’s immediate presence and is audible to the person regardless of whether the communication is specifically directed to the person.

(3) An ex parte order for intercepting an oral communication in any county of this state under this section may be issued by any judge as defined in ORS 133.525 (Definitions for ORS 133.525 to 133.703) upon written application made upon oath or affirmation of the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought or upon the oath or affirmation of any peace officer as defined in ORS 133.005 (Definitions for ORS 131.655, 133.005 to 133.381 and 133.410 to 133.450). The application shall include:

(a) The name of the applicant and the applicant’s authority to make the application;

(b) A statement demonstrating that:

(A) There is probable cause to believe that a person whose oral communication is to be intercepted is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007 (Prostitution), and that intercepting the oral communication will yield evidence thereof; or

(B)(i) There is reasonable suspicion to believe that a person whose oral communication is to be intercepted is engaged in committing, has committed or is about to commit a crime;

(ii) There is reasonable suspicion to believe that the circumstances in which the oral communication is to be intercepted present a substantial risk of death, serious physical injury or sexual assault to a law enforcement officer or a person under the direct supervision of the officer;

(iii) Interception of the oral communication is necessary to protect the safety of the person who may be endangered; and

(iv) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or are likely to be too dangerous; and

(c) The identity of the person, if known, suspected of committing the crime and whose oral communication is to be intercepted.

(4) The judge may require the applicant to furnish further testimony or documentary evidence in support of the application.

(5) Upon examination of the application and evidence, the judge may enter an ex parte order, as requested or as modified, authorizing or approving the interception of an oral communication within the state if the judge determines on the basis of the facts submitted by the applicant that:

(a)(A) There is probable cause to believe that a person is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007 (Prostitution); and

(B) There is probable cause to believe that the oral communication to be obtained will contain evidence concerning that crime; or

(b)(A) There is reasonable suspicion to believe that a person whose oral communication is to be intercepted is engaged in committing, has committed or is about to commit a crime;

(B) There is reasonable suspicion to believe that the circumstances in which the oral communication is to be intercepted present a substantial risk of death, serious physical injury or sexual assault to a law enforcement officer or a person under the direct supervision of the officer;

(C) Interception of the oral communication is necessary to protect the safety of the person who may be endangered; and

(D) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or are likely to be too dangerous.

(6) An order authorizing or approving the interception of an oral communication under this section must specify:

(a) The identity of the person, if known, whose oral communication is to be intercepted;

(b) A statement identifying the particular crime to which the oral communication is expected to relate;

(c) The agency authorized under the order to intercept the oral communication;

(d) The name and office of the applicant and the signature and title of the issuing judge;

(e) A period of time after which the order shall expire; and

(f) A statement that the order authorizes only the interception of an oral communication to which a law enforcement officer or a person under the direct supervision of a law enforcement officer is a party.

(7) An order under ORS 133.724 (Order for interception of communications) or this section is not required when a law enforcement officer intercepts an oral communication to which the officer or a person under the direct supervision of the officer is a party if the oral communication is made by a person whom the officer has probable cause to believe has committed, is engaged in committing or is about to commit:

(a) A crime punishable as a felony under ORS 475.840 (Prohibited acts generally), 475.846 (Unlawful manufacture of heroin) to 475.894 (Unlawful possession of methamphetamine) or 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school) to 475.910 (Application of controlled substance to the body of another person) or as a misdemeanor under ORS 167.007 (Prostitution); or

(b) Any other crime punishable as a felony if the circumstances at the time the oral communication is intercepted are of such exigency that it would be unreasonable to obtain a court order under ORS 133.724 (Order for interception of communications) or this section.

(8) A law enforcement officer who intercepts an oral communication pursuant to this section may not intentionally fail to record and preserve the oral communication in its entirety. A law enforcement officer, or a person under the direct supervision of the officer, who is authorized under this section to intercept an oral communication is not required to exclude from the interception an oral communication made by a person for whom probable cause does not exist if the officer or the person under the officer’s direct supervision is a party to the oral communication.

(9) A law enforcement officer may not divulge the contents of an oral communication intercepted under this section before a preliminary hearing or trial in which an oral communication is going to be introduced as evidence against a person except:

(a) To a superior officer or other official with whom the law enforcement officer is cooperating in the enforcement of the criminal laws of this state or the United States;

(b) To a magistrate;

(c) In a presentation to a federal or state grand jury; or

(d) In compliance with a court order.

(10) A law enforcement officer may intercept an oral communication under this section only when acting within the scope of the officer’s employment and as a part of assigned duties.

(11) As used in this section, "law enforcement officer" means an officer employed by the United States, this state or a municipal government within this state, or a political subdivision, agency, department or bureau of those governments, to enforce criminal laws.

(12) Violation of subsection (9) of this section is a Class A misdemeanor. [1983 c.824 §8; 1995 c.224 §2; 2001 c.385 §2; 2003 c.577 §13; 2005 c.708 §46; 2007 c.442 §2]

Note: The amendments to 133.726 (Interception of oral communication without order) by section 3, chapter 442, Oregon Laws 2007, become operative January 2, 2012. See section 4, chapter 442, Oregon Laws 2007. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

133.726 (Interception of oral communication without order). (1) Notwithstanding ORS 133.724 (Order for interception of communications), under the circumstances described in this section, a law enforcement officer is authorized to intercept an oral communication to which the officer or a person under the direct supervision of the officer is a party, without obtaining an order for the interception of a wire, electronic or oral communication under ORS 133.724 (Order for interception of communications).

(2) For purposes of this section and ORS 133.736 (Motion to suppress intercepted oral communication), a person is a party to an oral communication if the oral communication is made in the person’s immediate presence and is audible to the person regardless of whether the communication is specifically directed to the person.

(3) An ex parte order for intercepting an oral communication in any county of this state under this section may be issued by any judge as defined in ORS 133.525 (Definitions for ORS 133.525 to 133.703) upon written application made upon oath or affirmation of the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought or upon the oath or affirmation of any peace officer as defined in ORS 133.005 (Definitions for ORS 131.655, 133.005 to 133.381 and 133.410 to 133.450). The application shall include:

(a) The name of the applicant and the applicant’s authority to make the application;

(b) A statement demonstrating that there is probable cause to believe that a person whose oral communication is to be intercepted is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007 (Prostitution), and that intercepting the oral communication will yield evidence thereof; and

(c) The identity of the person, if known, suspected of committing the crime and whose oral communication is to be intercepted.

(4) The judge may require the applicant to furnish further testimony or documentary evidence in support of the application.

(5) Upon examination of the application and evidence, the judge may enter an ex parte order, as requested or as modified, authorizing or approving the interception of an oral communication within the state if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause to believe that a person is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007 (Prostitution); and

(b) There is probable cause to believe that the oral communication to be obtained will contain evidence concerning that crime.

(6) An order authorizing or approving the interception of an oral communication under this section must specify:

(a) The identity of the person, if known, whose oral communication is to be intercepted;

(b) A statement identifying the particular crime to which the oral communication is expected to relate;

(c) The agency authorized under the order to intercept the oral communication;

(d) The name and office of the applicant and the signature and title of the issuing judge;

(e) A period of time after which the order shall expire; and

(f) A statement that the order authorizes only the interception of an oral communication to which a law enforcement officer or a person under the direct supervision of a law enforcement officer is a party.

(7) An order under ORS 133.724 (Order for interception of communications) or this section is not required when a law enforcement officer intercepts an oral communication to which the officer or a person under the direct supervision of the officer is a party if the oral communication is made by a person whom the officer has probable cause to believe has committed, is engaged in committing or is about to commit:

(a) A crime punishable as a felony under ORS 475.840 (Prohibited acts generally), 475.846 (Unlawful manufacture of heroin) to 475.894 (Unlawful possession of methamphetamine) or 475.906 (Penalties for distribution to minors) or as a misdemeanor under ORS 167.007 (Prostitution); or

(b) Any other crime punishable as a felony if the circumstances at the time the oral communication is intercepted are of such exigency that it would be unreasonable to obtain a court order under ORS 133.724 (Order for interception of communications) or this section.

(8) A law enforcement officer who intercepts an oral communication pursuant to this section may not intentionally fail to record and preserve the oral communication in its entirety. A law enforcement officer, or a person under the direct supervision of the officer, who is authorized under this section to intercept an oral communication is not required to exclude from the interception an oral communication made by a person for whom probable cause does not exist if the officer or the person under the officer’s direct supervision is a party to the oral communication.

(9) A law enforcement officer may not divulge the contents of an oral communication intercepted under this section before a preliminary hearing or trial in which an oral communication is going to be introduced as evidence against a person except:

(a) To a superior officer or other official with whom the law enforcement officer is cooperating in the enforcement of the criminal laws of this state or the United States;

(b) To a magistrate;

(c) In a presentation to a federal or state grand jury; or

(d) In compliance with a court order.

(10) A law enforcement officer may intercept an oral communication under this section only when acting within the scope of the officer’s employment and as a part of assigned duties.

(11) As used in this section, "law enforcement officer" means an officer employed by the United States, this state or a municipal government within this state, or a political subdivision, agency, department or bureau of those governments, to enforce criminal laws.

(12) Violation of subsection (9) of this section is a Class A misdemeanor.