133.726
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, 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.
(2) For purposes
of this section and ORS 133.736, 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 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. 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 or
167.008, 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
or 167.008; 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 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 475.752, 475.786 to 475.894, 475.906, 475C.005
to 475C.525 or 475C.770 to 475C.919 or as a misdemeanor under ORS 167.007 or
167.008; 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 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:
(a) An officer
employed to enforce criminal laws by:
(A) The United
States, this state or a municipal government within this state;
(B) A political
subdivision, agency, department or bureau of the governments described in
subparagraph (A) of this paragraph; or
(C) A police
department established by a university under ORS 352.121 or 353.125;
(b) An authorized
tribal police officer as defined in ORS 181A.940; or
(c) A regulatory
specialist as defined in ORS 471.001.
(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 §§2,3; 2011
c.151 §§9,10; 2011 c.644 §§18,19,63,64,71; 2012 c.54 §§12,13; 2013 c.180 §§14,15;
2015 c.174 §7; 2015 c.614 §§143,144; 2023 c.209 §5]
Notes of Decisions
Cited in
15
cases (
2 in the last 5 years), 1987–2025 · leading case:
State v. Miskell, 277 P.3d 522 (Or. 2012).
State v. Miskell, 277 P.3d 522 (Or. 2012).
· cites it 39× “We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
State v. Delaurent, 514 P.3d 113 (Or. Ct. App. 2022).
· cites it 17× “540(10)(b) provides that “[l]aw enforcement officer has the meaning given that term in ORS 133.726.” (Internal quotation marks omitted.”
State v. Klein, 283 P.3d 350 (Or. 2012).
· cites it 7× “Based on the information that Hutchens supplied, the police obtained an order under ORS 133.726, the body-wire statute, to intercept oral communications between Hutchens and Hale by means of a body-wire worn by Hutchens.”
State v. Fleetwood, 16 P.3d 503 (Or. 2000).
· cites it 11× “” 6 *519 The second pertinent statute is ORS 133.726, which provides, in part: “(1) An ex parte order for the obtaining of any conversation in any county of this state under ORS 165.”
State v. Lissy, 747 P.2d 345 (Or. 1987).
· cites it 7× “] The police obtained evidence through electronic surveillance orders pursuant to ORS 133.726. Any evidence obtained by this route should be suppressed as ORS 133.”
State v. Rodriguez, 840 P.2d 711 (Or. Ct. App. 1992).
· cites it 6× “" ORS 133.726 and ORS 41.910(2) establish that a motion to suppress is the sole method for challenging the admissibility of an conversation intercepted under ORS 165.”
State v. Hale, 288 P.3d 1 (Or. Ct. App. 2012).
· cites it 6× “Based on the information that Hutchens supplied, *191 the police obtained an order under ORS 133.726, the body wire statute, to intercept oral communications between Hutchens and [defendant] by means of a body-wire worn by Hutchens.”
State v. Klein, 258 P.3d 528 (Or. Ct. App. 2011).
· cites it 3× “ORS 133.726. On November 3, 2006, several days before the first intercept order was scheduled to expire, the police applied for a new order to intercept communications between Hutchens and Hale under ORS 133.”
State v. Lissy, 737 P.2d 617 (Or. Ct. App. 1987).
· cites it 4× “Defendant also contends that the statements of Wilson that were made in his conversation with LaPlante and recorded by her should have been suppressed, because the court order allowing the recording of that conversation was obtained under ORS 133.”
State v. Bass, 868 P.2d 761 (Or. Ct. App. 1994).
· cites it 2× ““(5)(a) The prohibitions in paragraph (c) of subsection (1) of this section do not apply: “(A) When a law enforcement officer obtains a conversation between the officer or someone under the officer’s direct supervision pursuant to a court order under ORS 133.726, providing the…”
State v. Evans, 832 P.2d 460 (Or. Ct. App. 1992).
· cites it 3× “He argues that the police violated Oregon statutes governing interception of communications, because there were no exigent circumstances to justify the interception without a court order, as required by ORS 133.”
State v. Casteel, 857 P.2d 204 (Or. Ct. App. 1993).
· cites it 4× “540(l)(c) does not apply when “a law enforcement officer obtains a conversation between the officer, or someone under the direct supervision of the officer, and a person who the officer has probable cause to believe has committed, is engaged in committing or is about to commit a…”
— Or. Rev. Stat. § 133.726(1) — 4 cases
State v. Delaurent, 514 P.3d 113 (Or. Ct. App. 2022).
“540(10)(b) provides that “[l]aw enforcement officer has the meaning given that term in ORS 133.726.” (Internal quotation marks omitted.”
State v. Rodriguez, 840 P.2d 711 (Or. Ct. App. 1992).
“" ORS 133.726 and ORS 41.910(2) establish that a motion to suppress is the sole method for challenging the admissibility of an conversation intercepted under ORS 165.”
State v. Miskell, 277 P.3d 522 (Or. 2012).
“We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
State v. Evans, 832 P.2d 460 (Or. Ct. App. 1992).
“He argues that the police violated Oregon statutes governing interception of communications, because there were no exigent circumstances to justify the interception without a court order, as required by ORS 133.”
— Or. Rev. Stat. § 133.726(11) — 1 case
State v. Delaurent, 514 P.3d 113 (Or. Ct. App. 2022).
“540(10)(b) provides that “[l]aw enforcement officer has the meaning given that term in ORS 133.726.” (Internal quotation marks omitted.”
— Or. Rev. Stat. § 133.726(11)(a) — 1 case
State v. Delaurent, 514 P.3d 113 (Or. Ct. App. 2022).
“540(10)(b) provides that “[l]aw enforcement officer has the meaning given that term in ORS 133.726.” (Internal quotation marks omitted.”
— Or. Rev. Stat. § 133.726(11)(a)(A) — 1 case
State v. Delaurent, 514 P.3d 113 (Or. Ct. App. 2022).
“540(10)(b) provides that “[l]aw enforcement officer has the meaning given that term in ORS 133.726.” (Internal quotation marks omitted.”
— Or. Rev. Stat. § 133.726(3) — 3 cases
State v. Miskell, 277 P.3d 522 (Or. 2012).
“We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
State v. Hale, 288 P.3d 1 (Or. Ct. App. 2012).
“Based on the information that Hutchens supplied, *191 the police obtained an order under ORS 133.726, the body wire statute, to intercept oral communications between Hutchens and [defendant] by means of a body-wire worn by Hutchens.”
— Or. Rev. Stat. § 133.726(5) — 1 case
State v. Hale, 288 P.3d 1 (Or. Ct. App. 2012).
“Based on the information that Hutchens supplied, *191 the police obtained an order under ORS 133.726, the body wire statute, to intercept oral communications between Hutchens and [defendant] by means of a body-wire worn by Hutchens.”
— Or. Rev. Stat. § 133.726(6)(a) — 1 case
State v. Klein, 283 P.3d 350 (Or. 2012).
“Based on the information that Hutchens supplied, the police obtained an order under ORS 133.726, the body-wire statute, to intercept oral communications between Hutchens and Hale by means of a body-wire worn by Hutchens.”
— Or. Rev. Stat. § 133.726(6)(e) — 1 case
State v. Hale, 288 P.3d 1 (Or. Ct. App. 2012).
“Based on the information that Hutchens supplied, *191 the police obtained an order under ORS 133.726, the body wire statute, to intercept oral communications between Hutchens and [defendant] by means of a body-wire worn by Hutchens.”
— Or. Rev. Stat. § 133.726(7) — 2 cases
State v. Miskell, 277 P.3d 522 (Or. 2012).
“We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
State v. Klein, 283 P.3d 350 (Or. 2012).
“Based on the information that Hutchens supplied, the police obtained an order under ORS 133.726, the body-wire statute, to intercept oral communications between Hutchens and Hale by means of a body-wire worn by Hutchens.”
— Or. Rev. Stat. § 133.726(7)(a) — 1 case
State v. Miskell, 277 P.3d 522 (Or. 2012).
“We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
— Or. Rev. Stat. § 133.726(7)(b) — 1 case
State v. Miskell, 277 P.3d 522 (Or. 2012).
“We conclude that the police acted unlawfully in failing to seek a court order under ORS 133.726 before intercepting and recording the conversation, and that the recording should have been suppressed.”
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