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 telegraphic 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 agencies 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. 544, 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 Weeks 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 prosecution 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 OHIO, Columbus, May 3, 1961.

DEAR SENATOR: This will acknowledge your letter of recent date requesting information on Ohio law dealing with wiretapping and eavesdropping.

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

a search and seizure in violation of Article 1, Sec. 14 of the Ohio Constitution is a trespasser and may be sued for his wrongful act."

The leading case dealing with the question is State v. Lindway, 131 Ohio St., 166; 2 N.E. (2d) 490; certiorari denied, 299 U.S. 506. The doctrine was recently followed in State v. Mapp, 170 Ohio St., 427; 166 N.E. (2d) 387, in which the charge was possession of obscene literature.

Trusting the above is responsive to your request for information, I am,
Sincerely yours,

MARK MCELROY, Attorney General.

OKLAHOMA

STATE OF OKLAHOMA,

OFFICE OF THE ATTORNEY GENERAL,

Oklahoma City, May 2, 1961.

DEAR SIR: The attorney general acknowledges receipt of your letter inquiring as to our statutes relating to (1) wiretapping, and (2) eavesdropping. Section 1202 of title 21, Oklahoma 1951, relates to eavesdropping and reads 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."

Section 1757 of the same title relates to wiretapping. It is quite voluminous and would seem to fully cover the subject. A brief description would accomplish nothing. The crime is made a misdemeanor, punishable by fine of $50 to $500, or imprisonment in the county jail not exceeding 1 year or by both such fine and imprisonment.

Our criminal court of appeals has never had occasion to pass upon or construe either statute and we do not know of any case ever arising in the trial courts relating to same. Under these circumstances we would see no particular need of Federal statutes relating to the subject. Of course, in a wider field, there may be problems with which he had had no occasion to deal.

Sincerely yours,

OREGON

SAM H. LATTIMORE, Assistant Attorney General.

STATE OF OREGON,
DEPARTMENT OF JUSTICE,

Salem, April 21, 1961.

DEAR SENATOR ERVIN: In compliance with your request I am transmitting herewith copies of our statutes, two bills now before our legislature on the subject, together with an opinion which will be of interest to your committee.

I have not given the matter of Federal legislation sufficient study to make any significant contribution to your study of the problem. Our national association has a committee working in the field and I am sure they will be glad to make a presentation to you. If they have not already been contacted I would suggest that your committee clerk call the Washington office of our association and make suitable arrangements to have the committee submit its data to you. It is always a pleasure to hear from you, sir.

Very sincerely yours,

ROBERT Y. THORNTON,
Attorney General.

(Following are the Oregon statutes, with 1959 amendments, regulating wiretapping and eavesdropping by electronic devices, under a court order system:)

OREGON REVISED STATUTES

165.535 Definitions applicable to interception of communications. As used in ORS 41.910, 141.720 to 141.740, and 165.540:

(1) "Conversation" means the transmission between two or more persons of an oral communication which is not a telecommunication or a radio communication.

Reprinted, p. 82, "State Statutes on Wiretapping."

85952 O-62-37

(2) "Person” means any person as defined in ORS 174.100 and includes public officials and law enforcement officers of the state, county, municipal corporation, or any other political subdivision of the state.

(3) "Radio communication" means the transmission by radio or other wireless methods of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, equipment, and services (including, among other things, the receipt, forwarding, and delivering of communications) incidental to such transmission.

(4) "Telecommunication" means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other similar connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, equipment, and services (including, among other things, the receipt, forwarding, and delivering of communications) incidental to such transmission. [1955 c.675 § 1; 1959 c.681 § 1]

165.540 Interception of communications. (1) Except as otherwise provided in ORS 141.720 or subsections (2), (3), and (4) of this section, no person shall(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which such person is not a participant, by means of any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual, or otherwise, unless consent is given by at least one participant.

(b) Tamper with the wires, connections, boxes, fuses, circuits, lines, or any other equipment or facilities of a telecommunication or radio communication company over which messages are transmitted, with the intent to obtain unlawfully the contents of a telecommunication or radio communication to which such person is not a participant.

(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual, or otherwise, if all participants in the conversation are not specifically informed that their conversation is being obtained.

(d) Obtain the whole or any part of a conversation, telecommunication, or radio communication from any person, while knowing or having good reason to believe that such conversation, telecommunication, or radio communication was initially obtained in a manner prohibited by this section.

(e) Use or attempt to use, or divulge to others any conversation, telecommunication, or radio communication obtained by any means prohibited by this section.

(2)(a) The prohibitions in paragraphs (a), (b), and (c) of subsection (1) of this section shall not apply to officers, employees, or agents of a telecommunication or radio communication company who perform the acts prohibited by paragraphs (a), (b), and (c) of subsection (1) of this section for the purpose of construction, maintenance, or conducting of their telecommunication or radio communication service, facilities, or equipment; nor shall such prohibitions apply to public officials in charge of and at jails, penal or correctional institutions.

(b) Officers, employees, or agents of a telecommunication or radio communication company who obtain information under paragraph (a) of this subsection shall not use or attempt to use, or divulge to others such information except for the purpose of construction, maintenance, or conducting of their telecommunications or radio communication service, facilities, or equipment.

(3) The prohibitions in subsection (1) of this section shall not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.

(4) The prohibitions in paragraph (a) of subsection (1) of this section do not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public.

(5) (a) Violation of paragraph (a), (b), or (c) of subsection (1) of this section is punishable, upon conviction, by a fine of not more than $3,000 or by imprisonment in the penitentiary for not more than three years, or by both.

(b) Violation of paragraph (d) or (e) of subsection (1) or paragraph (b) of subsection (2) of this section is punishable, upon conviction, by a fine of not more than $1,000 or by imprisonment, or both, such imprisonment to be in the penitentiary for not more than three years or in the county jail for not more than one year. [1955 c.675 §§ 2, 7; 1959 c.681 § 2]

165.545 Prohibitions not applicable to fire or police activities; inadmissibility of recordings. (1) Nothing in ORS 165.535, 165.540, 165.545, 30.780, 41.910 and

141.720 shall be construed as preventing fire or police governmental entities from recording, replaying or broadcasting telephonic or radio messages that directly concern police or fire operation at the telephone or radio operation center or centers of such governmental entity.

(2) No recording of telephonic or radio conversation recorded by fire or police governmental entities shall be admissible in evidence in any court of this state. [1959 c.681 § 6]

30.780 Liability for damages caused by illegal interception of communications. Any person violating ORS 165.540 shall be liable in a civil suit for all damages occasioned thereby. [1959 c.681 § 3]

INTERCEPTION OF COMMUNICATIONS

141.710 [1955 c.675 § 1; repealed by 1959 c.681 § 7]

141.720 Order for interception of telecommunications, radio communications or conversations. (1) An ex parte order for the interception of telecommunications, radio communications or conversations, as defined in ORS 165.535, may be issued by any judge of a circuit or district court upon verified application of a district attorney setting forth fully the facts and circumstances upon which the application is based and stating that:

(a) There are reasonable grounds to believe that a crime directly and immediately affecting the safety of human life or the national security has been committed or is about to be committed.

(b) There are reasonable grounds to believe that evidence will be obtained essential to the solution of such crime, or which may enable the prevention of such crime.

(c) There are no other means readily available for obtaining such information. (2) Where statements are solely upon the information and belief of the applicant, the precise source of the information and the grounds for the belief must be given.

(3) The applicant must state whether any prior application has been made to obtain telecommunications, radio communications or conversations on the same instrument or from the person and, if such prior application exists, the applicant shall disclose the current status thereof.

(4) The application and any order issued under this section shall identify fully the particular telephone or telegraph line, or other telecommunication or radio communication carrier or channel from which the information is to be obtained and the purpose thereof.

(5) The court shall examine upon oath or affirmation the applicant and any witness the applicant desires to produce or the court requires to be produced.

(6) Orders issued under this section shall not be effective for a period longer than 60 days, after which period the court which issued the warrant or order may, upon application of the officer who secured the original warrant by application, in its discretion, renew or continue the order for an additional period not to exceed 60 days. All further renewals thereafter shall be for a period not to exceed 30 days. [1955 c.675 § 3; 1959 c.681 § 4]

141.730 Proceeding under expired order prohibited. Any officer who knowingly proceeds under an order which has expired and has not been renewed as provided in ORS 141.720 is deemed to act without authority under ORS 141.720 and shall be subject to the penalties provided in subsection (2) of ORS 141.990, as though he had never obtained any such order or warrant. [1955 c.675 § 4] 141.740 Records confidential. The application for any order under ORS 141.720 and any supporting documents and testimony in connection therewith shall remain confidential in the custody of the court, and these materials shall not be released or information concerning them in any manner disclosed excent upon written order of the court. No person having custody of any records maintained under ORS 141.720 to 141.740 shall disclose or release any materials or information contained therein except upon written order of the court. [1955 c.675 § 5]

41.910 Evidence of communications obtained in certain manner not admissible. Evidence of the contents of any telecommunication, radio communication or conversation obtained:

(1) By violation of ORS 165.540 and without a court order under ORS 141.720 shall not be admissible in any court of this state.

(2) Under paragraph (a) of subsection (2) of ORS 165.540 shall not be admissible in any court of this state. [1955 c.675 § 6; 1959 c.681 § 5]