The application must contain certain statements, among which are: (1) There are reasonable grounds to believe that a crime has been committed or is about to be committed. (2) There are reasonable grounds to believe that evidence will be obtained essential to the solution of such crime, or which may enable the prevention of such crime. (3) There are no other means readily available for obtaining such information. Identification of the telephone or telegraph line from which information is to be obtained, and the purpose thereof, shall be made "as fully as possible" in both application and order. Orders shall not be effective longer than 30 days, but may be renewed or continued, in the discretion of the court, for an additional period not to exceed 30 days, on application of officer securing original. The use in court of evidence obtained by wiretapping is limited to that obtained in conformity with this legislation, and then only in a prosecution for the crime or crimes' specified in the court order, in the circuit courts of the State, or in the criminal courts of Baltimore City. Annotated Code (Flack, 1957 Com. Supp.) article 35, section 100 and the following. New York.-Ex parte orders for the interception, overhearing, or recording of telegraphic or telephonic communications may be issued by judges of designated courts upon oath or affirmation of a district attorney, the attorney general, or any police officer above the rank of sergeant that there is reasonable ground to believe that evidence of crime may be thus obtained. The words "overhearing or recording" are designed to cover eavesdropping and were added to the law in 1957. Identification of telephone number, or telegraph line, and description of persons whose communications are to be intercepted, overheard, or recorded, and the purposes thereof are required. Such orders are effective for a specified time not exceeding 2 months, but may be extended or renewed by the issuing judge upon his being convinced that a renewal is in the public interest. Criminal Code (McKinney, 1945), section 813-a. This legislation contains no prohibition against the use in court of evidence obtained by wiretapping not conducted in conformity therewith. By reason of their application of the colateral evidence rule, evidence thus acquired is admissible in New York courts (People v. Katz (1952) 114 N. Y. S. 2d 360). The legality of this legislation has been denied by State Supreme Court Justice Samuel H. Hofstedter in his ruling of January 2, 1958 in In the Matter of Interception of Telephone Communications (New York Law Journal, Jan. 3, 1958, p. 1, col. 5). The justice said that under the decision of the United States v. Benanti (26 U. S. Law Week, 4045), decided December 9, 1957, no wiretap order pursuant to section 813-a of the Code of Criminal Procedure may lawfully be issued. He further said: "As we have no system of advisory opinions in this State and, according to our practice, applications for wiretaps are made at special term, part II, this memorandum will apprise enforcement and prosecuting officers that while I preside at special term, part II, during this month no application for a wiretap order will be honored. "Under the decision in Benanti, orders authorizing interceptions are contrary in controlling Federal law. Its authority requires me, therefore, to deny any application for such an order. For all wiretaps, whether 'authorized' or not in this State are now illegal. ***" Justice Hofstedter's memorandum opinion as such cannot be contested directly to the State's appellate division, however, if an enforcement official submits a wiretap order to the justice, and he refused to sign it, the official then may appeal the decision to the higher court. Oregon.-Ex parte orders for interception of telecommunications or radio communications, as such terms are defined1 may be issued by judges of designated courts upon verified application of a district attorney. Certain statements must be set forth in the application among which are the following: (a) There are reasonable grounds to believe that a crime directly and immediately affecting the safety of human life or the national security has been committed or is about to be committed. (b) There are reasonable grounds to believe that evidence will be obtained essential to the solution of such crime, or which may enable the prevention of such crime. (c) There are no other means readily available for obtaining such information. The application and any order issued thereon shall identify "fully” the telephone or telegraph line, or other telecommunication or radio communication carrier or channel from which the information is to be obtained and the purpose thereof. Orders shall not be effective longer than 60 days, but may be renewed or continued, in the discretion of the court, for an additional period of not to exceed 60 days, on application of officer securing original. There may be further renewals thereafter for a period not to exceed 30 days (Rev. Stat. (1953) § 141.720). Evidence of the contents of any telecommunication or radio communication obtained without a court order shall not be admissible in any court of the State (Rev. Stat. (1953) sec. 41.910). II. The following States exempt their law enforcement officers from the operation of their laws prohibiting the tapping of communication lines without the owner's consent. Louisiana. Revised Statutes (West, 1950), title 14, section 322. Massachusetts.-Annotated Laws (1953) chapter 272, sections 99-102. These provisions penalize "eavesdropping" with the aid of dictagraphs, dictophones, or wiretaps, except when authorized by the attorney general or by a district attorney; and prescribe wiretapping "with intent to procure information concerning any official" matter or to injure another. Valli v. U. S. (1938) 304 U. S. 586. Oklahoma.-Statutes Annotated (West, 1937), title 21, section 1782. This provision makes it a misdemeanor to disclose the contents of a telegraphic or telephonic communication without the addressee's consent or without lawful court order, and with intent to cause injury to the addressee or with resulting actual injury to the latter. III. States which have enacted legislation (a) prohibiting physical interference with wires through cutting, injuring, or molesting the same, (b) or which forbid interference with messages, or current, or interruption of communication, (c) or which prohibit wiretapping and (d) divulgence or use of wiretapped information, except (e) on order of a court, or (f) which prohibit electronic eavesdropping. 1 "Radio communication" means the transmission by radio or other wireless methods of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (including, among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. "Telecommunication" means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other similar connection between the points of origin, and reception of such transmission, including all instrumentalities, facilities, and services (including, among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. References Code (1940), title 14, sec. 84 (18); title 48, secs. 414-416. Stat. Ann. (1947), sec. 73-1810. Penal Code (Deering, 1949), secs. 591, 619, 640, 641. Rev. Stat. (1953), sec. 40-4-17. Gen. Stat. (1949), sec. 8478. Code Ann. (1953), title 11, secs. 754, 756-757. Stat. Ann. (1944), sec. 822.10. Code Ann. (1953), sec. 26-8814, Supp. (1957), sec. 26-3805. Ann. Stat. (Smith-Hurd, 1936), ch. 134, secs. 15a, 16; Laws Ann. Stat. (Burns, 1942), sec. 10-4518. Code Ann. (West, 1950), secs. 716.7 to 716.8. Gen. Stat. Ann. (Corrick, 1949) secs. 17-1907 to 17-1908. Rev. Stat. (1918) sec. 433.430. Rev. Stat. (1954) ch. 131 sec. 13. Stat. Ann. (1938) sec. 28.808. Stat. Ann. (1947) secs. 620.65, 621.21 (6), 621.33. Code Ann. (1942) secs. 2381-2382. Ann. Stat. (Vernon, 1953) sec. 560.310. Rev. Code Ann. (1947) secs. 94-3203, 94-3321, 94-35-220 (prohibition against disclosure limited to telegrams). Rev. Stat. (1950) sec. 86-328. Comp. Laws (Hillyer, 1929) secs. 7645, 7647, 7649-7650, 7652, 7680-7681, 10434 (6, 18). Rev. Stat. Ann. (1955) sec. 572.3. Stat. Ann. (West, 1939, revised book 7, 1953) secs. 2A:146-1, 2A:146-2. Stat. Ann. (1953), sec. 40-37-5. Gen. Stat. Ann. (1943) secs. 14-154 to 14-155, 14-157 to 14-158. Rev. Code Ann. (Page, 1954), sec. 4931.28. Stat. Ann. (Purden, 1939) title 18. sec. 4689; (supp. 1956) title 18, sec. 4916, laws 1947, Senate bill No. 97. Gen. Laws (1938) ch. 608 secs 47-48, 73; Laws 1949 ch. 2325 (prohibition of disclosure limited to telegrams by company employees). Code (1952) sec. 58-316. Code (1939) secs. 13.4511, 13.4519. Code Ann. (1955) secs. 39-4533, 65-2117, 65-2118. Code Ann. (1953) secs. 76-48-6, 76–48-11, 76-48-13. Comment: In at least two articles appearing in law journals there is contained the assertion that "prosecutions for wiretapping in violation" of the statutory provisions set forth above "seem to have been rare. In two reported cases, the prosecutions failed because the defendant's acts were not within the terms of the governing statute." State v. Behringer ((1918) 19 Ariz. 502; 172 P. 660): State v. Nordskeg ((1913) 76 Wash. 472; 136 P. 694). In the first case, a private citizen who overheard messages delivered over a telephone by placing a dictograph in the transom of the room containing the former was held to be an eavesdropper who heard messages as they were spoken into the telephone transmitter and not while they were sent over the lines. In the second case, a statute prohibiting physical damage to telephone equipment was held inadequate to support a prosecution for wiretapping which was consummated without physical damage. (33 Cornell L. Quar. 73, 77 (1947); 13 Md. L. R. 235, 239 (1953).) Illinois, last year, defined and prohibited the practice of electronic eavesdropping. As so defined the term means "the use of any device employing electricity to hear or record, or both, all or any part of any oral conversation (devices for the restoration of the deaf or hard of hearing to normal or partial hearing excepted) without consent of any party thereto, whether such conversation is conducted in person or by telephone; ***" Certain types of cases are excepted, such as listening to radio, wireless, and television communications publicly made; conversation heard by employees of a common carrier by wire in the normal course of employment; or the recording or listening to emergency communications of any Federal, State, or local law enforcement agency or institution dealing in emergency services. For all practical purposes the prohibition appears complete. Any evidence obtained in violation of this legislation is not admissible in any civil or criminal trial, or any administrative or legislative inquiry or proceeding, nor in any grand jury proceeding. IV. States which by law expressly forbid testifying concerning wiretapped information. Delaware (Code Ann. (1953) Tit. 11, sec. 757) New Jersey (Stat. Ann. (West. 1939) sec. 2A:146–1) V. States whose courts have determined that wiretapping is not an unreasonable search and seizure and that introduction in court of evidence obtained thereby does not offend any provisions in their State constitution and statutes. Texas: Schwartz v. State ((1952) 246 S. W. (2d) 174; 344 U. S. 199). (See also, Code of Criminal Procedure (Vernon, Supp. 1953) article 727a) VI. States whose courts apply the collateral evidence rule whereunder evidence is admissible notwithstanding that it may have been obtained by methods amounting to an unreasonable search and seizure. By applying this principle to the disposition of controversies arising out of the introduction of evidence obtained by wiretapping, courts in these States obviously can destroy, if in fact they have not already done so, the efficacy of any restraints on wiretapping adopted by legislatures. Excluded from this observation are Delaware and New Jersey which, by law, prohibit testifying concerning wiretapped information and Texas which already has concluded that wiretapping does not amount to an unreasonable search and seizure. PART III. COURT DECISIONS SECTION A. COMPILATION OF COURT DECISIONS RELATING TO WIRETAPPING MAY 7, 1958. To: Hon. Thomas C. Hennings, Jr., Chairman, Subcommittee on Constitutional From: American Law Division, Library of Congress. I. FEDERAL CASES a. Olmstead v. United States, 277 U. S. 438; 19 Fed. 2nd 843. b. Foley v. United States, 64 Fed. 2nd 1. c. Beard v. United States, 65 D. C. App. 231. d. Nardone v. United States, 302 U. S. 379; 82 Fed. 2nd 837. e. Smith v. United States, 91 Fed. 2nd 556; 67 D. C. App. 251. f. United States v. Bonanzi, 94 Fed. 2nd 570. g. Valli v. United States, 94 Fed. 2nd 687. q. Billeci v. United States, 184 Fed. 2nd 394. r. Lee v. United States, 343 U. S. 747; 193 Fed. 2nd 306. s. Schwartz v. State of Texas, 344 U. S. 199; 246 S. W. 2nd 174. t. United States v. Pierce, 124 Fed. Suppl. 264. u. Coplon v. United States, 191 Fed. 2nd 749. v. Caldwell v. United States, 205 Fed. 2nd 879. a. California: II. STATE CASES 1. Ex parte McDonough, 21 Calif. App. 2nd 287; 68 Pac. 2nd 1020. 3. People v. Vertieb, 22 Calif. 2nd 193; 137 Pac. 2nd 437. 4. People v. Onofrio, 65 Calif. App. 584; 151 Pac. 2nd 158. 5. People v. Collins, 80 Calif. App. 2nd 526; 182 Pac. 2nd 585. 6. People v. Channell, 236 Pac. 2nd 654, 658. b. Maryland: 1. Hitzetberger v. State, 174 Md. 152; 197 Atl. 605. 3. McGuire v. State, 92 Atl. 2nd 582, 200 Md. 601. c. Minnesota : 1. State v. Raosch, 201 Minn. 158; 275 N. W. 620. d. New York: 1. Re Davis, 299 N. Y. Suppl. 632; 252 N. Y. App. Div. 591. 2. Harlem Check Cashing Corp. v. Bell, 111 N. Y. Suppl. 2nd 402. 3. Black v. Impelliterri, 111 N. Y. Suppl. 2nd 402. 4. People v. Katz, 114 N. Y. Suppl. 2nd 360. 5. Oppenheimer v. Cohen, 140 N. Y. Suppl. 2nd 546. e. Pennsylvania: 1. Commonwealth v. Chaitt, 176 Pa. Super. 318; 107 Atl. 2nd 214. f. Rhode Island: 40 1. Yound v. Young, 56 R. I. 401; 185 Atl. 901. GROVER S. WILLIAMS. |