State v. Miskell/Sinibaldi

Under ORS 133.726(7)(b), an exigency exception to the ex parte order requirement for surveillance must be demonstrated by evidence that swift action is necessary to prevent harm to persons or property, the escape of a suspect, destruction of evidence or the like.

Defendants Miskell and Sinibaldi appealed their convictions of charges of theft and burglary. The police, in an effort to gather information about these crimes, used surveillance to record a conversation, without an ex parte order, whereby an informant discussed the crimes with Defendants. Defendants argued that the surveillance, without an ex parte order, violated ORS 133.726 and should have been suppressed at trial. The prosecution argued that the exigency exception under ORS 133.726(7)(b) should apply, or in the alternative, that allowing of the surveillance evidence at trial was harmless error. The Supreme Court held that the circumstances of this case did not allow for the exigency exception because there was not sufficient evidence that the informant's meeting could not have been postponed until an ex parte order was obtained and that allowing the surveillance at trial was not harmless error. Reversed and remanded.