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B. The Safeguards Surrounding Court Order

The gravamen of Dash's charge, if one may call it that, is that virtually no safeguard against arbitrary and indiscriminate wiretapping is provided by the requirement of a court order to tap. 18

This is emphatically not so. As a practical matter, we do not make applications for wiretaps unless we feel we are legally entitled to do so." If we sign an affidavit in which we say, under oath, that we have reason to believe that we can get evidence of crime and we set forth sufficient facts to justify that conclusion and, further, subject ourselves to examination by the court to justify the reasonableness of the order, then and only then, can we procure an order to tap a wire. 20

"All that is required,” Dash tells us, “is a statement that there is reasonable ground to believe that evidence of crime may be obtained by interception of conversations over a specified telephone." 21 Curiously, however, the "example of a New York wiretap application" ? relied on by Dash to support his assertion itself refutes this very charge; the application, an elaborate one which consumes almost two full printed pages, sets forth numerous detailed facts constituting the basis for the belief that evidence of crime may be obtained by a tap.23 Not so long ago, Dash himself vigorously defended the protections of a court order. In an article which he published in conjunction with Mr. Richardson Dilworth, now mayor of Philadelphia, at a time when Dilworth was district attorney and Dash his assistant, he said:

[It is said] that any restrictions placed on wire tapping, such as requiring that a warrant be issued by a judge, will not be enforced and that judges will rubber stamp police requests. This is a shocking argument, for it applies equally well to the warrant provisions for search and seizure, for arrests and for every other type of law enforcement activity requiring

18. See Dass 44-47, 67. Assuming some law enforcement tapping is to be legal, a collateral problem concerns who should have power to authorize tapping in the particular situation. Some prominent law enforcers have advocated dispensing with the court order and vesting full power in the Attorney General. See Brownell

, Public Security and Wire Tapping, 39 CORNELL L. Q. 195, 209-11 (1954); Rogers, The Case for Wire Tapping, 63 YALE L.J. 792, 797-98 (1954). However, the court order system has worked to our satisfaction in New York.

19. For example, if one squints hard enough at the fine print in the appendix to Dash's discussion of the New York situation, Dash 117, he discovers that in Brooklyn, which has a population of some three millions, from 1951 through 1954 there was an annual average of only 53% court orders, and the correlation between ultimate convictions and orders was eighty per cent. In light of this record, it is difficult to see how anyone can seriously maintain we are just a bunch of curious fellows who like to pry into other people's lives.

20. See N.Y. CODE CRIM. PROC. $ 813-a.
21. DASH 47.
22. Ibid.
23. Id, at 48 49.

judicial supervision. The argument in effect says that judges will not do their duty. If that is true, we have something much more serious to worry about than wire tapping. In dealing with problems of this sort, we must assume that judges and law enforcement officers will obey the law. If they will not, then any legislation outlawing wire tapping will not be effective, since it will be these same judges and the same law enforcement officers who will interpret and apply the law. The remedy for individual abuse is criminal prosecution, impeachment and action at the polls, and not stran

gulation of judicial and prosecution functions.24 Whom should we believe—Dash, the prosecutor, or Dash, the exprosecutor? Probably we would be safest in relying on somebody else altogether. The genuineness of the safeguard of the court order has been vouched for by a respected lawmaker who has long been a close student of the wiretapping problem — Senator Kenneth B. Keating. While testifying before a subcommittee of the House Committee on the Judiciary and recommending federal legislation including a court order requirement similar to New York's, he said:

(The requirement of a court order) has worked very well ... [in New York). Before any of our law-enforcement officers can put a tap on a telephone, they have to apply to one of our judges and show him why the tap is necessary and what they hope to discover by it. In this way, the public is protected against mere spying and “fishing expeditions." 26

In a moment of rare concession, Dash does note District Attorney Frank Hogan's denial that he has ever engaged in “political wiretapping”20 and the joint denial of Hogan and myself that applications for wiretap orders are perfunctorily heard by judges of the court of general sessions. ?? But Dash devotes much more time and attention to the assertions of former Assistant District Attorney William Keating: The latter charges that there is widespread misuse of court orders.28 For example, he claims that by means of a "fraudulent” application Hogan installed a tap on the premises of Carmine De Sapio under the authorization of a court order “solely for political purposes.” 29

Another alleged wiretapping abuse proclaimed by Dasho is that of “exploratory tapping,” that is, taking a sample of the conversations which can be picked up on a particular phone prior to getting a court order to tap it. As I told the Senate Subcommittee on Constitutional Rights,31 I can only say that this practice does not occur in my office. I am not going to say what the police do because I have not checked into that, but in my office we do not know in advance whether a wiretap is going to be profitable or not. We seek a court order only when we have sufficient independent evidence on which we can say that we have reasonable grounds to believe that we will get evidence of crime.32

24. Dilworth & Dash, A Wire Tap Proposal, 59 Dick. L. Rev. 195, 197 (1955). To the same effect is Dash, Wire-Tapping: A Realistic Appraisal, 18 THE SHINGLE 37, 39 (1955).

25. 1953 Hearings ser. 7, at 5.
26. Dash 45.
27. Id. at 47.
28. Id. at 46-47.
29. Id, at 46.
30. Id. at 66.
31. 1959 Heurings pt. 3, at 542.

I guess that if one looks long enough and hard enough for "sensational stuff" one can always find some. Here, as in many places throughout the book, Dash is much stronger on innuendo than he is on the facts. To pit William Keating-a disgruntled former assistant in Hogan's office who was recently convicted of contempt of court - against his old boss, an outstanding tested prosecutor — is hardly worthy of comment. C. Police Corruption

Exemplary of the confidential sources of "factual” information expounded in The Eavesdroppers is the “former plainclothesman” who is Dash's “authority” on wiretapping activities in New York between 1947 and 1951. Among his revelations was the following:

A. I'm being very candid with you if I'm a plainclothesman and I'm making $80 a week, and I go in on a pair and I come up on a hot pair

... and I went in on it on my own — well, that could be worth anywhere from $500 to $1000 to me personally. Q. You mean to keep them in business? À. No, just leave them in business. Just walk away from it. Q. Would that be the going rate on that? A. Oh yes, oh, definitely, $500 up.38

A. [I]f you grab a bookie's worksheet and he wants to — and you're going to court that afternoon with it - which is also standard practice - and he wants his worksheet back, you charge him for his worksheet according to the amount of play he has on his worksheet. If he doesn't come across, as the saying goes, you just pass the word in the neighborhood or just let everybody see him get pinched, and then everybody puts in a winner. ..

34

Q. How extensive is that practice? À. Oh, let me say that any man who is susceptible and needs an extra dollar will do it. Q. And would that be true of most plainclothesmen? A. I don't like to say this because I like being a policeman, but I think it's true of almost every cop. I don't say all.35

32. Because we never know when we will get "quack” complaints, in my office we have a strict policy — and I am sure it applies to other district attorneys, too - that we will not apply for a court order to tap merely on the basis of an anonymous letter. We always investigate the matter ourselves first to obtain substantial evidence upon which to base a request for a court order.

33. DASH 59.
34. Id. at 59-60.
35. Id. at 60.

A. The average policeman doesn't look on bookie or policy money as dirty money.36

Well, I suppose this is the kind of sensationalism that makes a book “sell.” There seems to be no other explanation for Dash's de voting almost six full pages of his book to extracts from an interview with this fellow.

Of course, there are some crooked cops in every police depart- . ment. But even some judges have been known to take a bribe. I can assure you that every New York policeman knows that if this office learns of an unlawful tap, he will be prosecuted to the fullest. If the "former plainclothesman,” whoever he is, really asserted that practically every other plainclothesman would do the same, he is just a crook hoping he has plenty of company.

D. The Myths about Gambling

When Dash reveals that much wiretapping is done merely to combat gambling he acts as if he has made an exposé of major pro portions. For example he says:

It was also leamed at this period (1948) that New York police used wiretapping principally to make gambling arrests. They did not hesitate to employ this means of investigation for very minor offenses.37

There is a constant effort on the part of law-enforcement officers to play down gambling wiretapping and to emphasize that wiretapping is principally used in investigations of major crimes. But the wiretapping done by plainclothesmen is still in large part aimed at bookmakers' operations and prostitution. As a matter of fact, more wiretapping by police is done in gambling cases than in any other kind of case.88

But I am not the least defensive about the comparatively widespread use of law enforcement tapping to combat gambling. Rather, I am surprised that Dash adheres to the popular line that treats gambling so lightly." As a former district attorney, he should know better --- much better.

I know of no more convincing way to dispel the popular notions about gambling and to reveal some of its many close links with the “hard core” underworld than to quote at length from the recent

38. Id. at 62. 37. Id. at 33. 38. Id, at 65-86. 39. At one time Dash's position was apparently exactly contrary, for he said: "The

· proposal ... [to make inadmissible in evidence conversation obtained by wire tapping) is an unreasonable interference with law enforcement, especially in the area of major crimes and rackets." Dash, Wire-Tapping: A Realistic Appraisal, 18 THE SHINGLE 37, 41 (1955). (Emphasis added.)

findings of a rackets grand jury from my county which studied the subject exhaustively:

Gambling is the very heartbeat of organized crime both on a local and national scale.

The crimes encompassed by the term "gambling” in this presentment are sinister. The public has been misled as to the true nature of gambling and its serious impact on our body politic, because it is confused with practices which are indulged in at one time or another by a large proortion of the respectable citizens of the community. Almost everyone, at one time or another has gambled, whether in a private game of cards, at a church bingo, at the pari-mutuel machines at a racetrack or in some other form. The result has been a public acceptance of gambling as if it were a part of human nature and, therefore, an unimportant offense. This attitude is, in large measure, responsible for the public apathy towards the enforcement of the laws relating to gambling. The public must begin to understand the crucial difference between criminals engaged in gambling and the indulgence of decent citizens in various types of betting.

From the evidence presented to us, we state categorically that gambling crimes are linked on innumerable occasions with the most obnoxious criminal enterprises known to man. The public may think of the bookmaker in the corner candy store as an innocent betting commissioner operating a legitimate business. We have heard the evidence. We know otherwise. Actually, if you scratch the professional operator of gambling ventures you find the narcotics peddler, the loan shark, the dice game operator, the white slaver, the murderer. 40

These observations were underscored by the grand jury's plea that they should be proclaimed throughout the breadth and length of our ... nation. All of our other findings and recommendations flow from a proper understanding of this axiom of modern racketeer

40. Presentment of the Second Additional March 1958 Grand Jury of the County of Kings on Effective Means of Combatting Violations of Laws Relating to Gambling and Police Corruption 2–3 (hereinafter cited as Presentment). The grand jury went on to state concrete examples, including the following:

Brooklyn has been the scene of a number of unsolved gangland homicides over the past few years. Almost every one of those killings is involved with gambling ventures in one form or another. In one case where seven leading narcotics dealers were convicted . . . , six were actively engaged in gambling activities, including bookmaking and policy, which they used as the source of funds for their deadly trade in narcotics. ... [M]any of these gambling figures have gone into labor rackets and coin operated machine rackets as well. The very case which was the initial subject of our investigation . . . is an excellent example of the interrelationship of gambling and other criminal ventures. Closely allied with the bookmakers and operating out of the same tavern was a group of loan sharks who financed the bookmakers. These loan sharks also operated dice games. Literally thousands of sets of crooked dice were confiscated in raids upon their homes. Guns were found in or about the dwellings of these loan sharks. Legally intercepted telephone conversations at the same tavern during the same period showed references to a holdup of a payroll truck ... and to a burglary of many thousands of dollars worth of transistor radios. . . . Evidence showed that those same bookmakers, through the loan sharks, were dealing with the notorious

Robillatto, also known as "Johnny Roberts”.
Id. at 3 4. The Presentment is reprinted in 1959 Hearings pt. 3, at 551-57.

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