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Our opponents say that even with judicial supervision of wiretapping, the rights of individuals can be violated and I think it is so to a certain degree. They give, for example, the search warrant. They say a search warrant can be limited. They say the place to be searched can be particularly described and that what can be looked for can be limited but when you give a wiretap order and when a wire is tapped, that anyone who speaks on that telephone, whether it be the suspect or not, all conversation can be heard and can be taken down and certainly there is a degree of truth to that position.
I have listened on tapped telephones myself with my assistants and the police. We have listened to the idle ramblings of a hoodlum's wife or his moll or listened to the inane talk of a young daughter of a gangster we are after and it is the most boring, disinteresting thing I have ever listened to in my life. It goes in one ear and out the other. But the next hour or the next day we have on the same wiretap listened to the suspect tell of plans for a major crime of violence.
Certainly, there might come to one of the innocent persons involved some kind of undefinable harm. These people who oppose this don't say it has happened. There have been no complaints in the State of New York. They don't say it is happening now, but it is a remote possibility that it might happen in the future.
If we take any aspect of the criminal law, there exists the possibility that some injury may come to an innocent person. Take the very simple thing of the law of arrest. In New York State, and I presume it is true in other jurisdictions, a police officer may arrest a person walking down the street who may be completely innocent, provided a felony has, in fact, taken place and provided further that the police officer has reasonable grounds for believing this person committed the crime and he arrests him.
Actually, the number of wrong arrests are few and far between. But no intelligent person claims we have to abolish the right of arrest because it is possible the wrong person might be arrested.
Now we have the question of the search warrant itself. Here is our proudest boast in Anglo-Saxon law, that a man's home is his castle, yet, the door can be kicked down and the home searched from attic to cellar providing the arresting officer, the searching officer, has filed an affidavit that he has reasonable grounds for believing that the fruits of crime exist in those premises.
It is the same of wiretapping in New York State where the procuring officer must be a responsible officer in the police department and certifies under oath that he has reasonable grounds for believing that a crime is about to take place and an order for wiretap is issued.
I am not too impressed by the fact that there is a possibility that an innocent person may be hurt. That exists in every facet of our criminal procedures. We must weigh it all in the light of the common good.
I have about concluded what I have to say with regard to the general aspects of wiretapping, particularly as it applies to the State of New York.
I will say this much again, we have an intolerable situation in which we need your assistance badly. We are at the point now where we will accept any legislation that is passed that will relieve the situation as it now exists.
We feel very strongly that S. 1086 is the bill that most directly goes to the point. It is the one we think is least controversial. We feel rather strongly that the crimes to be covered by any bill, should be left to the individual States to describe and we fully and wholeheartedly support S. 1086.
Thank you very much, Mr. Chairman.
Senator ERVIN. The committee is very grateful to you for taking the time and trouble to give us the benefit
of your experience in this field and I feel that I should say I share your opinion that this matter, as far as enforcement is concerned, should be referred to the various States because they each have an entirely different situation.
Mr. O'CONNOR. I think so.
Senator KEATING. And since this is in the bill I am happy to find the chairman and I are in accord on this question.
Senator ERVIN. Does counsel have any questions?
Mr. CREECH. Mr. O'Connor, I would like to ask in the event you are not able to use wiretapping facilities, would you be able to adduce any other evidence sufficient for conviction in many of these cases?
Mr. O'CONNOR. We definitely could not.
Now I have heard the statement made, let us work harder and longer. To me it doesn't make sense. There are certain crimes that without wiretapping we will not be able to discover any evidence sufficient to carry on our investigation.
Mr. CREECH. Sir, would you favor then the circumscribing of any wiretapping legislation to those certain crimes ?
Mr. O'CONNOR. We would feel that it should be left to the States. We would have no objection, I think, broadly and generally if it were limited to felonies. That is a reasonable thing.
Senator KEATING. I am a little bit surprised to hear that because you are more experienced than I am that these gambling and prostitution charges that I understand were the subject of a good many wiretap orders are not felonies.
Mr. O'CONNOR. Generally, they are not.
Senator KEATING. I had the impression from other witnesses that evidence of more serious crimes frequently have been found in a tap on a gambler's or prostitute's phone on some other minor crime.
Mr. O'CONNOR. I think that is definitely so and that is why I say we would prefer not to have any restriction placed there, but if it is necessary to get legislation through to limit wiretapping to felonies, we would accept it.
Senator KEATING. I think at least the two of us that are listening to you are quite impressed with the merits of leaving it to the States completely. But I do want you to clarify that as much as possible.
I think Mr. Silver gave us the impression or I gained the impression from his testimony that he would be rather strenuously opposed to limiting this to any specific crimes or to just the felonies on the basis that evidence of serious crime has often been obtained when they were tapping on gambling and prostitution.
Maybe Kings County is the more crime ridden county.
Mr. O'CONNOR. Well, Senator, I think maybe I have created the wrong impression. I do not want to indicate any divergence of opinion with Ed Silver because we think alike. I am proceeding on the theory that a half a loaf is better than
On that basis, I would accept it but personally, we would prefer not to have that restriction placed on it.
Senator KEATING. Have you, in your experience, encountered cases. where you did get a wiretap order in gambling or prostitution cases and found evidence of more serious crime?
Mr. O'CONNOR. Yes, indeed, and particularly in gambling.
Senator KEATING. In other words, the murder boys and racketeer boys often had their principal activity in maybe gambling but they may be engaged in more serious offenses.
Mr. O'CONNOR. Very definitely. Mr. CREECH. Mr. O'Connor, in your opinion, sir, what is the length of time necessary or desirable for maintaining a tap on any particular telephone?
Mr. O'CONNOR. It is awfully hard to say and I don't think that 'really it is wise to limit it at all.
Now I see here that you have 90 days, 60 days and 30 days. Certainly, anything less than 60 days I think is impractical. There are investigations that go on for months, and I think so much of this has to be left to the good faith and honesty and integrity of the officials involved and the court that supervises the order. I don't think any judge in any court is going to continually sign orders over a long period of time unless upon each application for renewal there are shown facts to indicate the need for it.
On the contrary, if we are on the verge of something big after 60 or 90 days—to then say you can tap no longer is not practicable. It is a matter impossible to describe accurately and definitely. It must be left to the discretion of the judge who signs the order.
Mr. CREECH. I wonder if you would comment on your experience with regard to prosecutions for illegal wiretapping.
Mr. O'CONNOR. Well, in the city of New York, and I am talking now from memory and it is indeed fallible and getting more fallible as the years go on, I don't know that there have been more than two or three complaints in the entire city of New York concerning illegal wiretapping. There have been none in my county at all.
Senator KEATING. Either by public officials or anyone else?
With all due respect to those who make these accusations, it is too involved a thing. You must take into account someone in the telephone company, and there are only limited employees in the telephone company that can do it.
Now we had the one case in New York County where a union had done some wiretapping in a competitor's meetinghall, the Transit Authority I believe. It doesn't happen nearly as frequently as indicated. We have had no complaints in the county of Queens.
Mr. CREECH. Mr. Silver told us yesterday there may be some policemen that would indulge in illegal wiretapping but he preferred to believe it was not widespread and you took great exception to Mr. Dash's figures.
Now he told us he only applied for 55 wiretaps.
Mr. O'CONNOR. We have never had in the 6 years I have been district attorney more than 20 or 22 a year.
Mr. CREECH. And do you have any reason to believe that there are some policemen who wiretap without authorization ?
Mr. O'CONNOR. I am not in any position to say there are none. There are probably some, but I think it is extremely limited again because of the technical difficulties of doing it and in the light of our experience we have never had a complaint.
It would seem to me if it was widespread, certainly an irate citizen would rise up upon occasion and throw in a complaint to the district attorney's office.
Mr. ČREECH. How many times have you been denied permission to wiretap that you have requested an order!
Mr. O'CONNOR. I don't think we have ever been denied it. Our papers have been turned down on the grounds that we haven't made a proper showing and we have had to go back and place into the papers
facts which would justify a wiretap. I have turned down two or three in the past year where my assistants have come to me and requested approval to get an order. I turned down one the other day.
Mr. CREECH. These were not turned down by the court?
Mr. O'CONNOR. No, I refused to permit our assistants to go ahead with it.
Mr. CREECH. I realize that you made it very clear you feel this type of law is desirable, but in the event there were a broader law enacted in your opinion which, if any of the Federal agencies should be allowed to intercept communications?
Mr. O'CONNOR. I haven't given it much thought, frankly. I have been concerned primarily with the State level. I don't know that I am prepared to answer.
Mr.CREECH. Mr. Waters has some questions to ask.
Mr. WATERS. Mr. O'Connor, are any records kept of the orders which are issued allowing your staff to make a telephone tap?
Mr. O'CONNOR. Yes, we keep records.
Mr. O'CONNOR. They are only available to the chief of the investigation bureau and myself.
Mr. WATERS. Do those records retain the transcription and date of conversation?
Mr. O'CONNOR. Yes, they do.
Mr. WATERS. Do the records reflect, whether any telephone conversations other than those authorized might have been inadvertently overheard?
Mr. O'CONNOR. Yes; the entire conversation would be there, not only included in these suspect but anybody else on the phone when the tap was being made.
Mr. "WATERS. Thank you very much.
Senator Ervin. The committee is deeply grateful to you, Mr. O'Connor, for giving us the benefit of your experience and views on this subject.
Mr. O'CONNOR. Thank you, Mr. Chairman.
Mr. CREECH. Our next witness is Mr. Goodman A. Sarachan, chairman, Commission of Investigation, New York, N.Y.
Senator KEATING. Mr. Chairman, this is another distinguished New Yorker and a friend of mine of many years' standing. He and I were classmates in college together; that is, he worked for 3 years and he graduated in 3 years and he earned a Phi Beta Kappa in 3 years and he was one of the top students in college and he has continued his knowledgeable career ever since as a practicing lawyer in Rochester, N.Y. and now is the chairman of the New York State Crime Commission.
STATEMENT OF GOODMAN A. SARACHAN, CHAIRMAN, COMMISSION
OF INVESTIGATION, NEW YORK, N.Y. Mr. SARACHAN. Mr. Chairman, it is very late in the afternoon and you have been patient with witnesses and I am going to stick as closely to the prepared statement as I can.
Preliminarily, I want to say it is of particular gratification to me on the first occasion when I appear before a congressional committee to have present a very prominent member of the committee, my old friend, classmate, and fellow resident, Senator Kenneth Keating.
Even though we have been on opposite sides of the political fence, it has never interfered with our friendship and I think I speak for all of the citizens of Rochester when I say that we consider Senator Keating one of the outstanding legislators in the entire Congress of the United States.
Senator Ervin. I would say that I would corroborate your statement there and say that he is a most useful and active member of this subcommittee and active member in many other legislative matters.
Senator KEATING. I am glad I gave up an appointment elsewhere to hear this.
Mr. SARACHAN. I might also state preliminarily to explain how & Democratic appointee happens to be a so-called crime commissioner in the State in which both the Governor and the legislature are Republican; that we are the only commission in the State, I think, in the history of the State, that has equal representation of both political parties and while both Governor Harriman, who appointed me, and Governor Rockefeller, our present Governor, wondered whether an even numbered committee, equally divided between parties could function my fellow commissioners and I feel that that very fact has taken politics out of our operations completely.
Senator KEATING. Your chairmanship rotates, does it not?
On October 23, 1959, the Commission of Investigation of the State of New York, in collaboration with picked members of the New York State Police, conducted across the central part of New York State what was probably the largest scale raid on gamblers and other law violators in the history of this country. The raids were conducted simultaneously at 3 p.m. of that Friday, in 30 communities covering 19 counties from the eastern to the western end of the State, across the central part of the State. The raids resulted in the arrest not only of bookmakers, but of a substantial number of higher-ups. A huge quantity of equipment and large sums of cash were also seized. Much of the evidence, particularly in relation to the higher-ups, was obtained by the tapping