the statute in the present New York legislation, section 813B of the criminal code of procedure makes it a felony for a law enforcement agency to tap a wire without a court order and it was written and promulgated by the district attorneys association in my State. In fact, I had something to do with it myself and so as far as illegal wiretapping is concerned, there is nobody more arduous than we are to make that a serious crime. Senator CARROLL. Incidentally, I have never read Mr. Dash's book. I have heard his testimony. Mr. SILVER. I am not recommending the book to you, but I had to read it to know what the book said. He makes the observation for example, that the district attorneys are loath to prosecute for unlawful wiretapping because it would indicate to the public that something is being done that is wrong with regard to wiretapping and give the whole thing a bad flavor. Nothing could be further from the truth. The difficulty is he does not understand, though he should as a former prosecutor, that when a burglary is committed or a homicide is committed, even if the perpetrator is not found you know that a burglary was committed. You know that a homicide was committed. You have the corpus delicti. But if somebody taps a wire illegally, he pulls off his equipment. There is no evidence left to show that there has been such a crime. So to begin with we very rarely get the information that such a crime was committed. For example, we have advocated that the telephone company should be compelled by statute to advise the district attorney whenever they find a tap on a wire. Now we have been told, and I don't know how true it is, that telephone companies, even if they find a tap, will take it off and tell the subscriber that "your wire is clear" because they don't want to give the impression that perhaps the telephone isn't quite as private as it might be. Now I say telephone companies should be compelled to advise the district attorneys when and if they find a tap. Then perhaps there would be more prosecutions. The lack of prosecutions does not come about because of any lack of desire on the part of the prosecutor to do so. Senator CARROLL. I didn't mean to draw you away from your statement, but wanted to emphasize this question of selectivity and I will discuss that later on. Mr. SILVER. Yes, yes. Senator CARROLL. I am also informed that Mr. Dash will appear before us today and we then will have a chance to hear his testimony. Senator KEATING. Mr. Chairman, on the point you are making, can I ask one question before Mr. Silver gets away from it? Senator CARROLL. Yes. Senator KEATING. Reference is made by Senator Carroll to the fact that a court order may be obtained no matter what the crime is, whether it is a serious felony or a misdemeanor. Is there any limitation, Mr. Silver, as to the type of crime for which search warrants may be obtained in New York State? Mr. SILVER. No. I can get a search warrant for any crime. Senator KEATING. So that the rule as regards a court order with reference to wiretapping is the same as the rule with reference to search warrants in that respect. Mr. SILVER. That is correct, and one other thing should be said that the word "misdemeanor" is not a word of art in the law. There are some States in which crimes are called misdemeanors and in other States are considered very serious. For example, until last year in our own State conspiracy to commit murder was a misdemeanor punishable like any other misdemeanor, while in the State of California it was punishable by death. We have corrected that with regard to murder, but there are still many conspiracies to commit serious crimes that are still misdemeanors in New York State that are considered very serious in other States. The words "misdemeanor" or the amount of "punishment" are not terms of art in the law. In one place they can punish a crime by 20 years and in others by 1 year, depending on how the particular States regard the crime with which they are dealing. To use the word "misdemeanor" or "punishment" as a standard makes it difficult for various States because their standards are different. Senator KEATING. It seems to me that Congress might well recognize and probably should recognize different degrees of crimes so far as Federal police powers are concerned, but that it would not be appropriate under Federal-State relationships for Congress to recognize different degrees of crime or supervise the exercise of State police powers in a Federal statute. I think there is a real distinction there. Senator CARROLL. Mr. Silver, what I had in mind here is the report submitted by the Committee on Federal Legislation of the Association of the Bar of the City of New York for proposed Federal legislation to legalize the State's wiretapping. This is dated January 10, 1961. The report recognizes the need for some change in the Federal law but it points out some deficiencies in S. 3340. I assume that is the bill that Senator Keating introduced last session. Has there been any modification? Senator KEATING. No. Senator CARROLL. On page 8 the report groups the deficiencies of S. 3340 into four categories, as follows: 1. Lack of limitation in respect to the type of crime; 2. The lack of specification of requirement for obtaining court orders and maintaining records; 3. Lack of prohibition of use of evidence obtained in violation of the statute; 4. The lack of provision for Federal surveillance. I have very personal strong feelings about this as you know-when I was district attorney in Denver, I prosecuted one of the most significant eavesdropping cases in the country. This case was on eavesdropping and wiretapping. We had lawyers in this case who didn't tap wires, but ran their own wire and we prosecuted under the common law on eavesdropping. The lawyers found guilty were disbarred. The State supreme court upheld the conviction. Colorado takes a very dim view of wiretapping although my district attorney in Denver doesn't express himself. As I read this report I thought there was considerable merit in it. Later on, I am informed, Mr. Gasperini will testify concerning this. Mr. SILVER. Mr. Gasperini is the chairman of the Committee on Federal Legislation, Association of the Bar of the City of New York. I just want to say, Senator Carroll, that I have the report and also an analysis of the report and if you want to quiz me about it later, I will be very happy to answer any questions. Senator CARROLL. I would like to have your analysis and we can have copies of it later on. Mr. SILVER. It is not in a form to be submitted, I will endeavor to put it in proper form for submission to you. Senator CARROLL. I think without objection at this time we ought not to put it in the record, but ought to put it into the files, both the report of the committee and your analysis. Mr. SILVER. The analysis is not in shape, but I will submit it to the committee when I put it into proper form. Senator HRUSKA. I have a question or two of the witness at this point pertinent to the first full paragraph on page 2. Reference is made there to a showing under oath to the court. How is that showing made, Mr. Silver? Mr. SILVER. It is made in two ways. It is made by way of an affidavit of the district attorney. Also under the statute in addition to affidavits setting forth the facts, he must state under oath, based on his statements of facts that he has reasonable grounds to believe that he will get evidence of crime. He must also, under section 813A, submit to the judge any witnesses that the judge might want to examine to fortify the statement of the district attorney. If the judge is not then satisfied he will deny the request. I made copies of section 813A that I want to submit in evidence and if the Senator desires to take a look at the actual section I can show it to him. Senator HRUSKA. We can submit it in evidence. I wouldn't care to examine it now. I think it would be helpful if it were inserted in the record at this point. I also suggest that this would be a good place to have inserted in the record an affidavit which Mr. Silver would consider typical or representative of the type of affidavit used in such situations, together with a copy of an order which would be issued by the court in this type of case so that we may see the precise mechanical working of this procedure and not indulge in speculation which might distort the picture. Mr. SILVER. Rather than get one up, and it might look as though it were manufactured, I will get an order we actually submitted. Senator HRUSKA. That is precisely what I had in mind. Mr. SILVER. Except I will delete the telephone number we actually tapped of the individual. And I will be very happy to submit that to the committee. Senator ERVIN (presiding). That will be just fine; we will insert it in the record at the appropriate place. (The following memorandum and documents were subsequently received from Mr. Silver:) In accordance with the request of Senator Hruska I am herewith submitting an actual affidavit submitted by my office to a judge of the county court for an order to intercept two telephone conversations. It should be noted that the affidavit sets forth facts on which the court could make such an order; that the affidavit specifically mentions the telephones to be intercepted, by whom they are maintained, and where they are. Also, we indicate that no previous application has been made for this order. The order, as it will be noted, specifically sets forth the telephone numbers to be intercepted, where they are located, and whose telephones they are. That he is an Acting Lieutenant in the Police Department of the City of New York, and Commanding Officer of the ooth Detective Squad. That on 19, at 9:10 p.m. one was shot and killed in front of Street, in the Borough of Brooklyn, City of New York. That deponent's detective squad, together with others, have since been conducting an intensive investigation to apprehend the person or persons guilty of said homicide. That on 111) 11119 19----, the ship" was docked at Pier Brooklyn, New York, taking on cargo. Part of the cargo placed in a locker located in the Number hatch of the said vessel consisted of revolvers. During the loading of the revolvers were stolen. Each revolver was marked with a serial number. It has not been established that the murder weapon is one of the 00 revolvers stolen. Examination of the longshoremen engaged in the loading of the locker of Hatch Number o of the vessel, led to the thieves of the said revolvers, and investigation shows that oo of the revolvers were sold to by the thieves. The said at He is married to who resides at has been missing from his home Street, Brooklyn, New York, for the past two weeks. who is the daughter of Street, Brooklyn, New York. That a telephone instrument bearing number oo 0000 is maintained by at Street, Brooklyn, New York, and is maintained by Street, Brooklyn, New York. a telephone instrument bearing number at It is your deponent's belief that the said telephone instruments are being used to assist in remaining a fugitive, and by reason thereof there is reasonable grounds to believe that evidence of crime may be obtained if the Police Commissioner, or his duly authorized agents, be permitted to intercept telephone messsages being transmitted over said telephone instruments. WHEREFORE, deponent prays for an order permitting the Police Commissioner of the City of New York, or a duly authorized agent of the Police Department of the City of New York, to intercept any communications transmitted over the telephone instrument bearing numbers which instrument is located at Street, Brooklyn, New York, and listed in the records of the New York Telephone Company under the name of -- and permitting the Police Commissioner of the City of New York, or his duly authorized representatives, to cut, break, tap and make connections with any and all wires leading to and from said telephone instruments. Your deponent further requests that the said order be effective up to the 19____. No previous application has been made for the relief herein sought. COPY OF COURT ORDER COUNTY COURT: KINGS COUNTY In the Matter Intercepting Telephone Communications Being Transmitted Over and It appearing from the annexed affidavit of an Acting Lieutenant in the Police Department of the City of New York, and Commanding Officer of the 00th Detective Squad, verified 19, and he being now present before me, that there is reasonable ground to believe that evidence of the commission of the crime of Homicide, may be obtained by permitting the interception of the aforesaid telephone instruments, and it appearing that the ends of justice will be best served thereby, it is ORDERED, that the Police Commissioner of the City of New York and his duly authorized agents be, and they hereby are, authorized and empowered to intercept, listen to, overhear and make copies of any and all telephone communications made to and from or to be transmitted over the telephone instruments bearing the number located at Borough ----- of Brooklyn, City of New York, and listed in the records of the New York Telephone Company under the name of and the telephone instrument bearing the number located at Borough of Brooklyn, City of New York, and listed in the records of the New York Telephone Company under the name of further -; and it is ORDERED, that the Police Commissioner of the City of New York, and his duly authorized agents be, and they hereby are, authorized to cut, break, tap and make connections with any and all wires leading to and from the aforesaid telephone instruments bearing the numbers --___ and and to do all things necessary to permit the communications being transmitted over the aforesaid telephone instruments to be intercepted; and it is further ORDERED, that this order shall be effective up to the day of Senator CARROLL. After you get the order, what is the next step? Mr. SILVER. The next step we take is we go with the order to the telephone company and the telephone company will then point out to us the pairs so that we can get our plant. Senator CARROLL. What is that? Mr. SILVER. The telephone company points out the particular wire mentioned in the order so we can then set up our plant where we set up our apparatus to record or listen to the telephone conversation. Senator CARROLL. When you set up your plant, is that within the telephone company? Mr. SILVER. No, no. The plant might be in the cellar of a building, but not in any premises of the telephone company. Senator CARROLL. Where a line leads into a box perhaps? Senator CARROLL. I say wherever the line or cable leads into a box? Mr. SILVER. Not necessarily. It can be done a distance away from the box. One of the most difficult things in this is to get a plant that will not reveal what you are doing. For example, because if you want 85952 O-62-3 |