UTAH 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 state; 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, VERMONT A. PRATT KESLER, Deputy Attorney General. STATE OF VERMONT, OFFICE OF THE ATTORNEY GENERAL, 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 information 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, VIRGINIA THOMAS M. DEBEVOISE, Attorney General. COMMONWEALTH OF VIRGINIA, 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 WASHINGTON A. S. HARRISON, JR., THE STATE OF WASHINGTON, Dear Senator ERVIN: We are happy to supply you the following information in compliance with your letter of April 13, 1961. who shall inter RCW 9.61.010 (18) provides as follows: "Every person cept, 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. (2d) 265, 324 P. (2d) 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 (2d) 357, 218 P. (2d) 329 (1950), a case in which a defendant in a criminal proceeding objected to the introduction of a tape recording of a conversation of the defendant made by an officer hiding in a hotel room next to that of the defendant's, the Olmstead case was cited with approval for the proposition that the admission of the recording into evidence did not violate the defendant's privilege against selfincrimination and did not constitute an unlawful search or seizure. (This case establishes that evidence obtained by eavesdropping is admissible in this State.) In short, although there is no precise holding on this question, it would seem that in Washington the Olmstead case would be followed in a case involving the admissibility of evidence obtained through wiretapping in a State criminal proceeding. A comparison of the Federal wiretapping statute with the State statute bolsters this conclusion. The Federal provision is section 605 of the Communications Act of 1935. In Nardone v. United States, 302 U.S. 379, 82 L. Ed. 314 (1937), the U.S. Supreme Court placed stress on the words: “* * * no person *** shall * * divulge * * * to any person * * *”, and held that this prevented the admission of evidence obtained by wiretapping done by Federal officials in a Federal criminal proceeding. Thus, the Federal rule against admission of evidence obtained by wiretapping is not based on any constitutional provision, but is based on a Federal statute prohibiting divulgence of such evidence. In contrast, our statute simply outlaws the act of wiretapping itself, and does not, as does the Federal statute, proscribe divulgence of the results of the wiretapping. The only basis on which our statute could be construed to proscribe divulgence would be that given by Mr. Justice Holmes in his dissent in the Olmstead case, viz., violating the State statute is "dirty business" and should not be promoted by allowing the admission of evidence obtained by such unsavory tactics. As pointed out above, the majority in the Olmstead case rejected this argument outright. However, the Federal statute is still a problem; or at least it was until a recent U.S. Supreme Court on February 27, 1961. By its terms the statute would, of course, prohibit State officials from using evidence obtained by wiretapping. In Pugach v. Dollinger, the U.S. Supreme Court affirmed, as you know, a denial by the second circuit of an injunction against the admission in a New York State court of evidence obtained by a State officer through wiretapping. Now whether, after this decision, section 605 will really hamper our State lawenforcement officials is not clear. Very truly yours, JOHN J. O'CONNELL, Attorney General. HERBERT H. FULLER, Chief Assistant Attorney General. WISCONSIN THE STATE OF WISCONSIN, OFFICE OF ATTORNEY GENERAL, Dear Senator: This is in reply to your letter of April 13 inquiring about the law of Wisconsin so far as it affects wiretapping and eavesdropping. There is at the present time no statutory law in this State dealing with these subjects, but the present legislature has before it bills which would (1) prohibit wiretapping, (2) make wiretapping evidence inadmissible in court, and (3) prohibit wiretapping and eavesdropping by mechanical or electrical means unless authorized by warrant, somewhat similar to the law of New York. Which of these bills will pass, or whether any of them will pass, is uncertain. Wisconsin follows the Federal rule excluding evidence obtained in violation of constitutional right, but admits evidence obtained illegally but not in violation of the Constitution. While we have had no court decisions relating to wiretapping, the application of the foregoing rules leads me to the opinion that our Supreme Court would rule wiretapping evidence admissible at the present time. In my opinion, controlled wiretapping under court order, similar to a search warrant granted on the application of a district attorney or the attorney general, is a desirable and useful tool in the enforcement of the criminal law. I would favor legislation amending the Federal Communications Act so as to authorize such procedure in the State courts. I do not mean to imply that the Federal courts should not also have such powers, but that is a subject which does not concern me as a State attorney general. Thank you for giving me this opportunity to comment. Sincerely yours, JOHN W. REYNOLDS, Attorney General. WYOMING STATE OF WYOMING, OFFICE OF THE ATTORNEY GENERAL, Therein DEAR SIR: Receipt of your letter of June 20, 1961, is acknowledged. you inquire concerning a summary of Wyoming law on wiretapping and eavesdropping and with regard thereto, you request my opinion as to the desirability of Federal legislation in this area. As of this date, the supreme court of the State of Wyoming has yet to rule on the admissibility of evidence procured through or resulting from wiretapping or eavesdropping. As you are undoubtedly aware, the State of Wyoming follows the so-called Federal exclusionary rule evidence to the extent that evidence illegally obtained is held to be nonadmissible. Whether or not then such evidence so procured will be held admissible in the courts of this State seems dependent upon whether such procurement is deemed violative of article 1 of sections 4 and 11 of the Wyoming constitution which are the counterparts to the fourth and fifth amendments of the Federal Constitution or whether the disclosure of such evidence is precluded by the single Wyoming statute pertaining to wiretapping. Should the Wyoming supreme court construe the State unlawful search and seizure provision as the U.S. Supreme Court did the Federal provision (see Olmstead v. United States (1928) 277 U.S. 438, 72 L. Ed. 944) then, of course, it will be held that the mere act of wiretapping or eavesdropping without an actual invasion of property will not be regarded as an unlawful search and seizure within the purview of such provisions as to render such procurement illegal. The State of Wyoming pursuant to section 37-259, Wyoming statutes, 1957, has attempted to prohibit wiretapping and the divulgence of information received therefrom. That section provides as follows: "Whoever shall wilfully and maliciously cut, break, tap, or make any connection with, or read, or copy by use of telegraph or telephone instruments, or otherwise, in any unauthorized manner, any, message, either social or business, sporting, commercial, or other news reports, from any telegraph or telephone line, wire or cable, so unlawfully cut or tapped in this state; or make unauthorized use of the same, or who shall wilfully and maliciously prevent, obstruct or delay, by any means or contrivance whatsoever, the sending, conveyance or delivery, in this state, of any authorized communication, sporting, commercial or other news reports, by or through any telegraph or telephone line, cable, or wire, under the control of any telegraph or telephone company doing business in this state; or who shall wilfully and maliciously aid, agree with, employ or conspire with any other person or persons to do any of the aforementioned unlawful acts, or any employe of any telegraph or telephone company doing business in this state, who shall wilfully and maliciously communicate, report or deliver to any unauthorized person any message or copy thereof, received by him in the line of his employment by such company, shall be deemed guilty of a felony, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment in the penitentiary for not more than five years, or both." This section was adopted in 1893 and has remained unchanged to date. What purpose the statute was intended to serve is unclear. It is possible that it was intended only to prevent damage to or interference with telephone and telegraph lines. The specific prohibition against the unauthorized divulgence of information received appears to infer that it was intended as having broader application. The prohibitions therein contained pertain only to the unauthorized tanning of lines and the unauthorized divulgence of information received. This presents the question of what tapping under the circumstances might be deemed to be authorized. Further, the statute is not specific as to what con stitutes tapping and, therefore, leaves unclear the propriety of the use of electronic devices in tapping where no breaking or cutting is involved. The extent of the prohibitionary factors of the statute must, therefore, await construction by the high court of this State unless sooner replaced by a more explicit legislation. Now with regard to the desirability of Federal legislation in this area. By this I assume you contemplate an amendment of section 605 of the Federal Communications Act (48 Stat. 1103, 47 U.S.C., sec. 605) to the extent that it would operate as an exclusionary rule applicable to the State courts of evidence procured by wiretapping, and this particularly in light of the Schwartz case (1952), 344 U.S. 199, 97 L. Ed. 1231, wherein it was held that the exclusionary provisions of section 605 was not applicable to State courts. Realizing that Federal legislation operating so as to exclude the introduction of evidence in State courts procured by wiretapping might be authorized by the commerce clause as being in substantial connection with the regulation thereof, it is my feeling that such exclusionary rules of evidence ought to be left to the jurisdiction of the States. The need of such legislation and the extent to which privacy should be interfered with for the sake of law enforcement can, I feel, best be determined by the State itself. Eavesdropping unrelated to wiretapping would appear to be outside any Federal legislative authorization and could, therefore, be equally well handled by the State if and when the need of such legislation should arise. To the extent that section 605 has been interpreted as an exclusionary rule of evidence in Federal courts only and this whether introduced by Federal or State officers, I feel that an amendment thereof excluding the penalty provisions to State officers, tapping or divulging information received from such tapping, in State courts would be desirable. As the situation now stands, such evidence, unless specifically precluded by the State is admissible in the State court, yet the officials procuring and divulging such evidence, even though specifically authorized by the State to do so, subject themselves to the penalty provisions of the Federal statute. (See Benanti v. United States (1957) 355 U.S. 96, 2 L. Ed. 126.) Such an amendment would leave the State free to regulate wiretapping and the use of information procured to such extent as it may feel it in the best interest of the State. Respectfully submitted. NORMAN B. GRAY, Attorney General. |