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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 Gov. ernment-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 ac cused 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. Clos8on, 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, (0.A. La. 1959) 266 F. (20) 955; Benanti v. United States, (1957) 355 U.S. 96, 2 L. Ed. (20) 120; Elkins v. United States, (1960) 364 U.S. 206, 4 L. Ed. (22) 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 imme diately 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 wbich 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.9. 247; Gulkis v. New York Life Ins. Co., 148 N.Y.S. (20) 153. ORS 453.090 classifies certain products as poison under certain conditions. On the other hand, marijuana 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, A88istant.
Harrisburg, May 18, 1961. 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.
PROVIDENCE, April 26, 1961. DEAB SENATOR: This will acknowledge receipt of your letter of April 13, 1901, with reference to the proposed congre ional action in the field of wire tapping.
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, probibiting interception without permission of the parties, 18 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 Respectfully yours,
J. JOSEPH NUGENT, Attorney Generai. P.S.-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.
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.
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.
THE ATTORNEY GENERAL OF TEXAS,
Austin, Tex., April 20, 1961. 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,
Assistant Attorney General.
SALT LAKE CITY, April 19, 1961. DEAR MR. ERVIN: In answer to your letter of April 13, 1961, I wish to advise that Utah does have a statute on wiretapping. The same is known as Utah Code Annotated 1953, 76-48-11, reading as follows:
"Every person who wilfully and fraudulently, or clandestinely, taps or makes any unauthorized connection by any means whatever, with any telegraph or telephone wire, line, cable or instrument under the control of any telegraph or telephone company within this statė; or wilfully and fraudulently, or clandestinely, reads or attempts to read, or learns the contents or meaning of any message, report or communication, by means of any machine, instrument or contrivance, or in any unauthorized manner, while such message, report or communication is in transit or passing over any telegraph or telephone wire, line or cable, or is being sent from or received at any place within this state; or uses, or attempts to use, in any manner or for any purpose, or communicates in any way, any information so obtained; or aids, agrees with, employes, or conspires with, any person to unlawfully do, or permit, or cause to be done any of the acts or things hereinabove mentioned is punishable;—as provided in section 76-48-10."
Contrary to Federal procedure, the laws of the State of Utah permit the introduction of competent evidence no matter how it is obtained. As a former U.S. attorney for the district of Utah, I often had occasion to decline prosecutions on narcotic violations in favor of State prosecutions because Federal procedure would not permit the introduction of the evidence available because of the methods used in obtaining same, where the same evidence could be used in the prosecution had in Utah State courts.
I am certainly in favor of preserving a citizen's right to privacy and rights against unlawful searches and seizures. However, it seems to me that if certain types of crimes are to be controlled or eliminated, Federal law must be liberalized to permit the introduction of certain types of evidence now excluded. I agree that there should be laws against unauthorized wiretapping and eavesdropping but when the same is done by authorized personnel under authorized situations, it is my opinion that the information obtained therefrom should be admissible in a proper prosecution.
Trusting this information may be of some benefit in your coming conferences, I remain Yours very truly,
A. PRATT KESLER, Deputy Attorney General.
STATE OF VERMONT,
Montpelier, April 27, 1961. DEAR MR. ERVIN: In reply to your letter of April 13, 1961, let me first state that Vermont does not have any statute dealing with wiretapping or eavesdropping, nor is the present session of the legislature considering the enactment of any such legislation.
We have, of course, encountered problems because of this during the course of criminal investigations when it was felt a wiretap would have (1) expedited the acquisition of some needed information, (2) obtained information not otherwise available, or (3) kept the investigators abreast of the activities and intentions of the suspects.
Because of the Federal law, all of the telephone companies doing business in this State have refused to allow any wiretapping by our police agencies. In addition, I have instructed our law enforcement agencies that they should not wiretap because of the Federal law.
I know of no instance where my instructions have been disobeyed. I feel sure, however, that because of this restriction, certain investigations have been handicapped.
I am in favor of Federal legislation permitting the use of wiretapping by regularly constituted State law enforcement agencies in the course of criminal investigations providing that they are authorized so to do by State statute and further providing the agency can establish probable cause and reasonable necessity for employing such a device before a court of competent jurisdiction.
I would also be in favor of a severe penalty for any person divulging any infor. mation so gained, except in furtherance of the criminal case.
In Vermont, since illegally obtained evidence may be received in court, I believe wiretap and eavesdropping evidence is presently admissible. Because of my instructions which are based on the Federal statute, the matter has never arisen.
Hoping that this is the information you are seeking and assuring you of my continued cooperation and pleasure at being consulted, I am, Sincerely yours,
THOMAS M. DEBEVOISE,
COMMONWEALTH OF VIRGINIA,
Richmond, April 28, 1961. MY DEAR SENATOR ERVIN: Thank you for the opportunity to express my views relating to the investigation being undertaken by your subcommittee regarding wiretapping and eavesdropping.
The Commonwealth of Virginia has not enacted any criminal or regulatory measures in this field. To our knowledge, there has never been any serious problem in this State. With kind regards, I am Sincerely yours,
A. S. HARRISON, JR.,
THE STATE OF WASHINGTON,
Olympia, May 11, 1961. DEAR SENATOR ERVIN: We are happy to supply you the following information in compliance with your letter of April 13, 1961.
RCW 9.61.010 (18) provides as follows: "Every person who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line * * * shall be guilty of a misdemeanor."
The question then arises: Does this provision prevent the introduction of evidence obtained by wiretapping? In the leading case of Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944 (1927), the U.S. Supreme Court, through Taft, C.J., held that this statute did not prevent the introduction of evidence obtained through wiretapping in a Federal court. But what about the introduction of such evidence in a state court? There have been no Washington decisions on this question, but such evidence would probably be admissible on the basis of the Olmstead case itself.
In the Olmstead case it was held that under the common law illegality in the obtaining of evidence does not, of itself prevent the introduction of such evidence in a criminal proceeding. It is true that under the Federal exclusionary rule" developed in the case of Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652 (1913), the evidence is inadmissible if it is obtained in violation of a constitutional right. In the Olmstead case, however, it was found that the Weeks case was inapplicable because wiretapping did not involve a violation of either the constitutional provision relating to self-incrimination or the constitutional provision relating to unlawful search and seizure.
Although the exclusionary rule is followed in the State of Washington, see State v. Gibbons, 118 Wash. 171, 203 Pac, 390 (1922) and State v. Greco, 52 Wn. (20) 265, 324 P. (20) 1086 (1958), I see no reason why the common law rule set forth in the Olmstead case would not govern in this State; that is, the exclusionary rule should be limited, as it was in the Olmstead case, to cases involving a violation of a constitutional right. And all of the Washington cases applying the exclusionary rule seem to involve a violation of a constitutional right.
It might be noted that in state v. Slater, 36 Wn (20) 357, 218 P. (20) 329 (1950), a case in which a defendant in a criminal proceeding objected to the