Matter of Interception of Tel. Communications

• Decision Date: 10 January 1955
• Citation: 207 Misc. 69
• Parties: In the Matter of The Interception of Telephone Communications of Anonymous.
• Court: New York Supreme Court

207 Misc. 69

In the Matter of The Interception of Telephone Communications of Anonymous.

January 10, 1955.

No appearances of counsel.

HOFSTADTER, J.

Application is made to me for an order permitting the interception of telephone communications over a line specified in the proposed order submitted for my signature. The purpose of the requested interception as stated in the papers in support of the application is to secure evidence of the commission of the crime of book-making. The application now made follows the general pattern of like applications heretofore made to me, which also, in the main, had as their objective the detection of gambling in some form. Though I have in the past signed such orders, I have done so with much misgiving. Prompted by this misgiving, I devised certain expedients as a curb on excessive or unwarranted resort to such orders.

Some years ago I instituted the requirement that every application to me for an interception order be supported by the indorsement of an officer of rank in the police department and that written reports of the results obtained from any interception order be thereafter submitted to me. Even with these restrictions, I have granted the orders with reluctance. The reports received by me instead of allaying my anxiety, merely deepened it. These showed some arrests and fewer convictions and then rarely, if ever, for a heinous offense. The sense of uneasiness born of this situation as well as the current discussions of wire tapping has led me to give the problem further study.

The application is made under a provision of the Constitution of this State and a statute implementing it. After intense and prolonged debate the constitutional convention of 1938 adopted the following provision, now part of section 12 of article I of the Constitution: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

The statute is section 813-a of the Code of Criminal Procedure, effective in 1942. So far as here material it reads: "An ex parte order for the interception of telegraphic or telephonic communications may be issued by any justice of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained and identifying the particular telephone line or means of communication and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce for the purpose of satisfying himself of the existence of reasonable grounds for the granting of such application." I am not confronted with the use as evidence of the fruits of wire tapping; the sole question I am concerned with is whether the wire tapping itself should be allowed.

A review of the pertinent decisions shows that in New York there is no limitation on the use of wire-tap evidence. In accordance with the weight of authority in this country, the New York rule has consistently been that evidence is admissible, however tainted its source, and though obtained through violation of law. (People v. De Fore, 242 N.Y. 13.) Nor has the prohibition of unreasonable search and seizure introduced into the State Constitution in 1938 (art. I, § 12) — before 1938 the prohibition was to be found only in the Civil Rights Law (§ 8) — altered this rule. An article seized in defiance of the constitutional provision may still be received in evidence. (People v. Richter's Jewelers, 291 N.Y. 161.)

Unauthorized telephone interception is a crime in this State. (Penal Law, §§ 552, 1423, subd. 6.) Yet, unlawful wire taps may be received in evidence. (Matter of Davis, 252 App. Div. 591, 598; People v. McDonald, 177 App. Div. 806, 809-810.) Even since the adoption of the 1938 Constitution, it has been held that wire-tap evidence is admissible, though the order authorizing the interception is void or irregular. (People v. Katz, 201 Misc. 414.)

The decisions of the Federal courts in no way impair the authoritative effect of the foregoing rulings. Not alone do the Fourth and Fifth Amendments to the United States Constitution, which proscribe unreasonable search and seizure and self-incrimination, not operate on the States (Twining v. New Jersey, 211 U. S. 78, 92-93), but the Supreme Court has held that the tapping of telephone wires and the use of the resultant wire-tap evidence do not violate either of these amendments. (Olmstead v. United States, 277 U. S. 438.) The later cases in the Supreme Court, in some of which intercepted telephone conversations and evidence derived from them have been excluded in the Federal courts, deal mainly with the interpretation of section 605 of the Federal Communications Act. (U. S. Code, tit. 47; Nardone v. United States, 302 U. S. 379; Nardone v. United States, 308 U. S. 338; Weiss v. United States, 308 U. S. 321; Goldstein v. United States, 316 U. S. 114; Goldman v. United States, 316 U. S. 129.)

Despite the ruling in Weiss v. United States (308 U. S. 321, supra), that section 605 of the Communications Act extends to intrastate communications, our courts have uniformly held that the section does not forbid the reception in evidence by them of the fruits of wire taps obtained in compliance with section 813-a of the Code of Criminal Procedure. (Matter of Harlem Check Cashing Corp. v. Bell, 296 N.Y. 15; People v. Stemmer, 298 N.Y. 728, affd. sub nom. Stemmer v. New York, without opinion by evenly divided court, 336 U. S. 963, rehearing denied, 337 U. S. 921; People v. Feld, 305 N.Y. 322, 329-330; see, also, Black v. Impellitteri, 201 Misc. 371, affd. 281 App. Div. 671, appeal dismissed 305 N.Y. 724.) Any inconclusive effect which might perhaps be attributed to the Supreme Court affirmance of the Stemmer decision by an evenly divided court, seems to have become academic. For, in Schwartz v. Texas (344 U. S. 199, 203), the court held that interceptions obtained in violation of section 605 of the Federal Communications Act may nevertheless be received in evidence in a State court. In the court's opinion, the Federal act was not intended to impose a rule of evidence on the State courts.

It thus becomes obvious that the fruits of telephone interceptions made pursuant to an order under section 813-a of the Code of Criminal Procedure can successfully withstand legal attack and may be received in evidence in the courts of this State without let or hindrance.

The very immunity so given to the wire taps is alarming. The question before me now, however, is not the use which may be made of the fruits of an accomplished interception, but whether the interception itself should be authorized in the first place. Whatever the purpose of the interception, the stark fact remains that it is an intrusion on the right of privacy. Justice HOLMES in his dissent in the Olmstead case referred to wire tapping as "dirty business" (277 U. S. 438, 470). Justice ROBERTS in the first Nardone case called it "inconsistent with ethical standards and destructive of personal liberty" (302 U. S. 379, 383).

Nor can we forget the words of Justice BRANDEIS in his memorable dissent in the Olmstead case: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." (277 U. S. 438, 478.) This expression is an accurate appraisal of human values and of the things men hold dear in life. These are concepts not to be brushed aside when judicial action is invoked by which a realm, ordinarily inviolable, is exposed to official invasion and surveillance.

Though I may deplore the fact that the views of Justices HOLMES and BRANDEIS in the Olmstead case did not prevail in the...