If we are to slough these cases off and not prosecute them because we can't secure the necessary evidence, I think it is going to put a dent in the moral fabric of our community.

We have cases involving extortion, robbery, and so on. The situation is utterly intolerable and impossible and as Professor Everett said, the time has come and is long overdue for a decision one way or the other. When we discuss wiretapping, there are those who seek to group together in one swoop legal wiretaps and illegal wiretaps. That is the pitfall that Sam Dash fell into when he made the wild claim that there are between 16,000 and 25,000 wiretaps in the city of New York alone.

When we hear that kind of talk I think every decent person becomes morally outraged. They say this is indeed a dirty business. They overlook the fact that when Mr. Justice Holmes made that reference he was not saying that wiretapping was a dirty business but that wiretapping by Federal officers, in violation of law, was a dirty business.

I think all of us, whether for legal regulated wiretapping or not, believe strongly that illegal wiretapping is a dirty business and should be stopped.

We in the State of New York take such a dim look at it we have made it for the past 20 years, a felony. We support any efforts by the Congress to make it a felony in the Federal system.

We have a situation here where we are concerned on the one side with the rights of individuals as opposed to the rights of society. I think there is danger in any choice, but the test should be this. The protection for individual rights cannot be disproportionate to the loss of protection for our society.

In the State of New York we have struck a happy medium where we have set up now for 23 years a system under judicial scrutiny where competent, elected or appointed responsible law officers can procure an order upon application showing reasonable grounds to exist. Senator KEATING. May I inquire?

Mr. O'CONNOR. Yes.

Senator KEATING. One point was raised by the previous witness of going to a court of record. Under the New York statute, are you required to go to the New York court of record?

Mr. O'CONNOR. Yes, we are and I think it is a good, reasonable requirement. It should be put into the lap of a very responsible court and we would be very much in favor of it.

I think it is important to place it on record. The result of a survey made by the New York State District Attorneys' Association.

Now our survey indicates in the State of New York there is annually not in excess of 500 valid, legal wiretap orders a year.

The reason I bring this out and why I think it is important in the light of the extraordinary statement that there exists in the city of New York between 16,000 and 25,000 wiretaps per year.

Senator KEATING. But you have to put that in perspective. When the question was put to Mr. Dash, he said that was based on his conversations with a dozen or two dozen people.

Mr. O'CONNOR. Yes.

Senator KEATING. Several of whom were detectives who had been thrown off the force for illegal wiretapping.

Mr. O'CONNOR. Yes. Senator KEATING. And obviously, they were trying to make an excuse for their own misdeeds by saying, "Oh well, it is general. Everybody does it so I wasn't doing anything improper."

Now I don't think any weight can be given to his statement. He had nothing more to back it up, than Justice Douglas did at hearings where he stated that 50,00, wiretaps were going on in New York per

year.

Mr. O'CONNOR. Yes, I think the figure was 58,000.

Senator KEATING. Yes.

Mr. O'CONNER. I want to nail that down, Senator, by saying this. Taking the median figure that Dash uses which is 16,000 to 25,000, incidentally, a most unscientific variance. We have 500 legal wiretaps in the State of New York. I have one of the largest staffs in the State of New York. I have over 150. I have a large staff of assistants; a large staff of New York City detectives and large staff of county detectives. I don't think I have more than three men in my entire staff who are capable of doing a wiretap. I don't think anyone could do a wiretap without going first to the telephone company and tracing down the pairs which is quite involved. To me it is preposterous that anything remotely like the figure Dash uses could exist. More than that, we frequently get complaints from civilians either by anonymous letters or by 'phone calls or letters signed, complaining of police corruption, complaining of instances where the police have turned their head when they should be looking, where they have accepted graft or done this or done that.

We have never received a complaint from a civilian that private rights have been invaded by illegal wiretapping. If there was anything like the number of illegal wiretaps banded around in this room. yesterday, we certainly would have received many, many complaints. Senator KEATING. You have never had a complaint?

Mr. O'CONNOR. No.

Senator KEATING. And it is a felony under New York State law? Mr. O'CONNOR. Yes, it is a felony I would like to place on record that we have had in the State of New York our system of supervised wiretaps for 23 years.

In that connection I would like to read a report of the New York State Bar Association Committee on Civil Rights for 1956. I don't know whether this has been placed in the record before or not. I quote:

We want to make clear that we do not assert that there has been any widespread illegal wiretapping activity or even resort to lawful use of wiretapping by public officials. We are fully aware of the problems which they have. Such officials in this State are fine, public servants, zealous in the discharge of their duty.

Here is a 1957 report of the New York State Joint Legislative Committee and they said:

We know of no instance in which an illegal wiretap evidence has been offered by a prosecutor since enforcement of wiretapping was regularized in 1938.

I have tried to analyze the opposition to a thing which is reasonable and proper and essential to law enforcement in the State of New York and throughout the United States.

Our opponents say that even with judicial supervision of wiretapping, the rights of individuals can be violated and I think it is so to a certain degree. They give, for example, the search warrant. They say a search warrant can be limited. They say the place to be searched can be particularly described and that what can be looked for can be limited but when you give a wiretap order and when a wire is tapped, that anyone who speaks on that telephone, whether it be the suspect or not, all conversation can be heard and can be taken down and certainly there is a degree of truth to that position.

I have listened on tapped telephones myself with my assistants and the police. We have listened to the idle ramblings of a hoodlum's wife or his moll or listened to the inane talk of a young daughter of a gangster we are after and it is the most boring, disinteresting thing I have ever listened to in my life. It goes in one ear and out the other. But the next hour or the next day we have on the same wiretap listened to the suspect tell of plans for a major crime of violence. Certainly, there might come to one of the innocent persons involved some kind of undefinable harm. These people who oppose this don't say it has happened. There have been no complaints in the State of New York. They don't say it is happening now, but it is a remote possibility that it might happen in the future.

If we take any aspect of the criminal law, there exists the possibility that some injury may come to an innocent person. Take the very simple thing of the law of arrest. In New York State, and I presume it is true in other jurisdictions, a police officer may arrest a person walking down the street who may be completely innocent, provided a felony has, in fact, taken place and provided further that the police officer has reasonable grounds for believing this person committed the crime and he arrests him.

Actually, the number of wrong arrests are few and far between. But no intelligent person claims we have to abolish the right of arrest because it is possible the wrong person might be arrested.

Now we have the question of the search warrant itself. Here is our proudest boast in Anglo-Saxon law, that a man's home is his castle, yet, the door can be kicked down and the home searched from attic to cellar providing the arresting officer, the searching officer, has filed an affidavit that he has reasonable grounds for believing that the fruits of crime exist in those premises.

It is the same of wiretapping in New York State where the procuring officer must be a responsible officer in the police department and certifies under oath that he has reasonable grounds for believing that a crime is about to take place and an order for wiretap is issued.

I am not too impressed by the fact that there is a possibility that an innocent person may be hurt. That exists in every facet of our criminal procedures. We must weigh it all in the light of the common good.

I have about concluded what I have to say with regard to the general aspects of wiretapping, particularly as it applies to the State of New York.

I will say this much again, we have an intolerable situation in which we need your assistance badly. We are at the point now where we will accept any legislation that is passed that will relieve the situation as it now exists.

We feel very strongly that S. 1086 is the bill that most directly goes to the point. It is the one we think is least controversial. We feel rather strongly that the crimes to be covered by any bill, should be left to the individual States to describe and we fully and wholeheartedly support S. 1086.

Thank you very much, Mr. Chairman.

Senator ERVIN. The committee is very grateful to you for taking the time and trouble to give us the benefit of your experience in this field and I feel that I should say I share your opinion that this matter, as far as enforcement is concerned, should be referred to the various States because they each have an entirely different situation.

Mr. O'CONNOR. I think so.

Senator KEATING. I would be glad to tell you I share that view. Mr. O'CONNOR. I know you do.

Senator KEATING. And since this is in the bill I am happy to find the chairman and I are in accord on this question.

Senator ERVIN. Does counsel have any questions?

Mr. CREECH. Mr. O'Connor, I would like to ask in the event you are not able to use wiretapping facilities, would you be able to adduce any other evidence sufficient for conviction in many of these cases?

Mr. O'CONNOR. We definitely could not.

Now I have heard the statement made, let us work harder and longer. To me it doesn't make sense. There are certain crimes that without wiretapping we will not be able to discover any evidence sufficient to carry on our investigation.

Mr. CREECH. Sir, would you favor then the circumscribing of any wiretapping legislation to those certain crimes?

Mr. O'CONNOR. We would feel that it should be left to the States. We would have no objection, I think, broadly and generally if it were limited to felonies. That is a reasonable thing.

Senator KEATING. I am a little bit surprised to hear that because you are more experienced than I am that these gambling and prostitution charges that I understand were the subject of a good many wiretap orders are not felonies.

Mr. O'CONNOR. Generally, they are not.

Senator KEATING. I had the impression from other witnesses that evidence of more serious crimes frequently have been found in a tap on a gambler's or prostitute's phone on some other minor crime.

Mr. O'CONNOR. I think that is definitely so and that is why I say we would prefer not to have any restriction placed there, but if it is necessary to get legislation through to limit wiretapping to felonies, we would accept it.

Senator KEATING. I think at least the two of us that are listening to you are quite impressed with the merits of leaving it to the States completely. But I do want you to clarify that as much as possible.

I think Mr. Silver gave us the impression or I gained the impression from his testimony that he would be rather strenuously opposed to limiting this to any specific crimes or to just the felonies on the basis that evidence of serious crime has often been obtained when they were tapping on gambling and prostitution.

Maybe Kings County is the more crime ridden county.

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Mr. O'CONNOR. Well, Senator, I think maybe I have created the wrong impression. I do not want to indicate any divergence of opinion with Ed Silver because we think alike.

I am proceeding on the theory that a half a loaf is better than none. On that basis, I would accept it but personally, we would prefer not to have that restriction placed on it.

Senator KEATING. Have you, in your experience, encountered cases where you did get a wiretap order in gambling or prostitution cases and found evidence of more serious crime?

Mr. O'CONNOR. Yes, indeed, and particularly in gambling.

Senator KEATING. In other words, the murder boys and racketeer boys often had their principal activity in maybe gambling but they may be engaged in more serious offenses.

Mr. O'CONNOR. Very definitely.

Mr. CREECH. Mr. O'Connor, in your opinion, sir, what is the length of time necessary or desirable for maintaining a tap on any particular telephone?

Mr. O'CONNOR. It is awfully hard to say and I don't think that 'really it is wise to limit it at all.

Now I see here that you have 90 days, 60 days and 30 days. Certainly, anything less than 60 days I think is impractical. There are investigations that go on for months, and I think so much of this has to be left to the good faith and honesty and integrity of the officials involved and the court that supervises the order. I don't think any judge in any court is going to continually sign orders over a long period of time unless upon each application for renewal there are shown facts to indicate the need for it.

On the contrary, if we are on the verge of something big after 60 or 90 days-to then say you can tap no longer is not practicable. It is a matter impossible to describe accurately and definitely. It must be left to the discretion of the judge who signs the order.

Mr. CREECH. I wonder if you would comment on your experience with regard to prosecutions for illegal wiretapping.

Mr. O'CONNOR. Well, in the city of New York, and I am talking now from memory and it is indeed fallible and getting more fallible as the years go on, I don't know that there have been more than two or three complaints in the entire city of New York concerning illegal wiretapping. There have been none in my county at all.

Senator KEATING. Either by public officials or anyone else?
Mr. O'CONNOR. By anyone. This thing is not widespread.

With all due respect to those who make these accusations, it is too involved a thing. You must take into account someone in the telephone company, and there are only limited employees in the telephone company that can do it.

Now we had the one case in New York County where a union had done some wiretapping in a competitor's meetinghall, the Transit Authority I believe. It doesn't happen nearly as frequently as indicated. We have had no complaints in the county of Queens.

Mr. CREECH. Mr. Silver told us yesterday there may be some policemen that would indulge in illegal wiretapping but he preferred to believe it was not widespread and you took great exception to Mr. Dash's figures.

Now he told us he only applied for 55 wiretaps.