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lem." Only two, however, warrant this Court's serious attention here: the report of Privy Councillors in 1957, and the recent Report of the President's Commission on Law Enforcement and the Administration of Justice.

75 Apart from the two studies mentioned in the text, the best Federal Study was conducted by the Ervin Committee. For several years, the Committee periodically held hearings in which a wide range of opinion was collected. The Committee also reprinted in its hearings a number of valuable and otherwise generally unavailable documents. See generally, Wiretapping and Eavesdropping, Summary-Report of Hearings 1958-61, Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 87th Cong., 2nd Sess. (1962). Foreign law, which generally permits the use of electronic surveillance techniques to law enforcement, is summarized in Wiretapping, Eavesdropping, and the Bill of Rights. Hearings before the Subcommittee on Constitutional Rights, Committee on the Judiciary, United States Senate, 85th Cong., 2nd Sess., Appendix to Hearings of May 20, 1958, 137-86 (1958). The Long Committee has also recently been looking into a wide range of practices which bear on privacy. While it has uncovered illegal use of these techniques on the Federal and State level, the study is seriously defective and here inapposite because it has not undertaken to examine the operation of the court order systems in either Nevada, Maryland, Oregon, Massachusetts or New York. See generally, Invasions of Privacy, Hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, United States Senate, 89th Cong., 1st Sess., Pt. 1 (1965) and succeeding volumes. On the state level, the best study was undertaken by the Savarese Committee in New York. See generally, Eavesdropping and Wiretapping, A Report of the New York State Joint Legislative Committee to Study Illegal Interception of Communication (1956); Eavesdropping, Wiretapping and Licensed Private Detectives, A Report of the New York State Joint Legislative Committee to Study Illegal Interception of Communications (1957), both reprinted in, Wiretapping, Eavesdropping and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 85th Cong., 2nd Sess., Pt. 2, 267-457 (1958). Today, however, it is dated. Bugging was only brought under the court order system after the study. During the study, moreover, the provisions of the existing law were not then enforced through the suppression sanction.

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1. The Report of the Privy Councillors.

In June of 1957, three Privy Councillors were appointed to inquire into the interception of communications in Great Britain. The practice over a twenty year period

Cf. People v. McCall, 17 N.Y.2d 152, 269 N.Y.S.2d 396, 216 N.E.2d 570 (1966). For example, the Committee found that police affidavits were "extremely sketchy" and that there was abuse by low level police of wiretap information. Eavesdropping and Wiretapping, Id. at 296-302. The President's Commission on Law Enforcement and the Administration of Justice, however, found that this picture has "changed substantially under the impact of pretrial adversary hearing on motions to suppress" and that “legislative and administrative" controls have "apparently been successful in curtailing" incidence of low-rank police "abuse." President's Report at 202. This New York experience also supports the Commission's conclusion that a national court order system "would significantly reduce the incentive for, and the incidence of, improper electronic surveillance. Id. at 203. New York, too, has shown a willingness to prosecute private eavesdroppers. See New York Times, Dec. 16, 1966, p. 1, col. 5. There is no question that New York's experience with Mapp v. Ohio, 367 U.S. 643 (1961) has greatly improved its criminal procedure. The McCall decision thus bids equally well in the area of electronic surveillance. The affidavit in this appeal is unfortunately a better illustration of pre-Mapp-pre-McCall procedure than it is of today's practice. There is no question that the Office of the District Attorney had probable cause to use the equipment; the only problem is in the degree to which the affidavits on their face disclosed it to the judge issuing the orders. On the private level, the best study is Dash, Schwartz and Knowlton, The Eavesdroppers (1959). It, too, is now dated. There is also some question of the accuracy of some of its conclusions; the researchers did not always have access to the best sources of information. It is evaluated in "The Wiretapping-Eavesdropping Problem: Reflections on The Eavesdroppers: A Symposium", 44 Minn. L. Rev. 813-940 (1960). Most of the others can only be described as journalistic sensationalism. See, e.g., Packard, The Naked Society (1964); Brenton, The Privacy Invaders (1964).

76 Unless otherwise noted this information is taken from Privy Councillors Report. The Report took up only wiretapping, but its conclusions are equally applicable to other forms of electronic surveillance.

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was examined. After reviewing the historical source of the power as exercised by the police, the Councillors took up the purposes and extent of its use. The Report indicated that the power to intercept was limited to serious crimes and issues of the security of the state. Serious crime was understood to mean a crime for which a long term of imprisonment could be imposed or a crime in which a large number of people were involved. Interception could only be on a warrant issued by the Home Secretary. Three requirements were set out:

(1) The offense must be really serious;

(2) Normal methods of investigation must have been tried and failed, or must from the nature of things be unlikely to succeed if tried;

(3) There must be good reason to think that an interception would result in a conviction."

The Councillors found that metropolitan police used interception chiefly "to break up organized and dangerous gangs "78 The experience of the police was that much of the major crime in England stemmed from gangs located in London. According to the police, the leaders of the gangs needed the telephone to communicate with their henchmen. The chief use of interception by the Board of Customs and Excise, on the other hand, was in the area of diamond smuggling. Their experience was that the traffic was organized by a "very small, closed group" in which it was "hard to get reports from informers or by normal means of detection." " Again, the telephone was widely employed by the individuals. Finally, the Councillors noted that in espionage the weakest link was com

77 Id. at 473.

78 Id. at 480.

79 Ibid.

77-540 O-67-71

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munication, and without penetration of this link, detection would be almost impossible.

The Councillors refrained from making any hard judgements on effectiveness in terms of alternatives, noting the impossibility of certain conclusions in this area. But based on their examination, they had no question but that its use was necessary in certain kinds of cases. They observed:

The freedom of the individual is quite valueless if he can be made the victim of the law breaker. Every civilized society must have power to protect itself from wrongdoers. It must have power to arrest, search and imprison those who break the laws. If these powers are properly and wisely exercised, it may be thought that they are in themselves aids to the maintenance of the true freedom of the individual.80

The Councillors concluded that no steps should be taken to deprive the police of the power of interception. They noted:

But so far from the citizen being injured by the exercise of the power in the circumstances we have set out, we think the citizen benefits therefrom. The adjustment between the right of the individual and the rights of the community must depend upon the needs and conditions which exist at any given moment, and we do not think that there is any real conflict between the rights of the individual citizen and the exercise of this power . . . . The issue of warrants . . . will permit the freedom of the individual to be unimpeded, and make his liberty an effective, as distinct from a nominal, liberty.

80 Id. at 487

81 Id. at 489.

81

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They continued:

We cannot think it to be wise or prudent or necessary to take away from the Police any weapon or to weaken any power they now possess in their fight against organized crime of this character.*** If it be said that the number of cases where methods of interception are used is small and that an objectionable method could therefore well be abolished, we feel that . . . this is not a reason why criminals in this particular class of crime should be encouraged by the knowledge that they have nothing to fear from methods of interception.*** This, in our opinion, so far from strengthening the liberty of the ordinary citizen, might very well have the opposite effect.82

Finally, they concluded:

If it should be said that at least the citizen would have the assurance that his own telephone would not be tapped, that this would be of little comfort to him, because if the powers of the Police are allowed to be exercised in the future, as they have been in the past under the safeguards we have set out, the telephone of the ordinary law-abiding citizen would be quite immune.... (I)f it is said that when the telephone wires of a suspected criminal are tapped all messages to him, innocent or otherwise, are necessarily intercepted too, it should be remembered that this is really no hardship at all to the innocent citizen.*** This cannot properly be described as an interference with liberty; it is an inevitable consequence of tapping the telephone of the criminal; but it has no harmful results . . . . The citizen must endure this inevitable consequence in order that the main purpose of detecting and preventing crime should be achieved. We cannot think, in any event, that the fact innocent

82 Ibid.