Oregon Supreme Court: Federal Law Prohibits Elected DA’s Delegation of Wiretap Authority and Overbroad Initial Search Warrant Requires Suppression of Evidence Obtained as Result of Over 20 Subsequent Warrants
by Mark Wilson
The Supreme Court of Oregon unanimously upheld a lower court’s suppression of the State’s wiretap evidence, concluding that the wiretaps violated federal law. It also affirmed the trial court’s suppression of search warrant evidence because the warrants lacked specificity and were overbroad.
During the evening of September 20, 2017, an Oregon man identified only as RBH had an argument with his wife and left their apartment to sleep in his truck in the parking lot. RBH’s wife called him at about 3:00 a.m., and neighbors reported hearing what sounded like a gunshot around 3:30 a.m. RBH was found on the ground next to his truck with a gunshot wound to the head a few hours later.
Police found two cell phones on RBH’s body. His wife could not identify one of the phones, but they both belonged to him. Investigators obtained a search warrant for the unidentified phone’s call and text records.
The search revealed that someone at phone number “-2494” had called RBH nine times between 3:13 a.m. and 3:21 a.m. on September 20, 2017. Four calls were not completed, four went to voice mail, and the final call was answered and lasted over four minutes.
Investigators then obtained a search warrant on September 22, 2017, for records from service provider T-Mobile for phone number “-2494.” The warrant sought detailed records from 8:00 a.m. on September 19, 2017 through 8:00 a.m. on September 21, 2017, including “location data” for the phone; “details of all voice, message, and data usages (incoming and outgoing); and “all incoming and/or outgoing SMS and/or MMS messages and related records.”
The number “-2494” was linked to Langston Amani Harris. About the time investigators received the requested T-Mobile records, an analysis revealed that in the hours before his death, RBH exchanged numerous text messages and phone calls with multiple phone numbers linked to online ads for prostitution services. One of these calls was made to RBH’s phone at 3:27 a.m.; the number was linked to prostitution ads for a woman named Sterling-Clark.
Based on the additional information obtained from RBH’s phone together with the records obtained from the September 22 warrant, police sought and obtained search warrants for several additional phone numbers. And those records led to search warrants for additional phone numbers. In total, the State obtained more than 20 search warrants for phone numbers and online accounts linked to Harris, all based on evidence obtained as a result of the original September 22 warrant.
Additionally, the State obtained four judicial wiretap orders to intercept oral, electronic, and wire communications (collectively, “wiretaps”) for several phone numbers allegedly used by Harris. Notably, the use of wiretaps is restricted under federal law. See 18 U.S.C. §§ 2510 – 2520.
The State’s theory of the case was that Harris and Sterling-Clark were part of a prostitution ring. On the night he was murdered, RBH had responded to an online ad for prostitution services and arranged to meet Sterling-Clark. Harris arranged the encounter and drove Sterling-Clark to meet RBH. Harris and Sterling-Clark then decided to rob RBH after he texted them a picture of a large sum of cash. During the robbery, Harris fatally shot RBH and later attempted to intimidate Sterling-Clark into concealing his role in the murder.
Harris was charged with first- and second-degree murder, first-degree robbery, promoting prostitution, and other crimes. The trial court granted some of Harris’s pretrial motions to suppress the wiretap and search warrant evidence, and the State filed a pretrial appeal.
Beginning with the wiretap issue, the Oregon Supreme Court noted that the use of wiretaps is governed by federal law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Wiretap Act”), Pub L 90-351, 82 Stat 197 (1968). The Wiretap Act restricts the ability of both state and federal officials to obtain judicial wiretap orders, and state and federal courts are prohibited from admitting wiretap evidence seized in violation of federal law. See 18 U.S.C. § 2515; see also § 2518(10)(a) (setting forth procedures for suppression).
The Court explained that the key provision for the current case is § 2516(2), which mandates that applications at the state level be made by the state Attorney General or District Attorney. However, it was a deputy district attorney who applied for the wiretaps targeting Harris. The applications stated that the deputy district attorney was “authorized by District Attorney Robert Hermann … to make this application pursuant to ORS 133.724(1)(a).”
The State argued that federal law doesn’t preclude District Attorneys from delegating their authority to apply for wiretaps since the statute is silent on the issue, so the delegation of authority in this case was authorized by state statute, viz., ORS § 133.724(1). The Court stated that the issue of wiretap evidence is governed entirely by federal law, so the dispositive question is whether federal law permits the delegation of wiretap authority.
The Court stated that § 2516(2) “sets specific limitations on the officials who are authorized to apply for wiretaps,” adding “[a]lthough the statute may not prohibit delegation in express terms, it specifically implies that prohibition.” The Court referred to the provision in the Wiretap Act dealing with federal officials who are authorized to apply for wiretaps, § 2516(1), and noted that the U.S. Supreme Court has interpreted the statute as prohibiting the type of delegation of authority argued for by the State. See United States v. Giordano, 416 U.S. 505 (1974). The Court stated that both § 2516(2) and § 2516(1) were adopted as part of the Wiretap Act, and the Giordano Court ruled that Congress intended for § 2516(1) to serve as a limitation on the power to authorize federal wiretap applications. The Court reasoned that the same rationale applies to limit state wiretap applications under § 2516(1). Thus, the Court concluded that the evidence obtained via the wiretaps was “unlawfully intercepted” under § 2518(10)(a)(i).
Turning to the search warrants, the Court noted that the key to resolving this issue was the September 22 warrant because the 23 subsequent warrants relied upon information obtained as a result of the September 22 warrant and they all sought “substantively the same” information as the September 22 warrant. The trial court ruled that the September 22 warrant wasn’t based upon probable cause and was overbroad under Article I, section 9 of the Oregon Constitution, and consequently, it granted Harris’ motions to suppress all cell phone records.
The Court focused its analysis on just the overbroad rationale, explaining that the suppression remedy is the same regardless of which rationale suppression is based upon. The text of Article I, section 9 is substantially similar to the Fourth Amendment. The Oregon Supreme Court instructed that that section imposes an “objective test of whether the government’s conduct would significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.” State v. Mansor, 421 P.3d 323 (Ore. 2018). The standard for probable cause is whether the State has shown “an objectively reasonable belief that seizable things will probably be found in the location to be searched.” State v. Foster, 252 P.3d 292 (Ore. 2011). This “requires more than mere suspicion or a mere possibility.” Id.
The Court stated that overbreadth is an aspect of the probable cause and particularity requirements. See Mansor. The Mansor Court explained that “even if the warrant is sufficiently specific, it must not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.” See Wayne R. LaFave, 2 Search and Seizure § 4.6(a), 752 (6th ed. 2020) (an “otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based).”
Turning to the present case, the Court observed that the affidavit in support of the September 22 warrant specifically asserted the probable cause as the caller associated with phone number -2494 was a witness that the State needed to identify because they might have relevant information about the murder and a search of the requested records could identify the caller. But the Court stated that “the State offers no explanation for how the asserted probable cause [identifying the caller] justifies a search of the account holder’s entire record of cell phone calls, text messages, internet usage, and locations for a period of 60 hours.”
Thus, the Court ruled that the search authorized by the September 22 warrant was “broader than the supporting affidavit supplies probable cause to justify.” see Mansor. Because the September 22 warrant was invalid for being overbroad, the Court also ruled that the subsequent 23 search warrants all lacked probable cause once the information obtained from the September 22 warrant was excised.
Accordingly, the Court affirmed the trial courts’ rulings. See: State v. Harris, 509 P.3d 83 (Ore. 2022).
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