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with the legislature would require these officials to obtain a court order in advance of a tap, or, in case of emergency, a court order validating the tap within 72 hours after it is made. In addition some of the bills would make illegally obtained wiretapped evidence inadmissible as evidence in State court proceedings.
In past years attempts to pass such amendments, though receiving strong support both from inside and outside of the legislature, have failed largely on account of opposition from the preceding administrations of attorneys ge "As Mr. Justice Holmes once wrote,” the attorney general observed,
" 'wiretapping is a dirty business.' Only the prevention or solution of a major crime could possibly justify its use."
The most eloquent statement against wiretapping, he said, was that of Mr. Justice Brandeis in his great dissent in the Olmstead case, where he wrote:
"The makers of our Constitụtion * * * conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a vidlation of the fourth amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the fifth."
I place myself squarely behind those words.
STATE OF MICHIGAN,
Lansing, May 3, 1961. DEAR SENATOR ERVIN: This will acknowledge your recent letter as chairman of the Constitutional Rights Subcommittee, making inquiry regarding Michigan law on wiretapping and eavesdropping.
Wiretapping in Michigan is a circuit court misdemeanor under the provisions of section 28.808, Michigan Statutes Annotated, being section 750.540, Compiled Laws of 1948, which provides as follows:
"Any person who shall willfully and maliciously cut, break, tap, or make any connection with or read, or copy, by the use of telegraph or telephone instruments, or otherwise, in any unauthorized manner, any message, either social or business, sporting, commercial or other news reports, from any telegraph or telephone line, wire or cable so unlawfully cut or tapped in this state; or make unauthorized use of the same, or who shall willfully and maliciously prevent, obstruct or delay by any means or contrivance whatsoever the sending, conveyance or delivery, in this state, of any authorized communication, sporting, commercial or other news reports, by or through any telegraph or telephone line, cable or wire under the control of any telegraph or telephone company doing business in this state, or who shall willfully and maliciously aid, agree with, employ, or conspire with any other person or persons to do any of the aforementioned unlawful acts, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars."
We have no statute in Michigan covering eavesdropping. However, in the recent case of People v. Maranian, 359 Mich. 361 (Oct. 15, 1959), our Supreme Court made some rulings on wiretapping. This case involved the making of extortion threats over the telephone. The recipient of these threats gave his consent to a police lieutenant to place a tape recorder on his telephone.
Our high court held in that regard as follows:
"The recording in exact words of a voice or voices of those engaged in communicating the threats of injury to the victim by placing a recording device on the receiver's own telephone does not constitute wiretapping any more than would the listening in on an extension phone."
The court then cited a number of U.S. Supreme Court decisions which upheld the admission in evidence of tape recordings.
In the Maranian case our court also held that the existence of section 605 of the Federal Communications Act does not render inadmissible the recordings employed in this State criminal prosecution. The court also held that the admission of such recordings did not violate the statute which we have quoted in full above.
It will be noted that in this case the police had the consent of the recipient of the extortion threats but not the consent of the sender. Consequently, it is quite evident that under our Supreme Court rulings, the consent of the sender is not necessary in order for these recordings to be admitted in evidence. If we can be of any further assistance to you, kindly call upon us. Very truly yours,
PAUL L. ADAMS, Attorney General.
STATE OF MISSISSIPPI,
Jackson, April 24, 1961. DEAR SENATOR ERVIN : Replying to your letter of the 13th with respect to your present examination of the problems raised by wiretapping and eavesdropping and the extent to which Federal legislation on these subjects may be desirable or practical, there are no decisions of the Supreme Court of Missisippi nor are there any statutes of Mississippi on this subject. Therefore, while I am very much interested in the outcome of your investigation and in what your recommendations might be, not having had the problem presented directly to me, I have not made the critical study into all the ramifications of the problem that would be necessary to intelligently advise with you. Suffice it to say, however, I am definitely of the opinion that such things 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 in this electronics age in which all the laws, statutory and judicial, seem to be in favor of the criminal element and in limitation of the investigative methods of law enforcement agencies. Respectfully yours,
JOE T. PATTERSON, Attorney General.
A88istant Attorney General.
ATTORNEY GENERAL OF MISSOURI,
Jefferson City, June 23, 1961. DEAR SENATOR ERVIN: * * *
I shall now attempt to answer your questions as to Missouri law on wiretapping, eavesdropping, etc., and my opinion as to the desirability of Federal legislation.
Missouri has no statute either permitting or prohibiting wiretapping or eavesdropping. Back some years ago legislation was introduced in the general assembly which would have legalized wiretapping by police officers, but such legislation was defeated.
Further, we have no case law regarding the admissibility of wiretap evidence in a court proceeding or whether such evidence would constitute an illegal search and seizure under the Missouri constitution.
In short, Missouri is totally devoid of any authority, statutory or case law, on wiretapping and eavesdropping.
As to my opinion on the desirability of Federal legislation, I should like to state that I am opposed to legalized wiretapping and eavesdropping and hence, I am opposed to S. 1086, S. 1221, and S. 1495. I would favor the strengthening of section 605 of the Federal Communications Act so as to make the probibition more explicit and clear up the ambiguity over "intercept * * * AND divulge."
I have consistently registered my opposition to legalized wiretapping at rious meetings of the National District Attorneys Association during the time etteided such meetings as the circuit attorney of St. Louis.
On May 22, 1958, I testified before Constitutional Rights Subcommittee (of which the late Senator Hennings served as chairman) and expressed my opposition. I enclose a copy of the statement which I made to the committee at that time. This statement still represents my thinking on the subject.'
8 Mr. Eagleton's testimony and statement appear in part 2, "Wiretapping. Eavesdropping and the Bill of Rights,' p. 259.
On June 14, 1961, I attended the annual conference of the National Attorneys General Association. A resolution was introduced and ultimately passed which favored enactment of S. 1086. On behalf of the State of Missouri, I voted against the resolution as did the States of Massachusetts, Rhode Island, Utah, and Virginia.
I hope the foregoing is of help to you. If you desire any further information, please do not hesitate to call on me. Yours very truly,
Thomas F. EAGLETON,
STATE OF MONTANA,
Helena, April 18, 1961. DEAR SENATOR ERVIN: In reply to your letter dated April 13, 1961, wherein you requested me to outline the Montana laws concerning wiretapping and eavesdropping, I submit the following information:
The question of wiretapping has only been before the courts in Montana indirectly. In State v. Porter, 125 Mont. 503, 242 P. 2d. 984 (1952) the use of wire tap evidence was attempted to be used for impeachment purposes. The lower court refused to allow the recordings, and the Supreme Court of Montana held this evidence to have been improperly refused.
There are three statutes in Montana that might be used should a good test case arise. The first of these is section 94-3203, Revised Codes of Montana, 1947, which provides :
"Any person who willfully and maliciously displaces, removes, injures, destroys, or obstructs any telegraph, telephone, or electric light line, wire, cable, pole, or conduit belonging to another, or the material or property appurtenant thereto, or maliciously and wilfully cuts, breaks, taps, or makes any connection with any telegraph or telephone line, wire, cable, or instrument belonging to another, or maliciously and wilfully reads, takes, or copies any messages, communication, or report intended for another passing over any such telegraph or telephone line, wire, or cable, in this state, or who wilfully and maliciously prevents, obstructs, or delays by any means or contrivance whatsoever the sending, transmission, conveyance, or delivery in this state of any message, communication, or report by or through any telegraph or telephone line, wire, or cable or who uses any apparatus to unlawfully do, or permit or cause to be done, any of the acts hereinbefore mentioned shall be deemed guilty of a misdemeanor * * *."
The above statute does not seem to contemplate protecting persons whose lines are tapped, rather it seems to protect the public communications system.
An express statute dealing with wiretapping is section 94-35-220, RCM, 1947, which provides :
"Every person who, by means of any machine, instrument, or contrivance, or in any other manner, wilfully and fraudulently reads, or attempts to read, any message, or learn the contents thereof, while the same is being sent over any telegraph line, or wilfullly and fraudulently, or clandestinely, learns or attempts to learn the contents or meaning of any message, whilst the same is in any telegraph office, or is being received thereat or sent therefrom, or who uses or attempts to use, or communicates to others, any information so obtained, is punishable as provided in the preceding section.”
These statutes have not been amended since 1895. Consequently, the Montana court may follow the California courts and hold these statutes should be interpreted to include telephone lines or telephone messages. The California court said the rule of strict construction would not apply in a situation as was presented. In Montana the same result might be reached with the use of section 94-101, RCM, 1947, which provides :
“The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice."
I do not know of any Montana law or cases dealing with the question of eavesdropping.
I have no comments on the desirability or need for legislation in this area.
If I can be of further assistance to you in this matter please do not hesitate to call upon me. Very truly yours,
FORREST H. ANDERBON, Attorney General.
STATE OF NEBRASKA,
Lincoln, April 17, 1961. DEAR SENATOR: In reply to your letter of April 13, the Nebraska statute on wiretapping provide as follows:
"If any person or persons shall (1) willfully and without lawful authority cut, break, tap, or make connection with any telegraph or telephone line, wire, cable, or instrument, or read or copy, in any unauthorized manner, any message, communication, or report passing over it, in this state, (2) willfully prevent, obstruct, or delay, by any means or contrivance whatsoever, the sending, transmission, conveyance, or delivery in this state of any authorized message, communication, or report by or through any telegraph or telephone line, wire, or cable under the control of any telegraph or telephone company doing business in this state, (3) aid, agree with, employ, or conspire with any person or persons to unlawfully do or perform, or cause to be done, any of the above-mentioned acts, or (4) occupy, use a line, or shall knowingly permit another to occupy, use a line, room, table, establishment, or apparatus to unlawfully do or cause to be done any of the above-mentioned acts, erery such person or persons shall upon conviction thereof he fined in any sum not less than twenty-five dollars nor more than five hundred dollars, or be imprisoned in the penitentiary not less than one year nor more than three years, or both." (Section 86-328, R.R.S. 1943.)
With reference to the desirability or need for Federal legislation in this area. it is my personal opinion that control or prevention of wiretapping by Federal officers is a proper area of legislative concern for the Congress, and that the States have no concern in making recommendations in that particular area. On the other hand, I believe that Congress might properly assume that the individual States are not without honor in protecting the constitutional rights of their citizens and should not be subjected to oppressive Federal restrictions in this matter. Proper Federal standards applying to the States in this matter of wiretapping would not be out of line, and as a practical matter would undoubtedly hare to be incorporated in any bill in order to give it a chance for passage.
Law enforcement officers in this State do not use wiretapping, but if conditions change in this State to the extent that the people feel that there are occasions when it should be used, I feel that the people of this State should not be barred by Federal legislation from amending our statute. Very truly yours,
CLARENCE A. H. MEYER, Attorney General.
STATE OF NEVADA,
Carson City, Nev., April 19, 1961. DEAR SENATOR ERVIN: I enclose herewith a copy of Nevada Revised Statutes, chapter 200, sections 200.610 through 200.680, dealing with the interception and disclosure of wire and radio communication, private conversations. These sec tions were added to the Nevada law by 1957 Statutes of Nevada, page 334.*
Obviously, we have not had a great deal of experience in view of the short history of this law, however, to date, I have heard of, and know of, no legitimate criticism of the said statute in law-enforcement circles.
1 Statute, reprinted at pp. 58-60, "State Statutes on Wiretapping," prohibits wiretapping and eavesdropping except by law-enforcement officers under court order, in connection with certain crimes.
The work of this office is largely in the field of civil legal service to State agencies and we have little to do with local law enforcement. Therefore, I am not in a position to pass along to you any comments that would be helpful to your committee. Very truly yours,
ROGER D. FOLEY, Attorney General.
Concord, April 19, 1961. DEAR SENATOR ERVIN: You have advised by letter that your subcommittee has scheduled hearings in the near future to examine the problems arising from evidence obtained through wiretapping and eavesdropping with a view to determining the desirability of Federal legislation with respect to these subjects and have asked this office to submit a brief description of New Hampshire law.covering wiretapping and eavesdropping.
We find no statutes in New Hampshire dealing directly with wiretapping or eavesdropping but call your attention to two New Hampshire Supreme Court cases dealing with the subject. In State v. Mara, 96 N.H. 463 at 466 and 467, the court stated in substance that evidence illegally obtained is admissible. This was brought out again in State v. Tracey, 100 N.H. 267, where the court held that evidence obtained through wiretapping of intrastate telephone lines is admissible in State criminal prosecutions. Inasmuch as the latter case is the most recent decision dealing with wiretapping we are enclosing a Thermo-Fax copy of the court's opinion for your information. Sincerely yours,
GARDNER C. TURNER, Attorney General.
MUNICIPAL COURT OF AMHERST, No. 4488
ARGUED JUNE 5, 1958; DECIDED JULY 6, 1956 COMPLAINTS, for bookmaking in violation of the gambling statute, RSA 577:6 Each of the thirty-one complaints charged that the defendant did "register bets on the results of horse races in such a way that a hope or expectation of gain by luck or chance was made.” The defendant, through his counsel, waived the reading of the complaints and entered a plea of not guilty for each one. During the hearing in the municipal court the State sought to introduce in evidence tape recordings of conversations intercepted on the defendant's telephone line. These conversations and messages were intercepted and recorded by means of a "drop wire" attached to the circuit on which the defendant's telephone was connected and simultaneously recorded on a tape recorder connected to the "drop wire.” This so-called ap was placed at the instance of the law enforcement agents and members of the Nashua police force who were regularly assigned to attend and service the recording device. The defendant was unaware that messages and converse ions on his telephone line were being intercepted and did not give his permission for such interception and recording.
The defendant objected to the introduction in evidence of the tape recordings on the ground they were illegal under state and federal law. The trial was suspended and the Amherst municipal court through Charles J. Lincoln, justice, and William C. Vose, associate justice, sitting “En Panel" transferred the following questions :
"1: Is the obtaining of evidence by means of wire tapping intrastate telephone lines illegal in New Hampshire?
“2: Is evidence obtained by tapping intrastate telephone lines admissible in criminal proceedings in New Hampshire?
“3: Does tapping of intrastate telephone lines constitute illegal search and seizure under the New Hampshire constitution?
"4: Do decisions and rulings made by the Justice and Associate Justice of a Municipal Court, sitting "en panel” abridge the rights of a respondent appearing before them?"