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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 Prob. lem: 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 Wire-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-tapping 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, it any, for Federal legislation in this area.

1 Additional statement appears at p. 483.

The North Dakota statute on eavesdropping is section 12-42-05 and provides as follows:

"Every person guilty of secretly loitering about any building with intent to overhear discourse therein and to repeat or publish the same to vex, annoy, or injure others, is guilty of a misdemeanor.”

We have no Supreme Court decision on this statute, nor am I aware of any court decision which would be of any material assistance in construing the provisions of the act or its overall application.

We have no special statutes relating specifically to wiretapping or "bugging." The statutes relating to unlawful use of telephone or telegraph lines do have some application in that direction and are as follows:

"8-10-07. UNLAWFUL USE OF TELEGRAPH OR TELEPHONE LINES.-Every person who, willfully or fraudulently :

"1. Makes any connection with, or cuts, breaks, or taps in any unauthorized manner any telegraph or telephone line, wire, or cable under the control of any other person or company;

"2. Reads or copies by the use of telegraph or telephone instruments or otherwise in an unauthorized manner, any authorized communication or message being sent, transmitted, conveyed, or delivered by telegraph or telephone under the control of any other person or company ;

"3. Prevents, obstructs, or delays by any unauthorized means or contrivance whatever, the sending, conveyance, transmission, or delivery in this state of any such communication or message by telegraph or telephone, or

"4. Aids, employs, agrees, or conspires with any other person to do any of such acts or things, is guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years, or by a fine of not less than two hundred dollars nor more than five hundred dollars, or by both such fine and imprisonment."

“8-10-09. DISCLOSING TELEGRAPH AND TELEPHONE MESSAGES.-Every person who wrongfully shall obtain, or attempt to obtain, any knowledge of a tele graphic or telephonic message, by connivance with a clerk, operator, messenger, or other employee of a telegraph or telephone company, and every clerk, operator, messenger, or other employee who willfully shall divulge to any but the person for whom it was intended, the contents of any telephonic or telegraphic message entrusted to him for transmission or delivery, or the nature thereof, or who willfully shall refuse or neglect duly to transmit or deliver any such message, shall be punished by imprisonment in the county jail for not more than six months, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment."

Again we have no court decision testing the provisions of the aforementioned statutes. We in North Dakota are fortunate not to have organized crime comparable to some other areas. We would like to, but we cannot say that we are free of crime. The crimes with which we are usually confronted are more of the individual types and somewhat on an isolated basis, and are not of an organized underworld or gangland type. In some instances we have a rash of burglaries which quite frequently are traced to certain individuals or groups of individuals, but they do not fall within the class of organized crime. Any influence that organized crime might have in this State is considered minimal and of no great significance.

The con artist or the perpetrator of fraud, such as fraudulent sales of securities, fraudulent collection of advance fees for the sale of property, and the fraudulent collection in advance fees to obtain a loan have been of some consequence in this State. Convictions in Federal court were obtained against the fraudulent sale of securities and the fraudulent collection of advance fees for the sale of property. Also the State prosecuted successfully the fraudulent sale of securities.

As a matter of interest, presently individuals are being prosecuted for the alleged fraud in connection with obtaining advance fees for purposes of securing a loan to the individual, etc. Other than these instances mentioned we have no evidence of organized crime in this State, at least to any proportion.

Somewhat in line with your problem, Judge Nuessle (deceased) in 1925 made a rather realistic observation in the case of State v. Fahn, 53 N.D. 203, and 205 N.W. 67 in a case involving bootlegging as follows:

"Even those courts committed to the Federal holding recognize the general rule that the admissibility of evidence is not affected by the illegality of the

means through which it was obtained. They refuse to apply this rule, however, where the illegality arises by reason of a violation by governmental ageucies of the constitutional provision against unreasonable searches and seizures. See Burdeau v. McDowell, 256 U.S. 465, 65 L. ed. 1048, 13 A.L.R. 1159, 41 Sup. Ct. Rep. 574; Hughes v. State, 145 Tenn. 541, 20 A.L.R. 639, 238 S.W., 588, supra. Consistent with this holding, if in the instant case the defendant's contention be sustained, and the evidence in question be held incompetent and inadmissible herein, nevertheless, it will be competent and admissible against the defendant in a prosecution in the Federal court based on the same facts. See Week: v. United States, 232 U.S. 383, 58 L. Ed. 652, L.R.A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann Cas. 1915C, 1177, supra; Kanellos v. United States (C.C.A. 4th) 282 Fed. 461; Youngblood v. United States (C.C.A. 8th) 266 Fed. 795; Timonen v. United States (C.C.A, 6th) 286 Fed. 935; Epstein v. United States (C.C.A. 4th) 284 Fed. 567. The effect of such a distinction is such, that if one, not an officer, enters the house of another though unlawfully and with felonious intent, he may testify as to what he sees and hears therein, and any property that he may unlawfully appropriate which is otherwise relevant is admissible in evidence in a criminal prosecution against the owner of the house. But if he who enters the house be an officer, the fact that his entry is unlawful, however lawful his intent, closes his eyes and ears and seals his lips and so defiles any property he may seize as to render it abhorrent to and outlawed in a court of justice. If on his unlawful entry he discovers evidence of a crime, however heinous it may be, the courts cannot avail themselves of the facts thus discovered by him. If he seize a bootlegger's still, a murderer's knife, or an anarchist's bomb, though the still be dripping, the knife wet, and the time fuse set, they may not be received in evidence, but must be returned to the owner on his application. We cannot subscribe to such a distinction. The history of the law does not justify it. The State and society are not to be thus penalized by the courts on account of the injudicious or unlawful acts of an individual. While § 18 of the Constitution forbids unreasonable searches and seizures, it does not penalize the doing of the forbidden acts. There is no word in it declaring that evidence obtained through its violation shall be incompetent and inadmissible in a criminal prose cution against him whose rights as thus guaranteed have been infringed upon. Neither has the legislature enacted any statute providing that such evidence so obtained shall be incompetent. * * *”

As to the subject matter we have not had occasion to make a productive study, largely because we have had no serious problem confronting us on this subject. For the same reason we have no specific recommendations to offer. At the same time we would like to conclude that the thoughts expressed by Judge Nuessle quoted above are realistic and have merit. Yours very truly,

PAUL M. SAND, Assistant Attorney General.

OHIO

OFFICE OF THE ATTORNEY GENERAL,

STATE OF OA110,

Columbus, May 3, 1961. DEAR SENATOR: This will acknowledge your letter of recent date requesting information on Ohio law dealing with wiretapping and cavesdropping.

The Revised Code of Ohio contains no statute in regard to the mentioned subjects. Nor do I find that the courts of this State have dealt with the question in connection with admissibility of evidence in a criminal case. However, it might be said that the policy in which the specific questions were impliedly involved is rather clear. In 15 Ohio Jurisprudence, 2d, Criminal Law, section 369, it is stated at page 543 :

"* * * Ohio, in accord with the majority view, held that the fact that property has been illegally obtained does not render it inadmissible in evidence against the accused. The rule is the same whether the illegal search is of the premises of the accused, of his person, or of his automobile. *** The admission of such evidence does not violate Sec. 10 of Article 1 of the Ohio Bill of Rights, which prohibits compelling any person in any criminal case to be a witness against himself, nor is it a denial of due process under the Fourteenth Amendment to the Federal Constitution. It may be noted, however, that the officer who makes

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