People v. Basilicato, 64 N.Y.2d 103 (1984)

Affidavits supporting a wiretap warrant application must establish probable cause to believe that a specific individual is engaged in illegal activity and that the wiretap will yield evidence of that activity.

Summary

The New York Court of Appeals held that affidavits submitted to obtain a wiretap warrant for Larry Centore’s home phone lacked probable cause. The affidavits noted Centore’s prior criminal record and regular meetings with individuals who also had criminal records, sometimes carrying bags or briefcases. The Court found this activity suspicious but insufficient to establish probable cause that Centore was engaged in gambling or that a wiretap would provide evidence of such activity. However, the Court also held that the defendant’s grand jury testimony was admissible because it was voluntary, independent, and untainted by the illegal wiretap. Therefore, the motion to dismiss the remaining indictment counts was denied.

Facts

Larry Centore was the subject of a wiretap warrant application. Supporting affidavits indicated the following:

• Centore had a prior criminal record for assault and robbery, plus an unresolved gambling charge.
• He regularly met with individuals who also had criminal records, including gambling convictions.
• Meetings occurred at a local restaurant, and occasionally, some individuals were seen carrying brown paper bags, newspapers, or briefcases.

Procedural History

The trial court initially suppressed the wiretap evidence due to a lack of probable cause. However, the Appellate Division reversed, reinstating four counts of the indictment. The New York Court of Appeals then reviewed the Appellate Division’s decision.

Issue(s)

Whether the affidavits submitted in support of the wiretap warrant application were sufficient to establish probable cause that Larry Centore was engaged in illegal gambling activity and that a wiretap on his home phone would yield evidence of such activity.

Holding

No, because the activities described in the affidavits, while suspicious, did not rise to the level of probable cause to believe that Centore was engaged in gambling or that a wiretap on his home phone would yield evidence of illegal gambling.

Court’s Reasoning

The Court of Appeals determined that the affidavits lacked sufficient evidence to establish probable cause for the wiretap warrant. While the affidavits detailed Centore’s criminal history and associations with other individuals with criminal records, the described activities were deemed merely suspicious and not indicative of illegal gambling activity. The Court emphasized that probable cause requires more than just suspicion; it requires a reasonable belief, based on specific facts, that a crime has been or is being committed. The court stated: “These activities may be suspicious but they do not rise to the level of probable cause to believe that Centore was engaged in gambling or that a wire tap on his home phone would yield evidence of illegal gambling.” The Court, citing People v. McGrath, held that the defendant’s testimony before the Grand Jury was admissible because it was “the product of a voluntary and independent act which is sufficient to dissipate the taint.” This indicated that the testimony was not a direct result of the illegally obtained wiretap evidence and was therefore admissible.