State v. Pottle

PETERSON, C. J.,

dissenting.

I join in the dissenting opinion of Jones, J., except for the section entitled “Minimization Execution,” and wish to add these additional comments.

The police made a strong effort to comply with the wiretap law. The affidavits are in painstaking detail. A circuit judge reviewed the facts and authorized the wiretap.

At most, the order is deficient in two insubstantial respects. It does not state that the order “be executed as soon as practicable,” and it does not state that the wiretap “must terminate upon attainment of the authorized objective,” ORS 133.724(5).

Contrary to the majority’s conclusion, I believe there was a minimization clause. The order stated that “the communications to be intercepted are limited to telephone conversations of Mindi Tucker * * * which pertain to the murder of Christopher Tucker and the intended distribution of $75,000.00 insurance proceeds she expects to collect.” If this isn’t a minimization clause I shall never be able to recognize one. Cf. United States v. Kahn, 415 US 143, 154, 94 S Ct 977, 39 L Ed 2d 225 (1974).

The wiretap law does not state that a violation of the statute requires the suppression of all evidence. See ORS 133.735. The majority’s decision to suppress is not based upon a finding that the defendant’s constitutional rights were violated. Rather, it finds insubstantial failures to comply with the statute and suppresses relevant evidence, evidence which was obtained pursuant to an order of a circuit judge upon review of facts and documents which revealed painstaking efforts of the police to follow the law.