Abstract

The Arizona Legislature recently enacted a statute generally prohibiting wire tapping and eavesdropping except when performed by law enforcement officers pursuant to an "ex parte order" authorized by § 13-1057 of the Act. Section 13-1057 provides:

An ex parte order for wire tapping or eavesdropping may be issued by any justice of the supreme court, judge of the court of appeals, or judge of the superior court upon oath or affirmation of a county attorney, the attorney general, an officer above the rank of sergeant of any police department of. the state or of any political subdivision thereof, or the sheriff of any county, that there is probable cause to believe that a crime has been or is being committed, and that there is probable cause to believe that evidence of such a crime may be obtained, and describing with particularity the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication, identifying the particular number or telegraph line involved. 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 and shall satisfy himself of the existence of probable cause for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than one month unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that probable cause for such extension or renewal exists. Any such order, together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same. If any wire tapping or eavesdropping takes place pursuant to such order, the applicant shall file immediately with the judge or justice an affidavit upon oath or affirmation setting forth in detail all information obtained by the wire tapping or eavesdropping. This affidavit shall also be retained in his possession by the judge or justice. In the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same.

Because of the similarity between § 13-1057 and § 813-a of the New York Code of Criminal Procedure, which also provides for an ex parte eavesdrop order and which was recently held unconstitutional on its face by the United States Supreme Court in Berger v. New York, very serious questions are presented concerning the constitutionality of the new Arizona law and any orders issued under it. The lack of Arizona legislative judgment manifested by borrowing heavily from an enactment known to be invalid has triggered this Comment, which will seek to consider whether section 13-1057 may be implemented and, if not, to consider what avenues are open to the Arizona legislature to effectuate its purpose of authorizing limited wire tap and eavesdrop activity by police officers.

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