State v. Neff
246 Or. App. 186
Or. Ct. App.2011Background
- November 4, 2008, defendant pulled over by Eugene Police; officer informed encounter was being recorded; defendant secretly recorded the encounter with a device; defendant did not inform Officer Ou that he was recording; defendant charged with obtaining contents of communication under ORS 165.540(1)(c); bench trial resulted in conviction and $100 fine; trial court concluded defendant should have notified Officer Ou specifically; on appeal, defendant argues notice to all participants is not required when one participant already informs others; court reverses.
- The statute ORS 165.540(1)(c) prohibits obtaining a conversation by any device if not all participants are specifically informed that their conversation is being obtained.
- Question is whether one participant's notice satisfies the requirement that all participants be specifically informed when multiple parties are obtaining the same conversation.
- Court analyzes statutory text, context, and history to decide who must be informed and whether a single notice suffices; majority holds that the notice given by Ou satisfied the requirement because the conversation itself was being recorded and the statute focuses on informing participants of the obtaining, not identifying the recorder.
- The majority rejection of Judge Haselton’s dissent rests on the view that requiring separate notices for each recording would undermine the statute’s protective purpose for participants in conversations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice to all participants is required when multiple recorders obtain the same conversation. | State argues all participants must be separately informed that their conversation is being obtained. | Neff argues single notice by one participant suffices; multiple recorders need not each inform. | Notice by one participant suffices; conviction reversed. |
| Does the passive construction of 'is being obtained' exclude separate notices for each obtaining? | State relies on passive voice to emphasize informing participants. | Defendant argues ambiguity should require separate notices for each obtaining. | Textual context supports a single notice sufficing. |
| What does legislative history show about the intended scope of notice under ORS 165.540(1)(c)? | Legislative history offers little direct guidance. | Dissent emphasizes per-recording notice to protect each participant. | Legislative history does not resolve; statutory text and context govern. |
Key Cases Cited
- State v. Cunningham, 320 Or. 47 (1994) (standard for reasonable doubt and doctrinal context cited by court)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (textual/construction approach for statutory interpretation)
- State v. Gaines, 346 Or. 160 (2009) (contextual approach; legislative history aids interpretation when text unclear)
- State v. Jones, 339 Or. 438 (2005) (noting requiring 'specifically informed' for single-obtainer cases)
- State v. Lissy, 304 Or. 455 (1987) (wiretap statutory development and interpretation)