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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 wire tapping. In Pugach v. Dollinger, the U.S. Supreme Court afirmed, 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
HERBERT H. FULLER, Chief Assistant Attorney General.
THE STATE OF WISCONSIN,
Madison, May 8, 1961, 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 gen. eral, 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.
STATE OF WYOMING,
Cheyenne, July 7, 1961. DEAR SIR: Receipt of your letter of June 20, 1961, is acknowledged. Therein 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 Con. stitution 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 emplove 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 ifty 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 tele graph 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 unanthorized divulgence of information receivert. This nresents the question of what tapping under the circumstances might be deemed to be anthorized. Further, the statute is not specific as to what constitutes 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 wire tapping 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 wire tapping 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.