A Washington County judge last week threw out evidence from a wiretap in a pending murder case, finding that Oregon’s law allowing a deputy district attorney — not the county’s top prosecutor — to apply for the wiretap violated federal law.
The decision could put any future state-issued wiretap orders in jeopardy if the applicants are anyone but the state attorney general or a county’s district attorney.
The Oregon Department of Justice and Attorney General Ellen F. Rosenblum are reviewing the judge’s ruling, said Kristina Edmundson, a department spokeswoman.
Defense lawyer Kevin Sali sought to suppress wiretap evidence against his client in a Hillsboro homicide case. Police captured the suspect’s text messages and other phone communications under a state court order.
Sali argued that the federal Wiretap Act sets out clear procedures that must be followed when government officials wish to intercept wire, electronic or oral communications.
The federal act also establishes minimum requirements for state court-issued wiretap applications, namely that the “the principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision” must be the one to apply for such an order.
Oregon law, he argued, is inconsistent with the federal law, in that it allows the district attorney to designate a deputy district attorney to apply for the judge’s order.
Sali cited rulings from the U.S. Supreme Court and the 9th U.S. Circuit Court of Appeals to back up his motion.
In the Hillsboro case, two Washington County senior deputy district attorneys described themselves as being “authorized by (then) District Attorney Robert Hermann for Washington County, Oregon” when they applied for the judge’s wiretap order, yet there was no evidence of any personal review or other involvement of Hermann, Sali argued.
Washington County Circuit Judge Janelle Factora Wipper sided with Sali.
“States are prohibited from creating less restrictive laws” than the federal code, Wipper ruled Friday.
“In this case, because the official responsive to the political process did not indicate that he or she was aware of the wiretap application, the evidence gained in response to the wiretaps are suppressed.”
Prosecutors said Langston Amani Harris, 23, robbed and killed Jose Raul Boyzo-Hernandez, 22, after Boyzo-Hernandez had arranged by phone to have a prostitute come to his apartment on Sept. 20, 2017.
Harris and a co-defendant, Terrayla Sterling-Clark, are accused of showing up instead to rob Harris, according to court documents. When Boyzo-Hernandez resisted turning over his money, Harris shot him in the face, prosecutors said. Boyzo-Hernandez’s body was found later that morning.
Investigators first obtained search warrants for Boyzo-Hernandez’s phones and then applied for wiretap applications for the phone numbers he exchanged text messages with before he was killed , according to court records.
The wiretaps, prosecutors said, showed Boyzo-Hernandez used his phones to respond to a prostitution ad on backpage.com by calling a number associated with Harris.
Boyzo-Hernandez exchanged texts to negotiate a prostitution encounter, sent a photo of a large amount of cash and made outgoing calls, prosecutors said.
Harris has pleaded not guilty to first-degree and second-degree murder, first-degree robbery, being a felon in possession of a firearm, promoting prostitution, tampering with a witness and racketeering.
Sterling-Clark, 23, pleaded guilty to second-degree robbery in the case and was sentenced last April to seven years and six months in prison. As part of the plea, prosecutors said they would resolve her other pending murder, racketeering and prostitution charges upon her “continued cooperation” with law enforcement and “truthful testimony” in Harris’ trial, according to court records.
Sali, representing Harris, argued in court that the Oregon Department of Justice has been “extensively put on notice” of the legal questions surrounding the state’s wiretap law and practices.
And, despite a recent ruling by the 9th Circuit on the matter, “the prosecutors in this case simply made a bet that their own contrary interpretation of the law would eventually carry the day,” he wrote in court records.
Washington County prosecutors had defended the wiretap order, saying the 9th Circuit ruling wasn’t binding on the Oregon court and that such wiretap orders must only conform to federal constitutional standards.
“The wiretap order in this case was applied for by a deputy district attorney, by and through the then district attorney of Washington County,” John Gerhard, senior deputy district attorney, wrote to the court.
State law allows a principal district attorney to authorize and appoint a deputy to apply for a wiretap order, said John Gerhard, senior deputy district attorney.
He urged the Washington County judge to “value substance over form” and deny Sali’s motion.
“The Oregon wiretap statute is good law and complies with state and federal constitutional standards,” Gerhard wrote. “The attorneys and law enforcement officers in this case complied with Oregon legal requirements.’’
Sali pointed out that an Aug. 2, 2017, ruling by the 9th Circuit held a wiretap invalid in an Arizona case, Villa v. Maricopa County, because a deputy prosecuting attorney had applied for the order. The ruling came nine months before the first wiretap application in the Hillsboro murder case.
Federal law sets minimum procedural requirements for state and federal orders authorizing wiretapping.
“These requirements are a floor, not a ceiling,” the 9th Circuit opinion said. “States may choose to enact wiretapping statutes imposing more stringent requirements, or they may choose to forego state-authorized wiretapping altogether.”
The purpose of the federal act is to make sure that “a publicly responsible official subject to the political process” personally approves a wiretap application, the appeals court ruled.
“It is therefore not sufficient for the principal prosecuting attorney to state that he or she is generally aware of the criminal investigation, that he or she authorizes a deputy to seek wiretaps, and that his or her deputy has been authorized to review and present to the court the evidence in support of the wiretaps,” the ruling said.
The appeals court further wrote that, “Congress wanted each application passed upon by one of the highest law enforcement officials in the government (.)…The Congress expected them to exercise judgment, personal judgement, before approving any application.”
— Maxine Bernstein
Email [email protected]; 503-221-8212
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