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I do not know of any Montana law or cases dealing with the question of ea vesdropping.

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. ANDERSON, Attorney General.

NEBRASKA

STATE OF NEBRASKA,
DEPARTMENT OF JUSTICE,

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 wire tapping 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.

NEVADA

STATE OF Nevada,
DEPARTMENT OF ATTORNEY GENERAL,

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.

7 Statute, reprinted at pp. 58-60, "State Statutes on Wiretapping," probibits 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.

NEW HAMPSHIRE

ATTORNEY GENERAL,

Concord, April 19, 1961. DEAR SENATOR EBVIN: 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
STATE V. MILTON E. TRACEY (100 N.H. 267)

ARGUED JUNE 5, 1956; 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 cap 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 tel hon 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?"

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Louis C. Wyman, Attorney General, Elmer T. Bourque, Assistant Attorney General and Conrad Danais, county solicitor (Mr. Bourque orally), for the State.

Robert J. Doyle (by brief and orally), for the defendant.

KENISON, C. J. This is a test case to determine whether evidence obtained by wiretapping is admissible in state criminal prosecutions and is a case of first impression in this jurisdiction. The only relevant state statutory provision is RSA 572:3, which makes it a felony to injure, destroy or damage any wires or other materials or fixtures * * *” of any public utility. Similar statutes have been uniformly construed as applicable only to damage or injury to the wires and property of the public utility and are in no sense regarded as regulating or prohibiting wiretapping. State v. Nordeskog, 76 Wash. 472, 474); Young v. Young, 56 R.I. 401, 406. This statute which was enacted in 1917 (Laws 1917, c. 145, 8. 1) is a typical malicious mischief statute and has no application to the wiretapping involved in this proceeding. Westin, "The Wire-Tapping Problem: An Analysis and a Legislative Proposal," 52 Col. L. Rev. 165, 182 (1952).

The legality and desirability of using evidence obtained by wiretapping has been a consistently controversial subject. 8 Wig. Ev. (3d ed.) 8. 2184b; Olmstead v. United States, 277 U.S. 438; Hearings before Subcommittee No. 5 (House) Committee on the Judiciary on H.R. 762, 867, 4513, 4728 and H.R. 5096, 84th Cong., 1st sess. (1955). The Communications Act of 1934, 47 U.S.C.A., 8. 605, was first construed broadly to prohibit the testimony of federal agents as to the contents of intercepted telephone messages and information obtained through wiretapping leads. Nardone v. United States, 302 U.S. 379; Nardone v. United States, 308 U.S. 338. Likewise Section 605 was construed to prohibit evidence in federal courts of intrastate messages as well as interstate messages. However this section soon received a narrow and restricted construction (Goldstein v. United States, 316 U.S. 114) and it was ruled in Goldman v. United States, 316 U.S. 129, that it did not prohibit evidence obtained by the use of a detectaphone. In 1952, in On Lee v. United States, 343 U.S. 747, an informer, equipped with a concealed walkie-talkie transmitter, talked with the defendant in his laundry while outside a federal agent listened in with a receiver and later testified at the defendant's trial. A majority of five held the evidence did not violate either the Fourth Amendment or Section 605 of the Communications Act. See 66 Harv. L. Rev. 128. Finally in Schwarts v. Texas, 344 U.S. 199, it was decided that Section 605 did not require the exclusion of wiretapping evidence in state courts.

More recent decisions hold out little hope for those charged with horserace bookmaking. In 1954, in Irvine v. California, 347 U.S. 128, there were five separate opinions but a majority ruled that in a state prosecution evidence of bookmaking obtained from a concealed microphone in the defendant's home was not inadmissible and did not violate either the Communications Act or the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25. In the same year it was held that a Maryland statute which prohibited admission in criminal cases of illegally obtained evidence but allowed it for certain gambling misdemeanors in certain populous counties was valid and did not violate the Fourteenth Amendment. Salsburg v. Maryland, 346 U.S. 545.

It is doubtful if any responsible citizen would approve of indiscriminate wiretapping by anybody for any purpose. There is much to be said for the defendant's argument that wiretapping evidence is dangerous and subject to blackmail, encourages illegal law enforcement, is often no better than perjured testimony given in open court and is "slimy activity which directly and adversely affects our social and economic life.” On the other hand, there is much to be said for the view that some regulated wiretapping for certain serious crimes is a necessary adjunct for the protection of national and state security and effective police enforcement of law. Some of these conflicting considerations are set forth in Rogers, "The Case for Wiretapping," 63 Yale L.J. 792 (1954) and Donnelly, “Comments and Caveats," Id., 799. "In the light of ubiquity of wiretapping in daily life, the uncertainty, abuse, and confusion surrounding the enforcement of Section 605, and the general inadequacy of federal and state laws dealing with wiretapping, it appears clear that legislative action must be taken. To continue the present stalemate, in which both the citizen and the law enforcer suffer, would be intolerable. To expect the Supreme Court to use the existing statute to find a solution is to confuse the function of the

Court with that of Congress." Westin, “The Wiré-Tapping Problem : Analysis and a Legislative Proposal,” 52 Col. L. Rev. 165, 186 (1952).

An even stronger case can be made for the proposition that a state supreme court should not establish the ground rules for the use and to prevent the abuse of wiretapping when the Legislature of this state has taken no action on the subject. Whether wiretapping should be allowed for certain serious crimes or not at all, whether wiretapping if allowed should first be approved by the Attorney General or a judge or both, whether violators of wiretapping should be liable in a civil suit for the violation of a right of privacy at a stated minimum of dollars and a host of other matters are questions which are obviously the province of legislative determination and regulation. While the process of judicial interpretation may in some instances run close to the lines of legislation, there is no constitutional mandate which requires or authorizes the judiciary to prescribe a legislative program for the regulation of wiretapping. See Joint Legislative Committee To Study Illegal Interception of Communications, Report, “1956 McKinney's Session Law News of New York, A-90 to A-117"; 30th Report Judicial Council of Massachusetts 49 (1954). Furthermore, there is some evidence that attempts in other jurisdictions by the judiciary to police police enforcement have not been a marked success. Waite, “Judges and the Crime Burden,” 54 Mich. L. Rev. 169 (1955).

For almost one hundred years this state has adhered to the majority rule that evidence secured through illegal search and seizure is admissible even though there are criminal and civil sanctions against those who obtain the evidence in that manner. N.H. Const., Pt. 1, Art. 19th. State v. Flynn, 36 N.H. 64; Boynton v. Trumbull, 45 N.H. 408, 410. And we have continued to follow that rule even after the decision in Weeks v. United States, 232 U.S. 383 established the minority rule which excluded such evidence in the federal courts. State v. Agalos, 79 N.H. 241; State v. Sturtevant, 96 N.H. 99, 104. If wire-tap ping by the police is "the Orwellian horror" depicted by some (Note, “WireTapping in New York,” 31 N.Y.U.L. Rev. 197, 218 (1956)), the Legislature should make it a crime and subject it to such regulations as are demanded in the light of modern electronic devices and discoveries. Until that time we adhere to the views expressed in 1951 in State v. Mara, 96 N.H. 463, 467 : “New Hampshire has followed the majority rule for a century without legislative restriction. Neither rule is entirely satisfactory to both society and the individual and both rules may be the subject of abuse. Unless the majority rule is subjected to legislative change, we shall continue to follow it unless a higher judiciary requires otherwise. The latter event 'must await the judicial miracle of the loaves and fishes, four becoming five.' Rothensies v. Cassell, 103 F. (20) 834, 837."

As the matter now stands wire-tapping is not prohibited by any state statute and evidence obtained by wire-tapping is admissible in this state. Section 605 of the Communications Act of 1934 does not preclude the states from admitting such evidence, and under the longstanding rule in this state such evidence is not inadmissible even if it were obtained by means of an illegal search and seizure.

The reference in the reserved case to the justice and associate justice sitting "en panel" is a little oblique but it is assumed that it means that the justice and associate justice were sitting jointly. Whatever it means the state concedes that they have found no authority for it and we know of none. RSA 502:5 provides that where the justice of the municipal court is absent, disqualified or unable to attend, the special justice, commonly referred to as the associate justice, shall perform his duties. The municipal courts are established on the basis that only one justice shall sit in a case. The practice in the Amherst municipal court of the justice and special justice sitting together is without statutory authority and shall be discontinued in the future. Since the parties to this litigation requested a decision on the transferred questions we have treated them as transferred by the justice of the Amherst municipal court in accordance with the statute.

Remanded. All concurred.

NEW JERSEY

STATE OF NEW JERSEY,

April 19, 1961. DEAR SENATOR ERVIN: You have asked for the New Jersey law on wiretapping and eavesdropping. This is N.J.S. 2A :146–1.

“2A :146–1. Any person who willfully and maliciously :

“(a) Cuts, breaks, taps or makes any connection with a telegraph or telephone line, wire, cable or instrument belonging to any other person; or

"(b) Reads, takes, copies, makes use of, discloses, publishes or testifies concerning a message, communication or report intended for any other person and passing over any such telegraph or telephone line, wire or cable in this state; or

"(c) Uses any apparatus unlawfully to do any of such acts“Is guilty of a misdemeanor."

The most significant recent judicial decisions under this statute are State v. Giardina, 27 N.J. 313, Morse v. Forbes, 24 N.J. 341 and State v. Vanderhave, 47 N.J. Super. 483. The Supreme Court of New Jersey construes "willful and malicious” in Mor88 v. Forbes to encompass interception of telephonic communications with the full knowledge of the facts, in a conscious and purposeful manner, and without legal justification.

I favor the legislation sponsored by Senator Keating to sanction wiretapping by State or local law enforcement officers pursuant to court order. This legislation would, as I understand it, remove the uncertainty remaining after the Pugach decision of the U.S. Supreme Court as to the validity of State wiretap ping or other interceptions pursuant to court order, in view of section 605 of the Federal Communications Act. I trust that this is the information which you were seeking. Sincerely yours,

David D. FURMAN.

Attorney General.

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STATE OF NEw MEXICO,
OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE,

Santa Fe., April 18, 1961. DEAR SENATOR ERVIN: Your letter of April 13, 1961 regarding Federal legislation to be examined by the Senate Judiciary Subcommittee on Constitutional Rights is before me. Thank you for it.

The only relevant statute of the State of New Mexico, of which I am aware is section 40–37–5, New Mexico Statutes Annotated, 1953 compilation which is attached hereto for your convenience.

As to my views with respect to eavesdropping and wiretapping I most sincerely hope that neither will be authorized or condoned by Federal legislation. I regard both as being contrary to our way of life; perhaps they are suitable in a police state. They are neither necessary nor desirable in the United States.

If I can be of further assistance to you and your committee, please feel free to call upon me. Sincerely yours,

EARL E. HARTLEY,

Attorney General.

NORTH CAROLINA (Opinion of Attorney General Bruton appears in his prepared statement at page 17.)

NORTH DAKOTA

STATE OF NORti DAKOTA,

Bismarck, April 25, 1961. DEAR SIR: This is in response to your letter in which you ask for a brief description of the North Dakota laws relating to wiretapping and eavesdropping and also invite comments or recommendations on the desirability and need, if any, for Federal legislation in this area.

1 Additional statement appears at p. 483.

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