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Copyright 2000
Oregon Live ®

The evidence gathered by police in a marijuana case will not be thrown out, a circuit judge says

Wednesday, September 1, 1999

A Multnomah County judge ruled Tuesday that he would not throw out evidence against 51 accused marijuana growers even though police learned of them through unlawfully traced telephone calls.

Circuit Judge Michael Marcus said the issue was whether the Portland Police Bureau's Marijuana Task Force exploited the unlawful information to make arrests.

He used the analogy of a suspect who gives police information about a murder while officers beat him. The beating is illegal and the direct information that comes of it might not be used in court, but that doesn't mean that police cannot investigate the murder and use subsequent legal evidence to prosecute.

In this case, Marcus said other police investigation between the time police obtained the telephone records until they made the arrests lessened the damage from the unlawful search. They examined utility records for unusually high usage from marijuana-grow lights and conducted "knock and talks" in which police would ask for permission to search a residence for evidence of growing.

In addition, Marcus said police did not exploit the information because they merely told residents they had information of possible marijuana growing, but did not say the reason was because the suspects had called an indoor growing-supply store in Southeast Portland.

Phone tap ruled illegal
Marcus ruled Aug. 2 that the "trap and trace" of American Agriculture's phone line was illegal because police did not have probable cause to think that a conspiracy to manufacture drugs existed between the indoor-growing store and marijuana growers. Police could get only one person to give them information despite trying to get hundreds of growers to cooperate.

Police first obtained a secret court order for a "trap and trace" on the telephone of American Agriculture in 1995. The trace provided police with the phone numbers of people who called the store. Police said the primary objective was to build a case against American Agriculture, but a side benefit was learning of individual growers.

Marcus' ruling Aug. 2 that the trap and trace was illegal has not changed the way the task force operates, said Capt. James Ferraris of the Drugs and Vice Division. Two other judges had approved orders for the trap and trace before Marcus ruled it illegal.

"Judge Marcus is obviously entitled to his opinion, but his opinion is in conflict with his peers," Ferraris said Tuesday.

Phil Lewis, an attorney for one of the defendants, said Tuesday that he respected Marcus' ruling, but it gives police no incentive to obey the law.

Prior rulings termed unclear
"It's a wrong without a remedy," Lewis said.

However, Jason Feldman, a deputy district attorney, said suppressing the evidence was an extreme remedy that wasn't warranted in this case, especially because officers acted in good faith.

Marcus also indicated frustration that prior appellate rulings on the issue of exploitation were unclear.

However, the issue probably will be appealed, and at least one appellate judge has indicated that the 1981 case that prosecutors relied upon may no longer rule. In a ruling in a 1994 case, Oregon Supreme Court Justice Michael Gillette wrote that the analysis of the 1981 case was so suspect that he advised lawyers and judges not to rely on it.

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