Illegal Recording or Intercepting a Conversation in Oregon Forces Courts to Suppress Evidence

Privacy is fundamental to the citizens of this country, and, in certain circumstances, ferociously protected. Whether it's through interpretations of the U.S. Constitution, or via state or federal laws, particular actions are prohibited or illegal simply because they impede on an individual's right or expectation of privacy.

One such example involves the use of electronic recording or interception devices. As technology progresses in our 21-century-electronic world, it's important to understand the laws, particularly in Oregon, that govern these devices and the effect they have on information and evidence obtained.

Illegally Recording a Conversation in Oregon

In general terms, it is illegal for any person in Oregon to obtain or divulge a conversation (an oral communication between two or more persons), a telecommunication (a transmission of writing, signs, signals, pictures and sounds via wire, cable or other similar connection) or a radio communication (a transmission by radio or other wireless methods of writing, signs, signals, pictures and sounds of all kinds) by means of any device, contrivance machine or electrical or manual apparatus, unless one is a party to the conversation or has obtained consent from at least one party to the conversation.

For purposes of the law, a person also includes a public official and law enforcement officer of the state, county, municipal corporation or any other political subdivision of the state.

It's helpful to see just how much this law plays a part in criminal proceedings.

For example, in State v. Jones, the defendant was considered a suspect in a murder investigation. He was interviewed twice by police and the interviews were recorded without his knowledge.

The information obtained from the defendant during the interviews was used against him and subsequently lead to murder charges. The defendant made a motion to suppress the evidence because he believed the recording was illegal under Oregon law.

At trial, the Douglas County Circuit Court Judge agreed and granted the motion. The prosecution appealed. Eventually, the case landed in the hands of the Oregon Supreme Court.

The prosecution argued that their actions were legal because the interviews were not "oral communications" as referenced in the definition of conversation. In Oregon, an oral communication is any utterance by a person without that person's expectation of it being recorded or intercepted.

However, the Supreme Court rejected this argument, and sided with the trial court. The decision reasoned that the intention behind the meaning of "conversation" under the statute is simply whether or not the communication is oral, through telecommunication or via radio communication.

The Court ruled that the definition of conversation was met and therefore since the police failed to notify the defendant his statements were being recorded, "evidence related to those statements" were lawfully suppressed by the lower court.


Illegally Intercepting a Conversation in Oregon

In general terms, it is also illegal for any person in Oregon (including public or state officials or law enforcement officers) to "willfully intercept, attempt to intercept, or procure any other person to intercept or attempt to intercept, any wire or oral communication of one or more persons without prior consent by any of the parties."

Similar to Jones, this law also affects the outcome of criminal proceedings. For example, in State v. Carston, defendants were pulled over for at traffic stop. The defendants were subsequently charged with drug offenses as a result of the stop. However, the traffic stop was only made after a police informant told authorities he overheard-through an intercepted cordless telephone communication via his scanner (a device that receives radio transmissions)-one of the defendants in the vehicle was planning to make an immediate drug transaction.

The defendants argued that because the information was illegally intercepted under Oregon law, the evidence obtained-the drugs-should be suppressed.

The Circuit Court of Deschetes County agreed and granted the motion to suppress the evidence. Carston, like Jones, also made its way into the hands of the Oregon Supreme Court.

The law says that recording or intercepting a "radio communication" is unlawful unless it falls under a particular exception. In this particular instance, the prosecution relied on the public broadcast exception. Under Oregon law, a communication is not a radio communication if it is broadcast for the use of the general public.

The Supreme Court disagreed and ruled that the suppression was appropriate because "cordless telephone conversations involving private citizens in which one or more of the parties uses a cordless telephone is not a radio broadcast transmitted for use of general public within exception to statute..."

Although Carston was determined in an age of cordless telephones, it's likely the ruling will apply to the interception of cell phones commonly used today. Currently, no criminal case has been decided by an Oregon or the Ninth Circuit Court of Appeals involving the recording or interception of information from a mobile device or smartphone used against persons in a criminal court of law.

The Importance of Understanding Your Rights

Oregon criminal law attorneys can't stress enough just how important it is to understand the protections afforded to individuals facing criminal charges, specifically protections that relate to using information or evidence illegally obtained, recorded or intercepted.

Jones and Carston illustrate just how different a criminal case can turn out when those protections are asserted.