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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. (20) 490; certiorari denied, 299 U.S. 506. The doctrine was recently followed in State v. Mapp, 170 Ohio St., 427 ; 166 N.E. (20) 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,

SAM H. LATTIMORE,

Assistant Attorney General.
OREGON

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 0-62-37

(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 g 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, tele communication, 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 probibitions 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 88 2,7; 1959 c.681 82)

165.545 Probibitions 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 g 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 know. ingly 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 except 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 6.675 $ 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 shan not be admissible in any court of this state. [1955 c.675 8 6; 1959 c.681 8 5)

PENALTIES

141.990 Penalties. (1) Any person who maliciously and without probable cause procures a search warrant to be issued and executed is guilty of a misdemeanor.

(2) Violations of ORS 141.730 or 141.740 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. [Subsection (2) enacted as 1955 c.675 87]

(Following is a related opinion by the Oregon Attorney General on the subject of wiretapping :)

STATE OF OREGON,
DEPARTMENT OF JUSTICE,

Salem, February 1, 1961.
Hon. CHARLES E. RAYMOND,
District Attorney, Multnomah County,
Multnomah County Courthouse, Portland, Oreg.:

You ask our opinion as to the following:

“(1) Do the provisions of ORS 165.535 apply to Federal officers in the performance of their official duties?

“(2) If point (1) is answered in the positive, is a narcotic violation a crime of a type that would 'directly and immediately affect the safety of human life to qualify for an ex parte order for the interception of communications and conversations under the provisions of ORS 141.720?

In your letter requesting our opinion, you state:

"The Treasury Department, Bureau of Narcotics, feels that the interpretation of this act could have a vital effect upon the investigation of narcotic violations and the suppression of the narcotics traffic. They have found the use of pocket radios, miniature recorders and other technical equipment to be an invaluable aid in developing cases against dealers in drugs who deal only with people they know and trust."

ORS 165.535 is as follows:
“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.

“(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."

ORS 165.540(1), which applies to the use of pocket radios, miniature recorders, and other technical equipment, provides that 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.”

While in both England and America public officers are, as a rule, exempt from arrest in civil cases while engaged in the performance of the duties of their office, this exemption is not extended to cases of a criminal nature (United States v. Hart (1817) 26 Fed. Cas. No. 15, 316; United States v. Kirby, 7 Wall. (U.S.) 482, 19. L. Ed. 278; Williamson v. United States, 207 C.S. 425, 32 L. Ed. 278; United States v. Wise, 82 Fed. Cas. No. 16, 746a).

One of the earliest, and a leading case on the extent of the immunity of Federal law enforcement officers from State criminal statutes while in performance of their duties, is United States v. Hart, supra. In this case the defendant was indicted for knowingly and willfully retarding the passage of the U.S. mail in violation of a Federal statute making it a crime to stop or otherwise interfere with the transportation or carriage of the mail. The defendant was a peace officer of the city of Philadelphia and did on one occasion stop the mail stage in its passage on a city street to the post office on the ground that the stage was traveling at an immoderate speed so as to endanger the lives and safety of the citizens in violation of a city ordinance. It was contended by the defendant that the ordinance afforded a complete justification for the arrest; if not, that the driving, in a populous street in such a manner as to endanger the safety of the inhabitants amounted to a breach of the peace at common law; and that the act of Congress ought not to be so construed as to render it criminal for any person to prevent a mail carrier from violating the peace, because a stoppage of the mail may be the consequence of such prevention. The Court in its opinion said:

If the ordinance of the city is in collision with the act of Congress, there can be no question but that the former must give way. The Constitution of the United States and the laws made in pursuance thereof, are declared by the Constitution to be the supreme law of the land; and the judges both of the Federal and State courts, are bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. But there is in truth no collision between this ordinance and the act of Congress on which the indictment is founded. * * * we are of the opinion that it (act of Congress) ought not to be so construed as to shield the carrier against this preventive remedy, because a temporary stoppage of the mail may be the consequence.

In Johnson v. Maryland (254 U.S. 51, 56, 65 L. Ed. 126), Mr. Justice Holmes in discussing the question of immunity of Federal officers under State statutes said:

"Of course, an employee of the United States does not secure a general immunity from State law while acting in the course of his employment. * * * It very well may be that, when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment-as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets. ***

"It seems to us that the immunity of the instruments of the United States from State control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a State officer, upon examination, that they are competent for a necessary part of them, and pay a fee for permission to go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders, and requires qualifications in addition to those that the Government has pronounced sufficient. * * *"

In this case the Court rejected a State statute requiring certain examinations for drivers' licenses and payment of fees to the State. The defendant was an employee of the U.S. Post Office Department and while driving a Government motor vehicle in transportation of mail was arrested, tried, convicted, and fined in Maryland for driving without having obtained a license from the State.

In United States v. Kirby (74 U.S. 482, 486, 19 L. Ed. 279), the Court held that the temporary detention of the mail, caused by the arrest of its carrier on a warrant issued by a State court on an indictment found therein for murder, is not an obstruction or retarding of the passage of the mail, or of its carrier, within the meaning of the act of Congress making it a criminal offense to do so. In so holding the Court said:

"* * * When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the

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