566 P.3d 710
Or. Ct. App.2025Background
- Sean Everett Limbeck was convicted of second-degree sexual abuse in Marion County, Oregon.
- The victim, cooperating with police, agreed to wear a hidden recording device (body wire) during a conversation with Limbeck as part of an investigation.
- Detective Lathrop obtained a court order for intercepting the conversation under state law (ORS 133.726(3)), though the victim's consent was also present.
- Limbeck moved to suppress the recording, arguing the application for the recording order did not comply with federal law (specifically, 18 USC § 2516(2)), which requires such applications to be made by a specific prosecuting attorney.
- The trial court denied the motion to suppress, holding that one-party consent exceptions applied, and the evidence was admissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court order for a consensual recording must be made by the "principal prosecuting attorney" under federal law | Order was proper and federal law does not require this for one-party consent | Only a principal prosecuting attorney could lawfully seek the order, so evidence should be suppressed | No requirement for principal prosecuting attorney; one-party consent exception applies |
| Applicability of the one-party consent exception in federal wiretap law | Victim's consent negates strict application requirements | Even with consent, request for order triggered stricter requirements | One-party consent under § 2511(2)(c) exempts this scenario |
| Whether State v. Harris required suppression | Harris is inapplicable due to lack of consent in that case | Harris requires suppression because procedures were not followed | Harris is inapplicable where one-party consents to recording |
| Admissibility of body-wire recording evidence | Recording is lawful and admissible | Recording is unlawful, must be suppressed | Evidence lawfully obtained, suppression motion denied |
Key Cases Cited
- State v. Lissy, 304 Or 455 (Or. 1987) (held that federal wiretap law does not require a court order when one party to the communication consents)
- State v. Harris, 369 Or 628 (Or. 2022) (suppressed evidence where principal prosecuting attorney did not apply for wiretap order, but distinguished here because victim consented)
- State v. Heise-Fay, 274 Or App 196 (Or. Ct. App. 2015) (standard of review for motions to suppress)
- State v. Monger, 306 Or App 50 (Or. Ct. App. 2020) (appellate standard for reviewing denial of motion to suppress)