People v. Rabb, 16 N.Y.3d 144 (2010)
Before obtaining an eavesdropping warrant, law enforcement must demonstrate that normal investigative procedures have been tried and failed, reasonably appear unlikely to succeed if tried, or are too dangerous to employ; generalized and conclusory statements are insufficient.
Summary
Defendants Rabb and Mason challenged an eavesdropping warrant, arguing the prosecution failed to show normal investigative measures were exhausted or unlikely to succeed. The investigation stemmed from activities of a minority labor coalition, P&D Construction Workers Coalition, suspected of using coercion to force construction companies to hire their workers. The New York Court of Appeals affirmed the lower courts’ denial of the motion to suppress, finding sufficient record support that normal investigative procedures were unlikely to succeed, given the collusive relationships and potential for witness intimidation. The Court emphasized that while wiretapping shouldn’t be a first step, all conceivable techniques need not be exhausted.
Facts
The Labor Racketeering Unit (LRU) investigated Akbar’s Community Services, finding they coerced construction companies. The investigation revealed P&D Construction Workers Coalition, run by Rabb and Mason, engaged in similar coercive techniques. A construction company president gave investigators a business card from “Divine” of P&D, with a cell phone number linked to Carol Rabb. Billing records showed frequent calls between “Divine” and Akbar’s leaders. An undercover LRU investigator learned from Rasberry that P&D could cause trouble at job sites. Another contractor reported being approached by a P&D agent. Intercepted calls between Walker and Rabb revealed collusive efforts between Akbar and P&D. Physical surveillance to identify Rabb proved unsuccessful.
Procedural History
Defendants were indicted for enterprise corruption and grand larceny. They moved to suppress evidence from the eavesdropping warrants, arguing the application for Rabb’s warrant didn’t meet CPL 700.15 (4). Supreme Court denied the motions. Rabb and Mason pleaded guilty, preserving their right to appeal the denial of their suppression motions. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decision.
Issue(s)
Whether the People’s application for an eavesdropping warrant against Rabb’s cell phone met the requirements of CPL 700.15(4), specifically, whether the application demonstrated that normal investigative procedures had been tried and failed, reasonably appeared unlikely to succeed if tried, or were too dangerous to employ.
Holding
Yes, because the People’s application demonstrated that normal investigative measures would reasonably have been unlikely to succeed if tried, based on the specific facts of the collusive relationship between Akbar and P&D, the potential for witness intimidation, and the limitations of other investigative techniques in this particular context.
Court’s Reasoning
CPL 700.15 (4) requires a showing that normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried, or to be too dangerous to employ. The Court emphasized that wiretaps should not be used as a routine first step in investigations. The legislative intent behind CPL article 700 was to balance privacy rights with society’s interest in fighting crime, especially organized crime, where traditional methods often fail to reach high-level members. The Court found that the LRU did not resort to wiretapping as a routine first step, referencing the contact with the construction contractor, the phone number registered to Rabb, and the undercover officer’s information. The application outlined collusive efforts between Akbar and P&D, including shared information about job sites. While physical surveillance, undercover operations, witness interviews, and search warrants were used in the Akbar investigation, the People provided reasons why those techniques would be unlikely to succeed against Rabb and Mason. Specifically, physical surveillance was limited, undercover efforts had limited success, witnesses were unlikely to testify due to fear, and grand jury subpoenas would publicize the investigation. The Court noted, “[a]n affidavit describing the standard techniques that have been tried and facts demonstrating why they are no longer effective is sufficient to support an eavesdropping order even if every other possible means of investigation has not been exhausted.” The Court concluded that the People provided “some basis for concluding that less intrusive investigative procedures [were] not feasible” quoting United States v. Howard, 350 Fed Appx 517, 519 (2d Cir 2009) and that it is not required “to resort to measures that will clearly be unproductive” quoting United States v. Terry, 702 F.2d 299, 310 (2d Cir. 1983). The Court rejected the argument that because normal measures succeeded in the Akbar case they would have succeeded here, concluding “Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely.”