Telephone Communications, In re

• Decision Date: 02 January 1958
• Parties: Matter of Interception of TELEPHONE COMMUNICATIONS.
• Court: New York Supreme Court

Page 84

170 N.Y.S.2d 84

9 Misc.2d 121

Matter of Interception of TELEPHONE COMMUNICATIONS.

Supreme Court, Special Term, New York County, Part II.

Jan. 2, 1958.

SAMUEL H. HOFSTADTER, Justice.

Under the decision of the United States Supreme Court in Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, no wiretap order pursuant to Section 813-a of the Code of Criminal Procedure ¹ may lawfully be issued.

As we have no system of advisory opinions in this state and, according to our practice, applications for wiretaps are made at Special Term, Part II, this memorandum will apprise enforcement and prosecuting officers that while I preside at Special Term, Part II, during this month, no application for a wiretap order will be honored.

Under the decision in Benanti, orders authorizing interceptions are contrary to controlling Federal law. Its authority requires me, therefore, to deny any application for such an order. For all wiretaps, whether 'authorized' or not, in this State are now illegal. In Matter of Interception of Telephone Communications of Anonymous, 207 Misc. 69, 136 N.Y.S.2d 612, I denied an application in the exercise of discretion; any further application would have to be denied because of lack of lawful competence.

There may be those who differ from this interpretation of the Supreme Court decision. In that event, the result of these proceedings may be the salutary one that the view expressed here can be challenged and become the subject of authoritative determination by our state appellate courts; subject, of course, to any ultimate review in the United States Supreme Court.

Recent decisions of the Supreme Court of the United States have adumbrated the expectancy that legal safeguards will provide the needed bridge between the moral and legal law. Time and again, the gap between moral and legal law has been spanned--sometimes by the slow and painful process of the innovation of time, and sometimes by a courageous leap into the future. Such an advance has been effected by the Benanti case. In clear accents, it tolls the knell of all wiretapping, including so-called 'legal' wiretapping, in our State. Following the holding in Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298, it flatly proclaims, in language which no one can mistake, that an interception of a telephone communication, even by a State law enforcement officer acting under an order issued pursuant to Section 813-a, constitutes a violation of Section 605 of the Federal Communications Act (47 U.S. Code, § 605, 47 U.S.C.A. § 605). Its expressions are compelling--it is explicit that the warrant of the order does not make the wiretap legal; it is implicit that the order itself is unlawful!

New York police officers, suspecting one Benanti of dealing in narcotics, obtained a wiretap order from the court. As a result of the wiretap he was arrested. It was found that he was not a dealer in narcotics but a bootlegger of whiskey. He was turned over to Federal agents for prosecution. On his trial the state officers were permitted to testify to the wiretapped conversations. On appeal from his conviction the United States Court of Appeals decided, as a matter of first impression, that where there is no participation by a Federal officer the Communications Act does not bar, in a Federal Court, the admissibility of evidence obtained by State officers by wiretaps in violation of the Act.

The Supreme Court disagreed with this conclusion. It held unanimously that wiretapping by New York State law enforcement officers, although authorized by the State Constitution and statutes, violated Federal law and the evidence was inadmissible. The court found no exemption for state officials in Section 605 of the Federal Communications Act of 1934, which reads: 'No person not being authorized by the sender shall intercept and communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication * * *'.

Chief Justice Warren said: 'The Constitution and statutes of the State of New York provide that an ex parte order authorizing a wiretap may be issued by judges of a certain rank * * * Respondent does not urge that, constitutionally speaking, Congress is without power to forbid such wiretapping even in the face of a conflicting state law. * * * Rather the argument is that Congress has not exercised this power and that Section 605, being general in its terms, should not be deemed to operate to prevent a State from authorizing wiretapping in the exercise of its legitimate police functions. However, we read the Federal Communications Act, and Section 605, in particular, to the contrary. The Federal Communications Act is a comprehensive scheme for the regulation of interstate communication. In order to safeguard those interests protected under Section 605, that portion of the state pertinent to this case applies both to intrastate and to interstate communications. * * * In light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy. Cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581.' (United States v. Benanti, 355 U.S. 96, 103-106, 78 S.Ct. 155, 159, 2 L.Ed.2d 126).

In the Benanti case, the United States Court of Appeals for this Circuit had said: 'Despite the warrant issued by the New York State court pursuant to New York law, we have no alternative other than to hold that by tapping the wires, intercepting the communication made by appellant and divulging at the trial what they had overheard, the New York police officers violated the federal statute. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Id., 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. Section 605 of 47 U.S.C.A. is too explicit to warrant any other inference, and the Weiss case made its terms applicable to intrastate communications.' 2 Cir., 244 F.2d 389, 391.

These views of the Court of Appeals regarding the illegality of the 'authorized' wiretap were confirmed by the Supreme Court, but its ruling of the admissibility of the fruits of the tap was overruled, the Supreme Court basing its decision on the intent of the Federal Communications Act.

After its first pronouncement, the United States Court of Appeals, several months later, reiterated its views on the illegality of intrastate interceptions, saying: 'Appellant next contends that the act does not apply to the calls he intercepted, because they were intrastate in character rather than interstate or foreign. This contention is completely refuted by Weiss v. United States, 308 U.S. 321, at page 327, 60 S.Ct. 269, at page 271, 84 L.Ed. 298, wherein the court said: '* * * Plainly the interdiction thus pronounced is not limited to interstate and foreign communications. And, as Congress has power, when necessary for the protection of interstate commerce, to regulate intrastate transactions, there is no constitutional requirement that the scope of the statute be limited so as to exclude intrastate communications.' And 308 U.S. ag page 329, 60 S.Ct. at page 272: 'We hold that the broad and inclusive language of the second clause of the section is not to be limited by construction so as to exclude intrastate communications.'' United States v. Gris, 2 Cir., 247 F.2d 860, 863.

Thus, Section 605, as interpreted by controlling Federal judicial...