A county circuit judge in Portland, Oregon, has ordered the city police bureau's Marijuana Task Force to release details of a secret "trap and trace" telephone surveillance operation they have reportedly maintained on American Agriculture, a local indoor gardening supply store, for at least the past three years. The task force, apparently, traced the numbers of every caller to the store, and used that information to target private homes for searches for evidence of marijuana cultivation.
Trap and trace procedures do not record conversations like a wiretap, but only trace callers' phone numbers. Still, their use by law enforcement is regulated and limited to certain circumstances. In Oregon, police are required to have a court order allowing them to collect the numbers from the local phone company, and the trap and trace is supposed to be used only for thirty to sixty days in order to monitor a specific suspect.
But several months ago, a defendant in a marijuana cultivation case became suspicious of what had led police to his door. According to court documents, Jeffrey Hauser of Bend, Oregon, called an officer on the Portland task force, pretending to be a Bend policeman. In the conversation that followed, the Portland officer revealed that since 1995, the task force had made weekly downloads of the phone numbers of all callers to American Agriculture. Using a reverse-lookup service to find the callers' names and addresses, the task force then ran the information through the local electric company, profiling those customers who used too much -- or even too little -- electricity.
Now, a group of defense attorneys and their clients are questioning the legality of the task force's use of the trap and trace, and hoping that the judge's order will shed more light on the special unit's practices.
"It's our theory that the trap and trace is like pulling on the string that unravels the whole sweater," defense attorney Bob Theummel told The Week Online. "It's the beginning of a process that results in a whole lot of marijuana busts." Theummel said he suspects that the trap and trace is behind the task force's great success with knock-and-talk busts, wherein the police come to people's doors without a warrant and attempt to talk their way inside. Once the resident has consented to this, it becomes nearly impossible to have any evidence the police find suppressed in court. The four member task force boasts a 50% arrest rate in as many as 2,000 knock-and-talk operations over the seven years since its inception.
But attorney Michelle Burrows, who is also representing a client in the trap and trace case, said that at least one member of the task force has resorted to strong-arm tactics when he is denied entry to a home. She said, "Brian [Schmautz] claims that whenever he has smelled marijuana at someone's door, he has found it. In Oregon, it's not enough to have high electricity bills to get in the door, but once they have the smell, they can get a warrant. Well, when people would say 'go away,' he would say 'okay, fine, here's my business card' or would reach out to shake the person's hand. And then -- he's said this in affidavits, in the police reports -- he arrests the person's hand. And then we found out that in several cases, they don't even arrest the hand. They will actually pull the person out of the house and then arrest them on the porch."
Burrows said that one motivating factor behind the task force's behavior is probably the money it raises through asset forfeiture. "That's one of the more insidious parts of this," she said. "It's not only their methodologies, which are very questionable, but that they're making a lot of money for the Portland Police Bureau with these questionable methodologies."
Defense attorney Philip A. Lewis agrees. He said that the Portland task force represents "an independently funded, independently operated war on marijuana. And the reason they're going after marijuana is not because they're so down on marijuana, but because it's easy to do, and there's money in it. Rather than going after methamphetamine labs or major cocaine dealers, they go after mom-and-pop marijuana growers. Almost all the cases they make are relatively small cases, but they make money on it because they can legally force the owners to cough up a percentage of the equity on their homes."
This week, Judge Michael Marcus told attorneys for the task force and the city that they must produce documents detailing the trap and trace by May 4, or else admit that the procedure is illegal. If it is shown to be illegal, the defense attorneys must then try to prove that their clients' arrests stemmed directly from the operation.
Meanwhile, American Agriculture, the gardening store whose callers were traced, has filed suit against the task force. "First we have to file a preliminary injunction to make them stop trapping and tracing," said Spencer Neal, one of the attorneys representing the store. He said the task force still has not technically admitted the existence of the trap and trace, let alone confirmed whether the practice has stopped. He said the outcome of the criminal case will not affect American Agriculture's suit. "The criminal cases simply alerted us to the fact that the police were violating our clients' civil rights -- surprisingly enough."
Attorneys for the marijuana task force and the City of Portland have stated they are confident that the trap and trace operation will be proved legal. They were not available for comment on this story.
(Jeffrey Hauser, who recorded the conversation with the Portland officer that revealed the trap and trace, was acquitted in his marijuana cultivation case but now faces felony charges of impersonating an officer. The transcript of his conversation is a public document, and was originally published in Willamette Week. DRCNet has reproduced it on the web at http://www.drcnet.org/transcript.html.)