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Even then, such evidence might properly be excluded in the court's discretion, on the ground that it would unduly distract and mislead the jury.

VI

ELECTRONIC EAVESDROPPING AND WIRE TAPPING The investigative measures discussed above bear rather directly on the person of the suspect. Electronic eavesdropping-especially through wire tapping-is a technique that ranges more widely. A survey of the cases reveals a frequent shifting of position by the courts with reference to such methods.

In Olmstead v. United States, 18 the Supreme Court held by a 5-4 majority that the tapping of telephones without a trespass on defendant's property did not involve a "search and seizure” and so did not fall within the fourth amendment. This decision is an important precedent for limiting the scope of the fourth amendment. Had the decision gone the opposite way, legislation to authorize any type of wire tapping would, in effect, have been permanently precluded. Even under a warrant, one cannot search for and seize mere "evidence," and in most instances, it would be difficult to deem telephone conversations either the "tools" or "fruit” of crime, 184

Relying on the subsequently enacted section 605 of the Communications Act, which forbids any person to "intercept and divulge” the contents of a telephone message without the consent of the sender, the Court later held that it was unlawful for federal investigators to tap and use in evidence a telephone conversation or information obtained from the wire tapping.135 Even intrastate calls were within this prohibition. 186

Then the tide turned again. It was held permissible to utilize a detectaphone which overheard everything said by a suspect, including what he said into his telephone.137 A defendant was denied standing to parently more willing than most jurisdictions to allow corroboration by a prior consistent statement.

277 U.S. 438 (1928).
Supra note 23.

Nardone v. United States, 302 U.S. 379 (1937), following re-trial, id., 308 US. 338 (1939).

Weiss v. United States, 308 U.S. 321 (1939). 15 Goldman v. United States, 316 U.S. 129 (1942). Cf. On Lee v. United States, 343 U.S. 747 (1952), where an informer used a hidden microphone while talking to the defendant.

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protest that investigators had obtained information through tapping someone else's wires. 138 A state court was ruled to be free to use wiretap evidence, even though such evidence had been obtained in violation of a federal statute. 139 In Irvine v. California! the evidence revealed that investigators had entered the accused's house and installed a microphone. Under the principle that a state court can determine whether to consider illegally-obtained evidence, the Supreme Court ruled that the evidence was properly admitted. Nor was a deprivation of "due process” deemed to be present, since here the injury was not to the defendant's person, as in the Rochin case, 141 but only to his privacy, because of the trespass and eavesdropping. Although it was explicitly proposed by two of the justices that there be federal prosecution of the investigators for violation of Irvine's constitutional rights, the other justices seemed unwilling to move so directly into the enforcement of protection against investigative excesses.

The Supreme Court, at its last term, handed down two more decisions on wire tapping. In one, it was ruled that for a police officer to listen in on a phone conversation with the consent of one of the participants did not constitute the "interception" proscribed by section 605.142 However, Benanti v. United States, 148 has cast a pall on the wire tappers. In that case, cross-exan.ination of state investigators who were testifying for the prosecution revealed that they had acquired some of their information from wire tapping. The Supreme Court ruled that even though the illegality was that of state rather than federal officials, these investigators should not be allowed to divulge to a jury information which they had obtained in this matter. Although refusing to rule whether violation of section 605 requires both an interception and

Goldstein v. United States, 316 U.S. 114 (1942).

Schwartz v. Texas, 344 U.S. 199 (1952). Naturally, the Court in this case placed great emphasis on Wolf v. Colorado, 338 U.S. 25 (1949), where state courts were held to be free to use evidence obtained by illegal search and seizure. To avoid the effect of the Schwartz case, one defendant in a state court sought a federal court injunction, to be based on the Communications Act, which would enjoin the admission of wire-tap evidence and would require destruction of the recordings of his conversations. However, the requested relief was considered by the federal courts to involve undue interference with state criminal procedure. Voci v. Farkas, 144 F. Supp. 103 (E.D.Pa. 1956); Voci v. Storb, 235 F.2d 48 (3d Cir. 1956). If wiretapping by a federal officer had been involved, relief would probably have been forthcoming. Rea v. L'nited States, 350 U.S. 214 (1956) (illegal search and seizure).

347 U.S. 128 (1954).
3+2 U.S. 165 (1952).
Rathbun v. United States, 355 U.S. 107 (1957).
355 U.S. 96 (1957).

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divulgence of a telephone conversation, the Court held that the testimony by the state investigators would certainly constitute a violation of section 605. To permit the United States to prosecute a defendant with testimony the giving of which constituted a federal crime would, in the Supreme Court's eyes, not give sufficient weight to statutory policy.

Another facet of the case is of interest. The investigators were wire tapping under the authority of a New York state court order entered pursuant to that state's constitution and statutes. However, in light of its conclusion that section 60s had pre-empted the field as to interception of telephonic communications, the Supreme Court concluded that New York had no power to authorize wire tapping.

An interesting question now concerns the extent to which the laws of New York and of other states with wire-tap legislation will permit the use of wire-tap evidence in the courts of those states.144 Will those courts continue to grant their police the authority to wire tap in the face of the Court's determination that state legislation providing for wire tapping invades an area preempted by the Federal Government through the Communications Act? In light of the unpopularity of the whole pre-emption doctrine in some states, this course of action is by no means

impossible.146

In those states where, as at common law, the manner in which evidence is obtained does not affect its legality, it may be difficult to test this point, since the order for wire tapping is obtained ex parte in the first instance, and later, at any trial, it will be unnecessary to inquire into the legality of such an order. Even states which by statute or by judicial decision have departed from the common-law rule of admissibility as to the products of an illegal search and seizure!" might hold that this departure was limited to searches and did not embrace wire tapping—which is not a “search and seizure."147 Of course, at some point, the Supreme Court might decide to intervene by overruling its

State legislation is summarized in Westin, The Wire-Tapping Problem, 32 COLUM. L. Rev. 165, 181 (1952). Westin also discusses the New York experience under its legislation which authorizes wire tapping under court order. Id, at 192.

"" The pre-emption doctrine, as reflected in cases such as Pennsylvania v. Nelson, 350 U.S. 497 (1956), and Amalgamated Association v. Wisconsin Employment Relations Board, 340 U.S. 383 (1951), was recently criticized severely by the Copference of Chief Justices at their August, 1958 meeting. See U.S. News and World Report, Oct. 3, 1958, pp. 92-102.

Supra note 10.
See Olmstead v. United States, 277 U.S. 438 (1928).

holding that the Communications Act does not preclude state court use of wire-tap evidence, 148

The person whose wires have been tapped by investigators or others may seek to have federal criminal prosecution instituted or to bring a civil suit for invasion of privacy. Federal prosecutions for wire tapping have not been numerous in the past,14 and there is no guarantee of a great willingness to undertake them in the future. As for civil actions, not every jurisdiction even recognizes a right of privacy; and in any event, a substantial recovery might be hard to come by if the investigator had acted under a court order-even if that order may have been a nullity by reason of the Communications Act.160

The possibility of criminal prosecution may lead investigators to plead self-incrimination when cross-examined as witnesses about the use of wire-tap apparatus. In a federal court, this privilege would merit recognition. On the other hand, in the court of a state which had no penal law against wire tapping, the person pleading self-incrimination would face the argument that a state court should only recognize selfincrimination with reference to possible state penalties, not federal

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Congress has recently been urged to overturn the principle of several Supreme Court decisions that certain state statutes have been superseded by federal “pre-emptive” legislation. To limit further Court holdings

Schwartz v. Texas, 344 U.S. 199 (1952).

One writer states that there has been only one reported case involving wiretapping. Donnelly, Comments and Caveats on the Wire Tapping Controversy, 63 YALE L.J. 799, 802, n. 20 (1954). See also Westin, supra note 144, at 169. The Teamsters' Union leader, James Hoffa, recently emerged unscathed from a wiretapping trial. On the other hand, the writer is aware of a case tried in the Federal District Court for the Middle District of North Carolina, at its March 1957 term, which did result in a conviction and fine after a nolo contendere plea... United States v. Atkins and Stallings. This case was all the more unusual since one of the defendants was a County Chairman of the Democratic Party. Some might suspect that in this case and in the Hoffa prosecution there were at least some political overtones.

15 Certainly, the order, as evidence of good faith, would help negate a claim for punitive damages. One question that might be considered is whether a federal court has civil jurisdiction to entertain an action for damages based on an alleged violation of $ 60s of the Communications Act, 48 Stat. 1103 (1934), 47 U.S.C. 605 (1952). If there is such a right, what is the measure of damages? If a civil suit is predicated on an alleged violation of privacy in a jurisdiction which recognizes the right of privacy, the measure of damage is still a problem, especially where there is no proof that the tapped conversations were divulged by the investigator. Incidentally, with the new improved techniques for wiretapping with induction coil units, it would be unusual for the wiretapper to be guilty of trespass in the traditional sense.

Sec 8 WIGMORE, op. cit. supra note 11, § 2258.

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along these lines, it has been proposed that Congress declare that its enactments should not be interpreted as pre-empting a field of legislation unless there is evinced a clear intent so to do. Should some such rule of construction be promulgated, the future of state-authorized wire tapping would brighten considerably, and the holding of the Benanti case as to the effect of the New York authorization of wire tapping would be imperiled.

Congress has also heard many proposals for the amendment of the Communications Act to allow wire tapping by federal law agents in certain types of cases and under certain conditions; 162 but the chances of passage of any such proposals do not seem good at the present time. Should the pre-emption legislation be enacted and restore to the states the power to authorize wire tapping and no amendment be made to the Communications Act, the ironic result will be that federal law agents, confronted with some of the most dangerous offenses, such as espionage will have no right to tap wires under any conditions, while a local policeman may be in a position to wire tap in investigating a relatively innocuous offense. To heighten the irony, the likelihood that federal agents would misuse the products of wire tapping for private purposes, such as blackmail, seems substantially less than that police officials at other governmental echelons might do so."

Of course, in determining the methods that should be available to the federal investigator as compared with other law enforcement agents, one cannot overlook the risk of totalitarianism that always lurks in the background where there is a “national” police force.154 In connection with some investigative techniques, this risk is really insignificant. For example, if federal investigators are allowed to make compulsory bloodtests of suspects, there is no increased likelihood that this will speed the coming of a dictatorship in the United States. However, with wire tapping and the indiscretions and secrets it discloses—sometimes of considerable political import—there can be little doubt of the potentiality

See, c.8., Rogers, The Case for Wire Tapping, 63 YALE L.J. 792 (1954); Westin, supra note 144, at 202.

Certainly, it is the writer's impression that federal investigative agencies have been less subject to scandal in the past than other investigative groups. Of course, state and local standards of criminal investigation seem to be continually improving.

Frequently, it is not realized that England has no "national police forces and that even the fabled Scotland Yard has jurisdiction only in the London area, unless requested for assistance by other English police forces. See, c.8., HARRISON, op. cit. supra note si.

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