Pubdate: Wed, 17 Mar 1999 Source: Oregonian, The (OR) Copyright: 1999 The Oregonian Contact: 1320 SW Broadway, Portland, OR 97201 Fax: 503-294-4193 Website: http://www.oregonlive.com/ Forum: http://forums.oregonlive.com/ Author: Maxine Bernstein of The Oregonian staff CITY MUST EXPLAIN 'TRAP AND TRACE' OR CONCEDE IT'S ILLEGAL, JUDGE SAYS Portland Has To Decide Whether To Disclose How Its Marijuana Force Traced Calls To Identify 20 Defendants Now Facing Charges Portland must either disclose how its Marijuana Task Force used a "trap and trace" procedure to identify 20 defendants now charged with manufacturing the drug or it must concede that the practice was illegal, a judge ruled Tuesday. Multnomah County Circuit Judge Michael Marcus decided the defendants facing marijuana charges that resulted from a police trap and trace method have the right to examine the information that led officers to them and use it in their defense. Marcus gave the city until March 29 to announce how it will proceed. Deputy City Attorney David N. Lesh and Deputy District Attorney Jason Feldman said they needed time to consult with their bosses. Marcus, who has seen the police documents on the phone tapping used to track down suspected marijuana growers, said it was plausible that the actions were legal, but he said the defendants have a right to challenge them. "The trap and trace materials the defense seeks to obtain and the city seeks to protect are clearly necessary to determine the lawfulness of trap and trace evidence," Marcus said. "The defendants who are in fact here because of a trap and trace lead are entitled to have that litigated." According to documents the city provided the court, Portland's Marijuana Task Force has been trapping the phone of a Portland indoor-growing supply store, American Agriculture, since at least 1995. Police used the business' phone records to track down suspected marijuana growers by using callers' phone numbers to obtain their addresses. Two additional defendants joined the case Tuesday, bringing the total to 20 who are demanding to review police and court documents to determine if the trap and trace procedure is legal. Defense lawyer Philip A. Lewis, who represents two of the defendants, said he thought Marcus' decision was fair. Feldman, after court, stood by the legality of the trap and trace procedure and said he was not surprised by Marcus' ruling. "Ultimately, I think it's going to be proved to be legal," he said. If the city refuses to reveal the phone-trapping information and will not concede the practice is illegal, it also could dismiss the cases or seek an immediate appeal of Marcus' ruling that would take the proceedings to the Court of Appeals before the cases proceed. - --- MAP posted-by: Richard Lake