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 § 7] (Following is a related opinion by the Oregon Attorney General on the subject of wiretapping:) Hon. CHARLES E. RAYMOND, District Attorney, Multnomah County, Multnomah County Courthouse, Portland, Oreg.: You ask our opinion as to the following: STATE OF OREGON, DEPARTMENT OF JUSTICE, Salem, February 1, 1961. "(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 U.S. 425, 52 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 attainment of other ends may have been his primary object. All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged. * * The rule is different when the process is issued upon a charge of felony. No officer or employee of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the Constitution and laws. * * *" In Hall v. Commonwealth (129 Va. 738, 105 S.E. 551, 554), the defendant was convicted of driving a Government-owned motor vehicle carrying the U.S. mail at a rate of speed in excess of the State statute. The defendant was employed by the Postmaster General; his duties consisted of operating a Government-owned motortruck in transporting the U.S. mail over a route designated by the Postmaster General, extending from Washington, D.C., to Winchester, Va., over which he operated under a time schedule fixed by the Postmaster General. The question presented for determination by the court was whether the provisions of the State automobile law must be observed by a U.S. employee while engaged in transporting U.S. mail in a Government-owned motor vehicle pursuant to the directions of and on a time schedule fixed by the Postmaster General. The court held that the State statute relating to speed of automobiles on public highways is a valid exercise of the police power of the State, and does not conflict with the U.S. statute relating to regulations of the mail or schedules fixed by the Postmaster General as to post routes and time schedules and must be obeyed by postal employees transporting mail. The court in its opinion said: "The mere fact that the provisions of the State statute in question affect a Federal employee or instrumentality is immaterial; and certainly where the statute does not attempt to control and does not in its operation even incidentally interfere in any way with the performance of duty of the Federal employee it is valid. "So far as appears from the record of the case before us 'the United States has not spoken' on the subject of the speed at which it was the duty of the accused to travel in such way as to make the provisions of the Virginia statute in question in any way interfere with the performance of the Federal duties of the accused." To the same effect see Commonwealth v. Closson, 229 Mass. 329, 118 N.E, 653. It is to be noted that 47 U.S.C.A., 605, provides in part that: **** no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; The courts have held that this applied equally to interstate and intrastate communication and to State and Federal officers: Massicot v. United States, (C.A. La. 1959) 266 F. (2d) 955; Benanti v. United States, (1957) 355 U.S. 96, 2 L. Ed. (2d) 126; Elkins v. United States, (1960) 364 U.S. 206, 4 L. Ed. (2d) 1669. This statute appears to be limited in application and does not cover "bugging" or other like forms of eavesdropping. The Congress of the United States has not spoken on the subject of the use of the pocket radio transmitters, recording devices, and other technical equipment such as is prohibited by the Oregon statute. There being no preemption by the Federal Government, the State is free to legislate. The second question asked is very general and the answer would depend upon the particular facts involved and does not lend itself to generalities. ORS 141.720 provides in part as follows: "(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." Some drugs have a very definite deleterious effect upon the human body which may directly and immediately affect safety of human life whereas others do not have an immediate effect. This is a problem of classification which re quires judicial determination in each instance. For example, morphine, codeine, and heroin have been considered a poison. Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247; Gulkis v. New York Life Ins. Co., 148 N.Y.S. (2d) 153. ORS 453.090 classifies certain products as poison under certain conditions. On the other hand, marijuaną could not always be considered as a drug having an immediate effect on the safety of human life when taken solely by means of smoking and would not be considered a poison. It is therefore my opinion that the first question is answered in the affirmative and the answer to the second question is dependent upon the facts involved in the particular case and therefore cannot be answered at this time. Very truly yours, ROBERT Y. THORNTON, Attorney General. By ARTHUR G. HIGGS, Assistant. PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEAR MR. ERVIN: Your letter of April 13, addressed to Attorney General Alpern was referred to me the next day. Unfortunately the same became mixed with other papers and was lost. I note that you seek the General's views on the question of wiretapping and eavesdropping. I am enclosing herewith copies of our statutes' in Pennsylvania covering the subjects. In view of the action of our general assembly you can understand our reluctance to voice any other views. Very truly yours, FRANK P. LAWLEY, Jr., Deputy Attorney General. (Following is the Pennsylvania statute on eavesdropping :) No. 177 AN ACT Amending the act of June 24, 1939 (P.L. 872), entitled "An act to consolidate, amend, and revise the penal laws of the Commonwealth," making it unlawful to intentionally listen into deliberations of juries The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. The act of June 24, 1939 (P.L. 872), known as "The Penal Code," is amended by adding, after section 305, a new section to read: Section 305.1. Unlawfully Listening Into Deliberations of Jury.—Whoever, by any scheme or device, or in any manner, for any purpose, intentionally listens into, or intentionally attempts to listen into, the deliberations of any grand, petit, traverse, or special jury, shall be guilty of misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000) or undergo imprisonment not exceeding one year, or both. APPROVED The 20th day of June, A.D. 1957. GEORGE M. LEADER. RHODE ISLAND PROVIDENCE, April 26, 1961. DEAR SENATOR: This will acknowledge receipt of your letter of April 13, 1901, with reference to the proposed congressional action in the field of wiretapping. In Rhode Island we do have legislation dealing with the subject of wiretapping and it may be found in title 11, chapter 35, sections 12 and 13 of the General Laws of Rhode Island, 1956. This legislation provides in effect that it shall be a crime for anyone to intercept or attempt to intercept telegraphic or telephonic communications by mechanical or other methods except when done through mechanical equipment installed by a utility company which is subject to the jurisdiction of the public utilities administrator of this State. The wiretapping statute, prohibiting interception without permission of the parties, is reprinted at p. 86, "State Statutes on Wiretapping." The statute further provides that any evidence obtained in violation of the above shall be inadmissible in all the courts of this State. I think all reasonable persons can agree that there is a definite need for legislation which will authorize all enforcement officers to engage in wiretapping in certain cases and under certain conditions. I grant that it will not be a simple matter for anyone to arrive at the proper point between the protection of a citizen's right to privacy on the one hand, and the apprehension and prosecution of criminals on the other hand. I have read with interest some of the proposals dealing with this subject and I am favorably inclined toward legislation which would authorize wiretapping in certain serious criminal matters when approval for such action has been received from the appropriate court. The above procedure would at least insure that law enforcement authority would not indiscriminately invade the right of privacy of our citizens in socalled fishing expeditions. Trusting that the above may be of some assistance, I remain P.S. Respectfully yours, J. JOSEPH NUGENT, Attorney General. Our U.S. Supreme Court has made some pretty fine distinctions in some of its recent decisions. I think Senator Tom Dodd is on the right track. SOUTH DAKOTA J. J. NUGENT. PIERRE, June 27, 1961. DEAR MR. ERVIN: Your letter of June 21 with regard to your subcommittee study of wiretapping has been referred to me for reply with regard to which I will say that we have no State law covering the situation but we feel that it is extremely desirable to have some Federal legislation in order to enable us to move in on crime more efficiently, particularly to get around the recent decision of the U. S. Supreme Court on that score. Yours very truly, A. C. MILLER, Attorney General. TENNESSEE OFFICE OF THE ATTORNEY GENERAL, Nashville, Tenn., June 23, 1961. DEAR SENATOR ERVIN: I am in receipt of your letter of April 13, 1961, asking that I give you the statutes of Tennessee relating to eavesdropping and wiretapping. We have no such statutes in Tennessee. With kindest regards, I am Sincerely yours, GEORGE F. MCCANLESS, Attorney General. TEXAS THE ATTORNEY GENERAL OF TEXAS, DEAR SENATOR ERVIN: Your letter of April 13, 1961, addressed to attorney general of Texas Will Wilson, requesting a brief description of our Texas law covering wiretapping and eavesdropping, has been referred to the writer. The Texas statute covering this type of evidence is the broad statute covering all types of evidence, and makes the Texas rule the same as that in Federal courts. The statute, Article 727a: "Vernon's Annotated Code of Criminal Procedure of Texas," reads as follows: "No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the United States or of this State shall be admitted in evidence against the accused on the trial of any criminal case." As amended Acts, 1953, 53d Leg., p. 669, ch. 253, Sec. 1. [Emphasis added.] Trusting this is the information you desired, I am, Yours very truly, RILEY EUGENE FLETCHER, |