Five have statutes against eavesdropping by listening or recording devices: Illinois: Smith-Hurd Annotated Statutes, chapter 38, sections 206.1, 206.5. Nevada: Revised Statutes, section 200.650. Oregon: Revised Statutes, section 165.535-165.540. The attorney general of Pennsylvania referred to a recent law, Purdon's Statutes Annotated, title 18, section 4305.1, which forbids eavesdropping on the deliberations of a jury. The attorneys general of six States expressed the opinion that illegally obtained evidence is admissible in the courts of their States. Two others said evidence obtained in violation of constitutional right is inadmissible, but they believe evidence obtained by wiretapping would be received. Another said illegally obtained evidence is excluded and the admissibility of evidence obtained by wiretapping has not been determined. One attorney general cited a decision declaring wiretap evidence inadmissible, another a statute excluding all illegally obtained evidence in criminal cases. The States said to admit illegally obtained evidence are: Iowa: State v. Smith (247 Iowa 500, 73 N.W. 2d 189). New Hampshire: State v. Mara (96 N.H. 463). State v. Tracy (100 N.H. 267). North Dakota : State v. Fahn (53 N.D., 203, 205, Ń.W. 67). Ohio: State v. Lindway (131 Ohio Stat. 166 2 N.E. 2d 490) certiorari denied 209 U.S. 506; State v. Mapp (170 Ohio Stat. 427, 166 N.E. 2d 387). [NOTE. Since the date of the attorney general's reply State v. Mapp has been reversed by the U.S. Supreme Court, 29 Law Week 4798. There the defendant was convicted of possessing lewd books etc. which had been seized during an unlawful search of her home. The Supreme Court held that "Since the 4th amendment's right of privacy has been declared enforceable against the States through the due process clause of the 14th, it is enforceable against them by the same sanction of exclusion (of evidence obtained in violation of the 4th amendment) as is used against the Federal Government." This case throws no new light in the use of information obtained by wiretapping.] Utah: No case cited. Vermont: No case cited. States which exclude evidence obtained in violation of constitutional right, but which have admitted, or which the attorney general believes would admit, evidence obtained by wiretapping are: Washington: Evidence obtained in violation of constitutional right inadmissible: State v. Gibbons (118 Wash. 171, 203 p. 390); State v. Greco (52 Wash. 2d 265, 324 p. 1056); evidence obtained by eavesdropping admissible, State v. Slater (36 Wash. 2d 357, 218 p. 2d 329). Wisconsin: No case cited. The attorney general of Wyoming declared that the courts of his State exclude illegally obtained evidence, but that they have not ruled on the admissibility of evidence obtained by wiretapping. In Griffith v. State (111 So. 2d 282) cited by the attorney general of Florida, a State district court of appeal said, by way of dictum, that tapping of telephone wires and listening in by law-enforcement officers violates the State constitution and evidence thus obtained is inadmissible in criminal prosecutions in State courts. The attorney general of Texas cited a statute, Vernon's Annotated Code of Criminal Procedure of Texas, article 727a, which expressly forbids use in criminal cases of evidence obtained in violation of the Constitution on laws of the United States or of the State. Eight attorneys general favored Federal legislation to permit State officers to engage in wiretapping either generally or in stated circumstances. These were: Alaska, Nebraska, New Jersey, Rhode Island, South Dakota, Vermont, Wisconsin, and Wyoming. The attorney general of Mississippi took the position that wiretapping should be permitted "in proper cases and that reasonable and workable standards should be determined so that society would have some legal protection against the activities of criminals * "The attorney general of North Carolina asked the subcommittee "to confine the proposed laws to the administration of Federal matters and the activities of Federal officers and to leave the States free to permit their officers to intercept communications for admission in the courts of the State in criminal actions." The attorneys general of Iowa and Utah favored action by Congress to permit the use as evidence of information obtained by wiretapping, at least under certain conditions. Senator Keating's bill was endorsed by the attorney general of New Jersey; Senator Dodd's by the attorney general of Rhode Island. The attorneys general of Delaware, Missouri, and New Mexico oppose a Federal law to permit wiretapping. Those of Alabama and Oklahoma see no need for such legislation. The attorney general of California indicated a preference for a complete ban on wiretapping but suggested that if wiretapping is permitted under court order, the practice should be confined to licensed public utilities who would perform the tapping and report to the court. Florida's attorney general said he would not want to "set up by Federal law any further protection for gamblers in the communication of racetrack results." The attorneys general of Hawaii and Massachusetts referred to the proceedings of the National Association of Attorneys General for the expression of their views. The letters and statements forwarded to us are returned herewith. MARY LOUISE RAMSEY, Legislative Attorney. ALABAMA STATE OF ALABAMA, OFFICE OF THE ATTORNEY GENERAL, Montgomery, Ala., July 10, 1961. DEAR SENATOR ERVIN: In your letter to me under date of April 13, 1961, you requested a summary of State laws of Alabama concerning wiretapping and eavesdropping, and requested my opinion on the desirability of Federal legislation in this area. Your letter to me under date of June 20, 1961, makes a similar request. Alabama statutes which prohibit wiretapping or the interception of telephone and telegraph messages in Alabama are found in title 48, sections 414 and 416, Code of Alabama Recompiled 1958, and also in a part of title 14, section 84, subsection 18, Code of Alabama Recompiled 1958. These sections provide as follows: "§ 414. Tapping telegraph or telephone wires.-Every person who shall make a connection, by wire or otherwise, with any telegraph or telephone wires, not owned or leased by him, for the purpose of obtaining information or listening to the transmission of telegraphic dispatches or telephone messages to which he is not entitled; and any person who wrongfully obtains or attempts to obtain any knowledge of a telegraphic or telephone message by connivance with a clerk, operator, messenger or other employe of a telegraph or telephone company, or who being such clerk, operator, messenger, or other employe, wilfully divulges to anyone but the person for whom it was intended the contents or nature of a telegraphic or telephone message or dispatch, of which contents he or she may in any manner become possessed, shall be fined not more than five hundred dollars." "§ 416. Telephone or telegraph message not disclosed by the telephone or telegraph company. Any owners, manager, operator, or employe, of any telegraph or telephone lines operated in the State of Alabama who shall publish or communicate in any way whatsoever, or cause or allow to be communicated, the contents of any telegram or telephone message sent or received over said line or lines without the consent of either the sender or receiver of the same, shall be guilty of a misdemeanor, and, on conviction, shall be fined not less than twenty-five dollars, nor more than one hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than twelve months." "§ 84. Injuring public utilities.-Any person who shall willfully or maliciously remove, damage or destroy: "(18) Who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line; or * "Shall be guilty of a misdemeanor." Section 416, supra, has been held not to try to apply to the testimony of a telephone operator listening to a conversation when such is presented in a criminal case in Alabama courts. Hall v. State, 208 Ala. 199, 201, 94, So. 59; Morris v. State, 25 Ala. App. 156, 161, 142 So. 592. I am not aware of any present need in the State of Alabama for further Federal legislation. Yours very truly, MACDONALD GALLION, Attorney General. By BERNARD F. SYKES, Assistant Attorney General. ALASKA STATE OF ALASKA, DEPARTMENT OF LAW, Juneau, June 28, 1961. DEAR SENATOR ERVIN: This is in reply to your letter of June 20, 1961, in which you request a summary of Alaska's law on wiretapping and eavesdropping, and my opinion on the desirability of Federal legislation in this area. Alaska has no legislation or case law regarding eavesdropping. However, section 49-5-12, Alaska Compiled Laws Annotated, 1949, provides in part: “*** if any person shall tap any wire or line used for the transmission of such message, current, or power, or shall procure or advise the same to be done; the person so offending shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $500, imprisonment not to exceed 6 months, or by both such fine and imprisonment in the discretion of the court* * * ." This is our only legislation regarding wiretapping and as of this writing we have no case law interpreting it. In my opinion, Federal amendatory legislation in this area would be desirable. Although we have not had a great deal of contact with it, it seems to me that the provisions of section 605 of the Federal Communication Act are somewhat more stringent than they need to be. A desirable alternative to the blanket prohibition which now exists might be something similar to the New York approach, which provides for procurement of a warrant to wiretap on a showing of probable cause. The procedure is similar to obtaining a search warrant. An approach of this type would provide a tool with which law enforcement bodies could work effectively, and at the same time offer the public a measure of protection from "the police state." If I can be of further assistance, please do not hesitate to contact me. Very truly yours, RALPH E. MOODY, Attorney General. By GARY THURLOW, ARIZONA Deputy Attorney General. DEPARTMENT OF LAW, OFFICE OF THE ATTORNEY GENERAL, Phoenix, Ariz., May 10, 1961. DEAR MR. ERVIN: I respectfully submit the following information setting forth our present State laws and my general views in the field of wiretapping and eavesdropping. Sections 13-886, 13-887 and 13-888 of the Arizona Revised Statutes presently read as follows: "§13-886 Fraudulent reading or learning of contents of message in telegraph or telephone office; punishment "A person who, by means of any machine, instrument, or contrivance, or in any other manner, wilfully and fraudulently reads, or attempts to read, a message, or to learn the contents thereof, while the message is in a telegraph or telephone office, or is being received at or sent from such office, or who uses or attempts to use, or communicate to others any information so obtained, shall be punished by imprisonment in the State prison for not to exceed five years, by a fine not exceeding five thousand dollars, or both. "§13-887 Disclosure or alteration of telephone or telegraph message without authority; punishment “A person who wilfully discloses the contents of a telegraph or telephone message, or any part thereof addressed to another person, without permission of such person, unless directed to do so by the lawful order of a court or judge, or who willfully alters the purport, effect, or meaning thereof, shall be punished by imprisonment in the State prison for not to exceed five years, or by imprisonment in the county jail for not to exceed one year, or by a fine not exceeding five thousand dollars, or by both such fine and imprisonment. "8 13-888 Opening without authority or procuring false delivery of telephone or telegraph message; penalty "A person not connected with a telegraph or telephone office who, without authority or consent of the person to whom the sealed envelope is directed, wilfully opens such sealed envelope enclosing a telegraph or telephone message addressed to any other person, with the purpose of learning the contents of the message, or who fraudulently represents any other person, and thereby procures to be delivered to himself the message addressed to such other person, with the intent to use, destroy or detain the message from the person entitled to receive it is guilty of a misdemeanor." Arizona adopted the above-cited statutes shortly after the turn of the century from the laws of the State of California. Judging from the number of cases that have reached our Arizona Supreme Court, it appears that the above-quoted wiretapping laws have either not been fully enforced or the activities in the field of wiretapping within the State of Arizona during the past 50 years have been negligible. In 1918 our supreme court considered the case of State v. Behringer, 19 Arizona 502, 172 P. 2d 660. In this case the court, passing on the proper interpretation of section 13-886 as it then appeared in our Penal Code (Pen. Code 1913, section 692) stated, "It is not a telegraphic message until it is received at the telegraph office. Until it is delivered to the telegraph company, the duty of protecting it's contents devolves upon the sender and the same is true as to telephone messages." The construction and application of this statute, which prohibited wiretapping back in 1918, did not apply to the act of placing a dictaphone over the transom of a hotel room to overhear messages sent from a telephone transmitter in the room. The above-referred case followed very closely the general California rule of that time. Obviously the State of California has had a large number of cases coming before its courts interpreting their statutes in this field. In addition, their legislature has kept their laws as to wiretapping and eavesdropping in closer pace with modern technology that has taken place during the past 50 years. Our State has not moved forward on this subject. My present recommendations would be for the appropriate committee of the Arizona State Legislature to conduct a thorough examination of the various State laws in these fields with the object of revising our own statutes in light of modern techniques and other major changes that have occurred in this field since the enactment of our Arizona wiretapping laws. My personal specific recommendations would include the requirement of prohibiting eavesdropping upon juries. I further feel that our statutes, when enacted, should prohibit eavesdropping without the consent of all parties when one party is either in the custody of a law enforcement agency or other public agencies, and the conversation is with his attorney, religious adviser, or licensed physician. I appreciate the opportunity to express my views in this particular field and will remain deeply interested in the action that is taken by your subcommittee in resolving the many problems that this subject presents. Very truly yours, ROBERT W. PICKRELL, The Attorney General. C. LAWRENCE HUERTA, Assistant Attorney General. ARKANSAS STATE OF ARKANSAS, OFFICE OF THE ATTORNEY GENERAL, Little Rock, April 21, 1961. DEAR SENATOR ERVIN. This will acknowledge your letter requesting information concerning the laws of Arkansas covering (1) eavesdropping. Arkansas in 1955 passed a rather general act Law" (Ark. Stats. (1959 Supp.) Section 41-1426). as follows: wiretapping and (2) known as the "Peeping-Tom Section 2 of this act provides "A person who loiters on or about the premises of another for the purpose of spying upon, or invading the privacy of another in a clandestine, surreptitious, prying, or secretive manner, or with evil design, or for the purpose of committing an immoral act, or an act of voyeurism, in the manner or with the design as aforesaid, shall, upon conviction of the first offense, be fined in any sum not less than five hundred dollars ($500.00) nor more than one thousand dollars (1,000.00) or imprisioned in the county jail for a period not less than three (3) months nor more than six (6) months, or both, and on conviction of a subsequent offense, shall be imprisoned in the state penitentiary for a period not less than two (2) years nor more than five (5) years." In a Law Review article by Mr. Robert R. Wright (9 Ark. Law Review 397) it was pointed out that this act might be extended to include wiretapping. However, to the best of our knowledge no such interpretation has yet been placed on the provisions of this act. If we can be of futher service, please advise us. CALIFORNIA FRANK HOLT, Attorney General. By SAM H. BOYCE, Assistant Attorney General. SACRAMENTO, CALIF., June 27, 1961. DEAR SENATOR ERVIN: In response to your inquiry of June 20, please be advised that California law prohibits wiretapping and mechanical eavesdropping, and I prefer that the law remain so. If any exception is provided with court approval, the authorization should be only to a licensed public utility to perform the tapping and to report to court, and not to a police agency. Very truly yours, STANLEY MOSK, Attorney General. COLORADO THE STATE OF COLORADO, DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL, Denver, April 26, 1961. SENATOR ERVIN: In response to your letter of April 13, 1961 regarding the Colorado law on wiretapping and eavesdropping, please be advised that the following is the only Colorado statute which we have found which is directly in point. Colorado does not have a statute on eavesdropping. The statute in point is found in the Colorado Revised Statutes, 1953, 40-4-17 and reads as follows: "Any person who wilfully displaces, removes, injures or destroys any telegraph or telephone line, wire, cable, pole or conduit belonging to another, or the material or property appurtenant thereto, cuts, breaks, taps or makes any connection with any telegraph or telephone line, wire, cable or instrument be |