and who conducted her defense in this case, it is pointed out that the court sustained an objection to a general inquiry concerning wiretapping. The question was all-comprehensive and did not seek to elicit from the witness whether evidence then being given was the product of wiretapping. The question did not relate to any evidence offered by the Government or to any evidence or fact elicited on cross-examination. Propounded in the way it was, it was wholly immaterial.
Previously a request, extensive and all-comprehensive, had been made of counsel and addressed to General Kelley, who replied: 'I deem what he said regarding tapping of telephones to be purely a fishing expedition which requires no answer.' Mr. Palmer then said, 'If Mr. Kelley or Mr. Whearty will say upon the record that the phones of these people who I have named have never been tapped, I will take the unsworn word of either one of these men that the phones have not been tapped at any time before this case started or since.' Thereupon the Court rejoined: 'That is a matter of conference with counsel. Let's proceed.'
It was after that, that the court sustained an objection to the general and very comprehensive inquiry about wiretapping.
The propriety of this ruling is supported by the fact that Judge Ryan who presided in the New York case, devoted approximately six weeks to an inquiry concerning wiretapping, on a motion to suppress, and, at the end of the long odyssey, adjudged the expedition both futile and fruitless. The issues were practically identical.
If counsel for the defendant had challenged any evidence as having a possible origin in, or being traceable to, wiretapping, he would have been permitted to pursue the inquiry, but to permit a foray into a virgin and wholly unrelated field of facts would have but added more weight to the already too heavy feet of justice. See Judge Ryan's opinion, United States v. Coplon, D.C. 88 F.Supp. 921.
In the briefs of counsel for the defendant the predominant thought is expressed that wiretapping within itself is wrongful and violation of the law. This is not true; otherwise one would not dare dial a radio. The congressional act as construed by the Supreme Court does not make wiretapping an offense, but the interception and disclosure of the contents of the message constitute the crime. Both acts are essential to complete the offense.
The fact that the Congress has repeatedly refused to ban wiretapping may justify the reasonable inference that the enactment of Section 605, Title 47, supra, was for the purpose of protecting and preserving the integrity, inviolate of legitimate commercial transactions and that it was never intended to impair the police power of the Government, so essential to its preservation, by opening wide the channels and avenues of our diversified communications system to violators of the law. As presently construed, the criminal may ply his nefarious trade by radio, telegraph and telephone and enjoy immunity from detection and prosecution perforce the protecting shield and aegis of said Section 605, supra. Police power is an all-pervasive and somewhat indefinable power of Government, and by analogy from common-law principles, wiretapping would be an approved and legitimate practice by law enforcement officers. Defendant cannot well complain because the agents of the Government refrain from offending against the law by making disclosures or use of information obtained by wiretapping.
Able and diligent counsel for defendant make an additional contention that the arrest of the defendant was not justified under the provisions of Section 3052, Title 18 U.S.C.A., for the reason that, as it is alleged by counsel, 'there was no likelihood of escape.' Whether the statute cited by counsel has been modified since the arrest was made is unimportant for the reason that it is a common-law rule, and therefore a part of the laws of the United States, that an enforcement officer may make an arrest without warrant where there is probable cause to believe that a felony has been or is about to be committed. Carroll v. United States, 267 U.S. 132, loc. cit. 156, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790; Papani v. United States, 9 Cir., 84 F.2d 160, 6 C.J.S.,Arrest, 6b(2), p. 587; 6 C.J.S.,Arrest, 6 b(1), p. 586. However the matter of an improper arrest is not for the consideration of the court here. It is not newly discovered evidence and that question should have been raised in the regular motion for a new trial or by assignment of error, and it rests wholly for decision in the Court of Appeals.
The affidavits submitted by the parties, together with their briefs, have been examined and studied. I find no conflict of facts; neither do I find any conflict of the law and I find from the evidence submitted and from the records that the evidence upon which plaintiff was convicted did not stem from nor was it traceable to wiretapping, and, being untainted under the doctrine of the Nardone and Weiss cases, said motion should be overruled, and it will be so ordered.
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