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interceptions. These include the crimes of robbery, burglary, and certain larcenies. It would appear much more logical to leave to each individual State the determination of which crimes may be encompassed within the court-ordered interception policy.

Another provision of the proposal worthy of further consideration is that which limits applications for a court order to the attorney general of a State or the principal prosecuting attorney for any political subdivision thereof. Thus it excludes police agencies from seeking their own orders.

This limitation fails to recognize the complex nature of a large metropolitan police department such as the 24,000-man force in New York City. By the very volume and nature of our work, this department conducts many independent investigations. So huge is our responsibility that there are five district attorneys within our jurisdictional boundaries. This department is professionalized, is not subject to political pressure or changes in political administrations, and should, in the public interest, be entitled to apply for and obtain its own orders. Even under our existing State law, which permits an application for an interception order to be made by a police officer above the rank of sergeant, there have been no abuses uncovered. To require the police to seek interception orders through a district attorney would impede enforcement and place an unfair burden on the staffs of the various district attorneys.

The principle of consolidating future experience by collecting statistical data on the utilization of the court-ordered telephonic interception procedures, as outlined in the Attorney General's proposal, is sound. However, we believe that there is no need to furnish copies of affidavits and orders in the manner prescribed under section 9(a) of the bill. It has been our experience that, as far as humanly possible, the number of individuals who have access to the detailed information on which an interception is authorized should be kept at the absolute minmum. In order to be effective, we must protect the anonymity of informants and the sources of the confidential information upon which a successful investigation necessarily depends. Tightening of the safeguards against the possibility of this information falling into unauthorized hands is most desirable. We recommend, therefore, that section 9(a) be amended to provide a system whereby the necessary statistical information is furnished to a central agency on a regular basis without the concomitant furnishing of orders and applications. Finally, we urge that section 6 of the proposal be amended to permit the disclosure of the contents of court ordered interceptions in departmental hearings. To maintain our efforts against criminal elements we must be constantly alert to root out and rid the city of corrupt police officers. There is no one more reprehensible than a police officer who has been faithless to his sworn duty. The police commissioner feels an intense sense of frustration when he knows that our internal investigations are slowed, and at times completely stymied, by the inability to utilize court ordered interceptions in ridding the department of faithless officers.

The position of law enforcement officials, including prosecutors, officials of crime commissions, attorneys general, police and others, is being presented to this committee. In their judgment, it is unfair to disarm law enforcement of a powerful weapon and, at the same time, to permit organized crime to continue to utilize the telephone as an instrument of evil. Within reasonable limits, which we do not suggest be exceeded, we must have this weapon to defeat the criminal enemy and defend the American people. As on the international level, domestic unilateral disarmament is unthinkable.

Mr. REISMAN. Thank you very much, Senator.

May I just make this point. We have received a letter from Mr. Wilson, the superintendent of police of Chicago, who wished me, on his behalf, to submit for the record again his statement of last year, at which time he submitted a rather full statement supporting the general position.

Accordingly, may I ask that his subcommittee statement of last year be considered a part of the record of this year.

Senator CARROLL. Without objection, so ordered.

(The document referred to follows:)

STATEMENT OF O. W. WILSON, SUPERINTENDENT OF THE CHICAGO POLICE

DEPARTMENT, MAY 10, 1961

I presume that I have been invited to give testimony before this subcommittee because I am a chief law enforcement official in a State (Illinois) which prohibits any form of wiretapping or electronic eavesdropping. Presumably, our experience with law enforcement in Illinois under such rigorous restrictions is of interest to the members of the subcommittee in determining whether we in Illinois have found from experience that our eavesdropping law places too great a handicap on the police in their fight against crime.

Chapter 38, sections 206.1 through 206.5, of the Illinois Revised Statutes is very comprehensive in its prohibition of any form of wiretapping or electronic eavesdropping. The only exceptions permitted are that we may listen to TV and radio broadcasts and to certain emergency communications made in the normal course of operations by a Federal, State, or local law enforcement agency or an institution dealing in emergency services, such as public utility repair services, civilian defense, and the like. Another exception permits employees of telephone companies to listen on lines while performing maintenance or repair services, provided they do not divulge any conversations overheard in the process.

The law imposes a fine of not less than $100 nor more than $1,000 or not less than 10 days nor more than 1 year in the county jail, or both, for violations. Anyone who uses information obtained by electronic eavesdropping is also subject to the same penalties.

The law also permits civil damages, both actual and punitive, to be awarded any or all parties to a conversation upon which electronic eavesdropping was practiced and forbids the introduction of any evidence gained through electronic eavesdropping in any trial, civil or criminal, or in any administrative or legislative inquiry or grand jury proceeding.

This law went into effect on July 10, 1957. I do not know of any civil or criminal actions that have been taken pursuant to this act as yet. I doubt that there have been any for the simple reason that wiretapping or electronic eavesdropping is very difficult to detect and even when detected, it is usually impossible to identify the persons responsible.

A law like our Illinois law effectively curbs police use of this technique in gathering evidence but I seriously doubt that the law has any effect on the use of wiretapping or electronic eavesdropping devices by private detectives or investigators. I have no personal experience on which to base this observation but I believe this conclusion is borne out by Samuel Dash and others who have made studies in this field and whose testimony has already been given to this subcommittee. As I see it, as long as Illinois and Federal law forbid wiretapping and electronic eavesdropping, Chicago and other police departments in Illinois have no alternative but to abide by the law.

It is impossible for anyone to say specifically to what degree these laws have tied the hands of the police and prevented effective law enforcement. The fact that criminal "higher-ups are rarely convicted of the crimes they actually commit but only of income tax evasions is some reflection of the dilemma society faces, however, in its concern with the civil rights of the individual on the one hand and the suppression of organized crime on the other.

Dr. Samuel Johnson, some 200 years ago, stated the dilemma and emphasized its apparent insolubility when he said, "The danger of unbounded liberty and the danger of bounding it have produced a problem in the science of government which human understanding seems hitherto unable to solve." One might comment that Johnson was being unduly optimistic when he modified his statement by the insertion of the word "hitherto."

I am against rules of evidence which exclude relevant facts bearing on the guilt or innocence of an accused on some collateral issue which has no real bearing on the probative value or weight to be given to the evidence. The so-called exclusionary rule is not imposed upon us by the Federal Constitution or so far as I know by any of the State constitutions. It appears in some statutes, such as in Illinois, but in the main it is judge-made law which is aimed to enforce police adherence to various constitutional guaranties of individual liberty through "punishing" the law enforcement officer by excluding evidence he has obtained ostensibly in violation of such constitutional guaranties. But the exclusionary

rule does not punish the offending officer, it punishes society as a whole. The criminal meanwhile goes free.

During the past decade, the police of this country have been strengthened in number, in training, and in equipment. They are better organized and are using more progressive procedures to prevent crime and to apprehend criminals than ever before in their history. Crime increases during the past decade have not resulted from a decrease in police effectiveness; they must be accounted for by other factors.

The effectiveness of a free society in controlling criminals may be measured in part by its success in convicting defendants. Comparison of 1957, 1958, and 1959 conviction rates with the average for the previous 5-year period in offenses included in the new crime index (excluding forcible rape, for which statistics are not available prior to 1958) and in four other classes of crimes (stolen property offenses, weapons offenses, narcotic law violations, and gambling) reveal a startling trend, as is shown in the table annexed hereto.

In each of these crime categories (except homicides and narcotics offenses in 1957 and auto thefts in 1959), the 1957, 1958, and 1959 conviction rates are lower than the average for the preceding 5 years. The 1957-59 average shows that conviction rates for robbery have dropped 16 percent, for aggravated assault 15 percent, for burglary 8.5 percent, for stolen property offenses 11 percent, for weapons offenses 17 percent, for narcotic offenses 3.1 percent, and for gambling offenses 26.3 percent. Only in homicides and auto thefts have we managed to hold our own in convictions.

Decreases of such magnitude in conviction may be taken, with the persistent increase in crime, as a warning that the scales of justice are getting out of balance. Where lies the fault? There is no indication that police procedures used in marshaling evidence against the defendant are becoming less effective; indeed, the reverse seems more likely. Nor does it seem that prosecutors have grown less vigorous or that defense attorneys have suddenly discovered new and more successful techniques. May the explanation be found in the restrictions that have been imposed on the police by appellate decisions?

The discrepancy between what the people expect the police to do and what the police are privileged to do in protecting public peace and security results principally from a lack of understanding of the police purpose and of what the police must do to accomplish it.

The police must accept some blame for lack of public confidence in the means they use to achieve their purpose. Police abuse of their authority must be eliminated, not by withdrawing essential authority or by freeing the guilty criminal, but by raising police standards to a level of trustworthiness and by some action which will penalize the community that employs an officer who abuses his privileges.

Police leadership has been dilatory in raising service qualifications and ethical standards. However, the police now have an acceptable code of ethics and their qualification standards are being raised from coast to coast. Each local community should insist on improvement in the quality of its police service until all have achieved professional status. The community that is penalized for violations of the constitutional rights of citizens by its police will be likely to demand both higher standards and disciplinary action against the offending officer.

Lack of public understanding of the police purpose and what the police must do to accomplish it is accentuated by two circumstances that tend to cast the police in the role of agents bent on unnecessarily oppressing freedom. The first grows out of police responsibility in the enforcement of traffic and other regulatory laws sometimes violated by the most conscientious citizen, an enforcement that alines good citizens against the police. The other is ignorance of the facts involved in the war against crime in a free society. People are apt to fear and hate what they do not understand-and the hate is often stimulated by traffic violation experiences.

The misunderstandings continue unabated because the police are not a vocal, scholarly group that devotes much time to presenting in a favorable light the facts that bear on the problem. The literature in consequence is principally devoted to the case against the police; little has been written in their defense. The press, the literature, and even case law are all directed at incidents that discredit the police. Small wonder that those who read the papers or research the literature and case law conclude that the police are evil. Information on which a fairer judgment might be based is not generally circulated.

Highly intelligent people ponder the police role as a hypothetical abstraction, in ignorance of the true facts, and conceive the police to be a potential instrument of tyranny which will destroy the essential liberties of a free society. Since their reading and research are restricted to incidents that discredit the police, they conclude that all police are bad. These citizens, as protectors of liberty and freedom, then aline themselves against the police without giving attention to the cost of criminal depredations.

Police abuse of authority with criminal intent resulting in serious offenses must always be dealt with by criminal prosecution and disciplinary action. Establishing safeguards against abuse of authority by the overzealous policeman in the day-to-day performance of his duty presents quite a different problem. Safeguards that weaken law enforcement or free the guilty are socially undesirable; if possible the problem should be solved in some other way.

Civil suits for damages filed against the individual officer have not proved adequately effective in preventing police abuse of authority. Were this procedure effective, however, it would emasculate vigorous police action and law enforcement would be weakened at a time when it needs to be strengthened.

Negating police overzealousness by freeing guilty defendants violates the principle that the guilty should be adjudged guilty, punishes society rather than the policeman, rewards the guilty, and is a miscarriage of justice. Its effectiveness as a control of police abuse of authority has not been demonstrated. The Committee on Criminal Law and Procedure of the California State Bar proposed that—

“*** the answer might lie in a new kind of civil action or better, a summary type of proceeding, for a substantial money judgment in favor of the wronged individual, whether innocent or guilty, and against the political subdivision whose enforcement officers violated that person's rights. After not many outlays of public funds the taxpayers and administrative heads would insist upon curbing unlawful police action.'

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Prof. Edward L. Barrett, Jr., of the University of California Law School, in commenting on this proposal, stated:

"Legislative action along these general lines gives promise of providing a more adequate solution than the exclusionary rule at a smaller social cost *** The remedy would be available to the innocent as well as the guilty, for the illegal arrest as well as the illegal search. The courts would have frequent opportunities for ruling on the legality of police action, for enunciating and developing the governing law. If in any such community a substantial number of such actions become successful, the financial pressure on the police to conform more closely to judicial standards would doubtless follow. Finally, if a careful line is drawn between those situations where increased personal liability should be placed upon the individual policeman (basically those involving serious and intentional violations of law) and those where he should be immunized and sole liability placed upon the governmental agency, interference with the efficient functioning of law enforcement would be minimized."

99 2

I have reviewed Senate bills 1086, 1221, and 1495 and I believe that any of these bills would improve the present state of the law pertaining to wiretapping and electronic eavesdropping. My one comment would be that none of these bills should prescribe in detail how and before what court or other body a police officer of the State must apply for a warrant for permission to wiretap or employ an electronic eavesdropping device. It seems to me that these details should be left to the individual States.

All three Senate bills seem to be drafted with the New York law in mind. This may be a good solution for New York and other States where the exclusionary rule of evidence does not apply. But what of other States like Illinois where it does apply? If we had the New York wiretapping statute in Illinois where the exclusionary rule obtains, it is doubtful that the situation would be helped much. In every case where wiretapping or electronic eavesdropping were employed, defense counsel would make a motion to suppress the evidence and thereby secure a review of the facts upon which the court originally issued the warrant granting permission to employ electronic eavesdropping. Conceivably, months of costly investigative effort could be nullified by technicalities which cannot be raised in New York or other States which do not follow the ex

129 Cal. St. Bar Jour. 263-264 (1954).

2 43 Calif. L. Rev. 565, 595 (1955).

clusionary rule. Indeed, Senate bill 1495 (sec. 5c) would seem to impose the
exclusionary rule (insofar as it pertains to evidence secured by wiretapping)
on New York and other States not now following this rule.

Proportion of persons charged who were convicted in 1957-59, and a comparison
of the average of these 3 years with previous 5-year average

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Senator HART. Commissioner, I said I was impressed by your
statement, and that is true.

But I should note one comment on which

I would suggest, perhaps, a divergence of view.

You say in your statement that we, the committee, have heard dis-
tinguished law enforcement officials give their experienced opinion
on the need for this legislation.

In your judgment their opinion should be controlling in our con-
sideration of this matter.

Well, they are certainly going to be considered, and it is our re-
sponsibility to evaluate them. But I would not anticipate many pro-
tests from law enforcement officials against the extension of the use
of wiretapping.

I think the fact that most of them favor it certainly does not con-
clude the question.

Mr. REISMAN. Senator, may I make this point: I have spent a few
years in law enforcement work, but I was not born with a shield on.
As a matter of fact, I spent some years in the military service, some
years in criminal defense work, and some pleasant years in the so-
called Wall Street practice of the law.

I think that we in law enforcement are not arbitrary or narrow
in our appraisal of our problems.

As Mr. Silver said, he had children and grandchildren, and it is
our intention to preserve the liberties of this country for all of us.
But I accept your suggestion that there are other voices that will be
heard. Thank you.

Senator CARROLL. Senator Hart, I might say while you stepped out
momentarily, I asked a question that if some of us were interested
in taking a look-he has about 12 men in the New York Police De-
partment who are skilled in this field-and whatever equipment they
have they would be glad to show us. He said it is not the most mod-
ern equipment; he said he would be glad to show us how they do it,
and what they do, and he has brought forward for the first time, at
least for myself, so that I have a concept of how they do these things,
how they offer it in evidence, and if you would be good enough to

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