New York Law Review

Tag: Consensual Recording

  • People v. McGrath, 46 N.Y.2d 12 (1978): Admissibility of Consensual Eavesdropping Despite Employer Rules

    People v. McGrath, 46 N.Y.2d 12 (1978)

    It is not unlawful to eavesdrop on telephone conversations with the consent of one party, even if the consenting party is a government employee who may have acted contrary to their employer’s rules.

    Summary

    Defendant, a postmaster, was charged with aggravated harassment for making harassing phone calls to a co-employee. The co-employee, with the knowledge of other postal employees, recorded these conversations. The defendant moved to suppress these recordings, arguing they violated postal regulations. The trial court granted the motion, and the County Court affirmed. The New York Court of Appeals reversed, holding that consensual eavesdropping is permissible, irrespective of whether the consenting party violated their employer’s regulations. The court relied on existing penal law and the principle that evidence obtained in violation of internal agency rules is not necessarily inadmissible.

    Facts

    The defendant, McGrath, was the Postmaster of the Germantown Post Office. He made a series of telephone calls to a female co-employee both at the post office and at her home. These calls formed the basis of a charge of aggravated harassment under New York Penal Law § 240.30(1), alleging that McGrath intended to harass, annoy, threaten, or alarm the co-employee. The co-employee, with the knowledge and advice of fellow postal employees, recorded these telephone conversations.

    Procedural History

    McGrath was arraigned in Town Court. He moved to suppress the tape recordings of his phone calls. The Town Court granted the motion to suppress the recordings of calls completed at the post office, citing a violation of Postal Regulation 668.291. The County Court affirmed this decision. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether tape recordings of telephone conversations, made with the consent of one party but in potential violation of that party’s employer’s (Postal Service) regulations, are admissible in court.

    Holding

    No, because it is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties, and the fact that the consenting party may have violated her employer’s rules does not render the evidence inadmissible.

    Court’s Reasoning

    The Court of Appeals grounded its decision in New York Penal Law § 250.00 and Criminal Procedure Law § 700.05(3), which permit eavesdropping with the consent of one party to the conversation. The court also cited Rathbun v. United States, 355 U.S. 107, to support the principle of permissible consensual eavesdropping. The court addressed the argument that the postal employee’s actions violated Postal Regulation 668.291, which prohibits employees from recording or intercepting communications without the consent of all parties involved. The court, citing United States v. Caceres, 440 U.S. 741, held that a violation of internal agency regulations does not automatically render evidence inadmissible. The Court emphasized that the key factor was consent from one party to the conversation, irrespective of any potential violation of internal employer rules. The Court stated: “It is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties to the conversation (Penal Law, § 250.00; CPL 700.05, subd 3; Rathbun v United States, 355 US 107), nor is the tape recording evidence in this case to be excluded because the consenting party, who was a government employee, may have acted contrary to the rules of her employer (see United States v Caceres, 440 US 741).” There were no dissenting or concurring opinions noted.

  • People v. Berger, 21 N.Y.2d 611 (1968): Admissibility of Evidence Obtained via Consensual Electronic Surveillance

    21 N.Y.2d 611 (1968)

    Evidence obtained through electronic surveillance with the consent of one party to the conversation is admissible and does not violate the Fourth Amendment rights of the other party.

    Summary

    The Court of Appeals of New York addressed whether the use of a concealed radio device to transmit incriminating conversations between a defendant and a police informant violates the defendant’s constitutional rights. The court held that such transmission, with the consent of one party to the conversation, does not violate the Fourth Amendment. This decision rested on the principle that the real breach of privacy occurs when a party to a private conversation voluntarily discloses it, regardless of whether they rely on memory, notes, or electronic devices.

    Facts

    Five separate cases were consolidated on appeal, each involving a conviction for narcotics sales. In each case, a police informant, equipped with a concealed radio device, engaged in conversations with the defendant that were transmitted to and overheard by law enforcement. The defendants argued that the use of this transmitted evidence violated their constitutional rights.

    Procedural History

    The defendants were convicted at trial. They appealed, arguing that the evidence obtained through the electronic transmissions should have been suppressed as a violation of their Fourth Amendment rights. The appellate division affirmed the convictions, and the cases were subsequently appealed to the New York Court of Appeals.

    Issue(s)

    Whether the transmission to police by an informant, via a concealed radio device, of incriminating conversations with the defendants constitutes a violation of their constitutional rights, specifically their Fourth Amendment right to privacy?

    Holding

    No, because the voluntary disclosure of a conversation by one party to it, with or without electronic aids, does not violate the other party’s Fourth Amendment rights.

    Court’s Reasoning

    The court relied on On Lee v. United States, 343 U.S. 747 (1952) and Lopez v. United States, 373 U.S. 427 (1963), which established that the use of electronic devices by one party to a conversation to record or transmit it does not violate the constitutional rights of the other party. The court reasoned that the fundamental breach of privacy occurs when a party to a conversation decides to disclose it, and the method of disclosure (memory, notes, or electronic devices) is immaterial. Quoting from Lopez, the court emphasized that the problem is essentially the same whether the informer tells about the conversation based on memory or uses sophisticated devices.

    The court distinguished Katz v. United States, 389 U.S. 347 (1967), which held that intercepting a private telephone conversation by attaching an electronic device to a public telephone booth violated Fourth Amendment rights. The court reasoned that using a public telephone booth constitutes seeking private telephone service, and the interception is akin to eavesdropping. However, Katz does not apply to a voluntary disclosure by a party to the conversation.

    The court also cited Hoffa v. United States, 385 U.S. 293 (1966), which allowed an informer to testify about private conversations even without electronic recording or transmission. The court adopted the Second Circuit’s reasoning in United States v. Kaufer, 406 F.2d 550 (2d Cir. 1969), which similarly distinguished Katz. The court stated that the New York statute prohibiting eavesdropping expressly excepts conversations overheard with the consent of a party to the conversation.