In the final analysis, however, even those members of the Committee philosophically opposed to all wiretapping were induced by essentially pragmatic considerations to join in the Committee's conclusion that the national policy should officially shift from absolute prohibition of wiretapping to "controlled” wiretapping. For it is clear from a number of authoritative studies that, in the face of the present national policy, wiretapping by law-enforcement officials and others is now so widespread and entrenched a practice throughout the nation that it would be illusory to believe any complete prohibition could be made effectual, or that it would comport with public opinion.18 These studies, moreover, indicate that the trend of both public and expert opinion is now in the direction of "controlled" wiretapping by law-enforcement officials, under continuous and close supervision.

Our Committee believes this trend may be salutary, and that a desirable solution may be achieved if-but only if-the controls under which the law-enforcement officials are permitted to engage in wiretapping are meaningful and adequate. Incorporation of such meaningful and adequate controls should be an absolute

"A telephone interception is a far more devastating measure than any search warrant. A search warrant is confined to a definite place and to specific items or, at least, to items of a stated class or description. Those in possession of the searched premises know the search is going on and, when the officer has completed his search, whether successfully or not, he departs. Not so, in the case of a telephone interception. The interception order is obtained ex parte and the person whose line is to be tapped is, of course, in ignorance of the fact. The tap is maintained continuously, day and night. Everything said over the line is heard, however foreign to the stated objective of the law-enforcement officers. The most intimate conversations, personal, social, professional, business or even confidential of an unlimited number of persons may be laid bare. In effect, the line of everyone who is called from or makes a call to the tapped line at any time is being tapped during the maintenance of the tap. When a line in a public telephone booth is tapped, as has on occasion been done, the conversations of people having no relation of any kind to the operator of the place in which the booth is situated or the person whose line is tapped, are overheard. It is little wonder that Justice Brandeis was moved to say in the Olmstead case: 'As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.' (277 US. 438, 476.)"

13 See, for example: DASH, SCHwartz, Knowlton, THE EAVESDROPPERS (1959); Westin, Wiretapping: The Quiet Revolution, Commentary Magazine April 1960 (reprinted in Hearings, C.R. Sen. Judiciary, Part 5, pp. 1957-1964); Westin, The Wire-Tapping Problem, 52 Col. L. Rev. 165; Rozenzweig, The Law of Wire Tapping, 32 Cornell L.Q. 514, 33 Cornell L.Q. 73.

condition to the shift in national policy sought by such measures as S. 3340. Discussed below are the important deficiencies of S. 3340 in this regard.

(B) Deficiencies of S. 3340.

The deficiencies of S. 3340 may be grouped in 4 categories, as follows: (1) lack of limitation in respect of type of crime; (2) lack of specification of requirements for obtaining court orders and maintaining records; (3) lack of prohibition of use of evidence obtained in violation of the statute; (4) lack of provision for federal surveillance.

(1) Lack of limitation in respect of type of crime. If a state court order is obtained, the bill would legalize state wiretapping in the investigation of any crime, even the pettiest misdemeanor. The sweep of the New York statute which it follows in this regard has been the subject of severe criticism;14 we do not believe it should be permitted to set the standard for revised federal policy in the regulation of our nation-wide system of telephone communication.

A Nevada statute, enacted in 1957, authorizes court wiretap orders only where "there are reasonable grounds to believe that the crime of murder, kidnapping, extortion, bribery or crime of endangering the national defense or a violation of the Uniform Narcotic Drug Act has been committed or is about to be committed." 15 Limitation of wiretaps to more serious crimes of this type accords with a substantial body of expert opinion.16

Our Committee believes that such limitation to more serious crimes is highly desirable in order to curtail invasion of the right

14 See authorities cited on the preceding page. See also the critical pronouncement of an incumbent Justice of the New York Supreme Court, based on his extensive first-hand experience with wiretapping under the New York statute, In the Matter of the Interception of Telephone Communications of Anonymous, (supra).

"New York Special Sessions Justice Frank Oliver testified that the court order had proved ineffective as a means of protecting the citizen, and that delegates to the constitutional convention never imagined that such orders 'would be issued on trivial grounds or in cases involving only suspicion of a misdemeanor or offense.'" (Westin, The Wire-Tapping Problem, 52 Col. L. Rev. 165, 195) 15 Nev. Stat. ch. 242 (1957); see Appendix.

16 For example, limitation to crimes "directly and immediately affecting the safety of human life" (Westin, The Wire-Tapping Problem, 52 Col. L. Rev. at 203); limitation to cases involving national security, treason, sabotage, espionage and related offenses (Mr. Edward B. Williams, Hearings, C.R. Subcom. Sen. Judiciary,

of privacy, but we do not favor limitation based on specific crimes. To avoid the gaps which may result from such specific enumeration, and to allow for some latitude in the various state criminal concepts, it is our recommendation that wiretap orders be limited to crimes punishable by maximum sentences of 5 years or longer. While we do not profess certitude that such a limitation would draw the line at precisely the optimum point, we feel it would be an appropriate starting point for the revised national policy, subject to revision in the light of the experience data which would be assembled pursuant to our fourth proposal discussed below.

(2) Lack of specification of requirements for obtaining court order and maintaining records. Authoritative studies of day to day practices in states which have statutes authorizing wiretapping emphasize the importance of spelling out in the statute the procedural and substantive requirements for obtaining the court order, in order to guard against perfunctory issuance of such orders on the basis of an inadequate showing; and also the requirement for the proper maintenance of records.17

Part 5, p. 1485). At the federal level, H.R. 70, introduced by Congressman Celler during the preceding Congressional session would limit wiretapping by federal officials, pursuant to court order, to the crimes of espionage, kidnapping, sabotage, treason, sedition, and defined subversive activities. In connection with federal wiretapping, the Attorney General and the Director of the FBI have asserted that wiretaps are authorized by the Attorney General "only in cases involving the internal security of the Nation or where a human life may be imperilled such as kidnapping." (Hearings, C.R. Subcom. Sen. Judiciary, Part 5, pp. 1481-2).

17 See, for example, DASH, Schwartz, KnowLTON, THE EAVESDROPPERS (1959) pp. 44-70; Westin, The Wire-Tapping Problem, 52 Col. L. Rev. 165, 203. See also id. at p. 196, in which a former Assistant District Attorney in New York is quoted as having stated in a report filed in connection with a Grand Jury investigation:

no records were kept of the telephone conversations intercepted so that officers procured information which they were able to sell without suspicion of their superiors in the police department. On the basis of testimony given by high-ranking police officials called before the Grand Jury [the report] asserted that authority to tap telephones was being obtained on false affidavits. 'Dishonest statements' were used by policemen to obtain warrants; applications for wire-tapping warrants were often made without any information to support the requests This was an admitted practice in many parts of the Police Department. Without facts and without any information, members of the department supported their applications with such statements as a matter of convenience and as an expedient to obtain an order."

In 1957 and 1958 various safeguards were added to the New York law, designed in part to eliminate abuses such as those mentioned above; N.Y. Penal Law 88739-745

We believe, therefore, that any federal legislation authorizing wiretapping pursuant to court order under state statute, should require that such an order be issued only upon an application which states the grounds therefor with a high degree of particularity. The federal legislation should include provisions to the effect that an ex parte order of a state court for the interception of a communication can be issued only upon an application of a designated responsible official setting forth fully the facts and circumstances upon which the application is based, showing that reasonable grounds exist for belief that such interception may disclose evidence of the commission of the crime punishable under the laws of that state by a maximum sentence of five years or longer. Compare Subdivision 1 of Section 7 of the Nevada wiretapping statute (Chapter 242, Nevada Statutes, 1957).18 Without necessarily endorsing every detail, we also believe that provisions along the line of those contained in Section 7, Subdivisions 2 through 6, and Sections 8 and 9 of the Nevada Statute should be required by S. 3340 or by any other federal legislation which proposes to give federal sanction to wiretapping under state statutes. Excerpts from the Nevada Statute are set forth in the appendix of this report.

(3) Lack of Prohibition of Use of Evidence Obtained in Violation of the Statute. Some states which have statutes authorizing wiretapping pursuant to court order, nevertheless permit evidence obtained in violation of the statute to be received in evidence upon the trial.19 In our federal courts, a firm line of decisions prohibits the admission of evidence obtained directly

18 As has previously been pointed out, our Committee does not recommend the Nevada statute's enumeration of specific crimes for which wiretapping may be permitted, but rather the establishment of a standard for limitation to the more serious crimes.

19 In New York this has long been the rule; Matter of Davis, 252 App. Div. 591. 598; Peo. v. McDonald, 177 App. Div. 806, 809; Peo. v. Katz, 201 Misc. 414. In recent years, the New York Legislature has acted to exclude illegally obtained wiretap evidence. In 1957 receipt of illegally obtained wiretap evidence was prohibited in civil trials; §345-a Civil Practice Act. In 1959 the Legislature sought to amend this provision to extend the exclusionary rule to criminal trials, but the legislation was vetoed by the Governor (Hearings, C.R. Subcom., Sen. Judiciary, Pt 5, PP. 18771879).

or indirectly as the result of wiretapping in violation of 8605 F.C.A.20 However, the Supreme Court has declined to reverse convictions in state courts on the basis of such illegally obtained wiretap evidence, on the ground that §605 F.C.A. does not contain "a clear manifestation" of the intention of Congress to render inadmissible in state courts evidence obtained in violation of the statute.21 It is in an effort to circumvent this result that the situations discussed in the Pugach and O'Rourke decisions (discussed above) have arisen.

We believe that if Congress now enacts legislation authorizing wiretapping by state officials in compliance with specified conditions, it should clearly provide that wiretap evidence (and the fruits thereof) obtained otherwise than in compliance with the statute, shall be inadmissible in any trial or proceeding, whether state or federal. It cannot be doubted that the exclusionary rule is an important, if not indispensable, aid in effectuating the statutory purpose.22

The power of Congress to restrict all wiretapping in order to protect the integrity of interstate communication, now exercised in §605 F.C.A., derives from the Commerce clause (Art. 1, §8) of the Constitution. Under the "necessary and proper clause" of Article 1, §8, and the Supremacy clause of Article VI, measures to effectuate the granted power are valid and paramount, even though they subordinate state law and rules of practice.28 Perhaps the closest analogy to a federal statute barring admission of evidence in state courts is to be found in the immunity statutes.

In Adams v. Maryland, 347 U.S. 179, 183, the Court held that a federal statute prohibiting the use of testimony given by a con

20 Nardone v. US., 302 US. 379, 308 U.S. 338; Weiss v. U.S., 308 U.S. 321; Goldman v. U.S., 316 U.S. 129; Benanti v. U.S., 355 U.S. 96.

21 Schwartz v. Texas, 344 US. 199, 202–203. The Court stated (p. 203): “Since we do not believe that Congress intended to impose a rule of evidence on the state courts, we do not decide whether it has the power to do so."

22 See, for example, the data presented by Mr. Justice Murphy in Wolf v. Colorado, 338 U.S. 25, 44-47 (dissenting opinion).

28 See, e.g., Maryland v. Soper, 270 U.S. 9; Ohio v. Thomas, 173 U.S. 276, 283; Boske v. Comingore, 177 US. 459, 468. The situation is, of course, a fortiori where Congress has preempted the field; Garner v. Teamsters, 346 U.S. 485, Pennsylvania v. Nelson, 350 US. 497, San Diego Bldg. Trades v. Garmon, 359 U.S. 236.