New York Law Review

Tag: Eavesdropping warrant

  • People v. Kerr, 34 N.Y.2d 115 (1974): Admissibility of Wiretap Evidence Despite Lack of Formal Notice

    People v. Kerr, 34 N.Y.2d 115 (1974)

    When a defendant has actual knowledge of an eavesdropping warrant and its contents within the statutory notification period due to their own motion for discovery, the prosecution’s failure to provide formal written notice does not require suppression of evidence obtained from the warrant.

    Summary

    Bonnie Kerr and Anthony Hueston were convicted on drug charges, with evidence obtained from a search warrant that was based on information from a prior wiretap. The wiretap warrant contained a clause waiving notice to Kerr and Hueston. Although the prosecution failed to provide the post-termination notice required by statute, the defendants had moved for discovery of the warrant and supporting documents within the statutory notification period. The New York Court of Appeals held that because the defendants had actual knowledge of the warrant through their own actions, the lack of formal written notice did not require suppression of the evidence. The court reasoned that the purpose of the notice requirement was satisfied.

    Facts

    Police obtained an eavesdropping warrant for Bonnie Kerr’s telephone. The warrant, issued on June 2, 1969, contained a clause stating that notice to Kerr and Tony DeJeste (Hueston) was expressly waived. The wiretap was extended and terminated on July 10, 1969. Based on information obtained from the wiretap, police obtained a search warrant, which led to the seizure of drugs and slugs. Kerr and Hueston were subsequently convicted of drug-related offenses. The prosecution did not provide the written post-termination notice of the eavesdropping warrant as required by statute.

    Procedural History

    The defendants moved to suppress evidence from both the eavesdropping warrant and the search warrant. The County Court denied the motions. The Appellate Division reversed, holding that the conversations were illegally intercepted and that the evidence obtained as a result should be suppressed, relying on the federal case of United States v. Eastman, which had suppressed the same wiretap evidence. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the clause in the eavesdropping warrant expressly waiving notice rendered the warrant void on its face.
    2. Whether the prosecution’s failure to provide post-termination notice of the eavesdropping warrant, as required by statute, necessitated the suppression of evidence obtained from the warrant, despite the defendants’ actual knowledge of the warrant.

    Holding

    1. No, because even if the warrant language purported to waive post-termination notice, that statement was a nullity and the warrant was valid.
    2. No, because under the specific circumstances of this case, where the defendants demonstrated actual knowledge of the warrant by moving for its discovery within the statutory notification period, the failure to provide formal written notice did not require suppression.

    Court’s Reasoning

    The court reasoned that the clause in the warrant waiving notice was, at best, ambiguous and, at worst, a nullity. The statute guarantees post-termination notice to individuals whose conversations were intercepted, regardless of any contrary statement in the warrant. Regarding the failure to provide formal notice, the court acknowledged the statutory requirement but emphasized the specific circumstances of the case. The defendants moved for an order directing the District Attorney to furnish a copy of the wiretap order and supporting documents within the statutory notification period. The court stated that “the purposes served by the notification requirement are, first, to publicize wiretaps to assure the community that eavesdropping techniques are reasonably employed and that at least the subject will eventually learn of them…and, second, to allow defendants in criminal actions to test the legality of the warrants by making timely motions to suppress evidence.” Here, both purposes were satisfied by the defendant’s own motion. The court concluded that “Where actual knowledge of the existence of the warrant is demonstrated within the time period allowed for notification by the prosecution, such formal written notification becomes a ministerial act, and the failure to so notify does not require suppression of evidence.” The court distinguished this situation from cases where there was a complete lack of notice. They determined no useful purpose would be served by requiring formal notice when the defense already possessed the information. They also found that the warrant application was sufficient under both state and federal law.

  • People v. Zorn, 34 N.Y.2d 137 (1974): Admissibility of Eavesdropping Evidence Against Unnamed Parties

    People v. Zorn, 34 N.Y.2d 137 (1974)

    A validly obtained eavesdropping warrant permits the use of intercepted communications against parties to the conversation, even if they are not named in the warrant itself, provided the warrant’s scope encompasses the specified crime and named suspect.

    Summary

    The New York Court of Appeals addressed whether telephone conversations intercepted under a valid eavesdropping warrant could be used to establish probable cause for a subsequent search warrant against a party not named in the original eavesdropping warrant. The Court held that such conversations are admissible, provided the eavesdropping warrant was validly obtained and the intercepted communications pertained to the crime specified in the warrant involving the named suspect. The Court reasoned that the focus is on the lawfulness of the seizure of the communication, not on against whom the communication is used.

    Facts

    In People v. Zorn, an eavesdropping warrant was issued for the phone of Slayka, suspected of gambling offenses. During the surveillance, conversations between Slayka and Zorn were intercepted, revealing details of illegal gambling activity. Based on these conversations, a search warrant was obtained for Zorn’s apartment, where evidence of a large-scale gambling operation was discovered. Zorn was arrested after arriving at the apartment with a key. In People v. Gnozzo, a similar situation arose where Gnozzo was implicated in gambling through a conversation with Lombardo, who was the subject of a valid eavesdropping warrant. This led to a search of Gnozzo’s premises.

    Procedural History

    In Zorn, the trial court denied Zorn’s motion to suppress the evidence. Zorn pleaded guilty and was sentenced, with the Appellate Division affirming the lower court’s decision. In Gnozzo, the trial court granted Gnozzo’s motion to suppress, a decision affirmed by the Appellate Division.

    Issue(s)

    1. Whether conversations intercepted under a valid eavesdropping warrant can be used against a party not named in the warrant to establish probable cause for a subsequent search warrant.
    2. In Zorn, whether the eavesdropping warrant was supported by probable cause.
    3. In Zorn, whether the 30-day term of the eavesdropping warrant and absence of limitation as to hours for execution was too broad.

    Holding

    1. Yes, because the focus is on whether the seizure of the communication was lawful under the warrant, not on who is ultimately prosecuted using that communication.
    2. Yes, because the affidavit supporting the warrant application provided sufficient evidence of Slayka’s gambling activities to establish probable cause.
    3. No, because the 30-day period is reasonable for the type of surveillance required in gambling investigations, and the absence of hourly restrictions did not render the warrant unconstitutional under the specific facts of the case.

    Court’s Reasoning

    The Court reasoned that the relevant statutes (Code of Criminal Procedure and Criminal Procedure Law) require warrants to particularly describe the communications sought and identify the person whose communications are to be intercepted, if known. The warrants in these cases complied with those requirements by naming the known suspects and describing the criminal activity. The Court emphasized that the constitutionality of the warrants as to the named suspects was not challenged.

    The Court stated, “[T]here is no requirement the communication be used only against named suspects.” It interpreted the statute’s notice requirement to “other parties” of intercepted communications to indicate legislative intent that these statements could be used in criminal proceedings. The Court rejected the argument that the warrant had to be amended to include Zorn’s name, stating that such an amendment is required only when a communication involves a different crime than the one specified in the warrant. The court cited McKinney’s 1968 Session Laws of New York, Memorandum, p. 2293, at p. 2296, noting, “the legislative intent was to require amendments where different crimes are disclosed.”

    The Court noted that both the State and Federal Constitutions prohibit only “unreasonable searches and seizures” and “unreasonable interception of telephone communications.” Since the eavesdropping was conducted in accordance with the terms of the valid warrants, it was not unreasonable. The Court cited several federal cases, including United States v. Cox, 449 F.2d 679, in support of the proposition that eavesdropping statutes and warrants are valid, and the conversations usable against persons not named in the warrants. “Admissibility does not determine the lawfulness of the seizure; the lawfulness of the seizure determines admissibility.”

  • People v. McCall, 17 N.Y.2d 152 (1966): Sufficiency of Eavesdropping Warrant Affidavits

    People v. McCall, 17 N.Y.2d 152 (1966)

    An affidavit supporting an eavesdropping warrant must contain specific facts, not just conclusory statements, to establish reasonable grounds to believe that evidence of a crime will be obtained.

    Summary

    The New York Court of Appeals reversed the defendants’ convictions for conspiracy and narcotics possession, holding that the affidavits supporting the eavesdropping warrants were insufficient because they contained only conclusory statements and lacked specific facts to justify the warrants’ issuance. The court emphasized the need for judicial safeguards to protect privacy rights and held that a trial court must assess the factual basis for an eavesdropping order, even if issued by another judge, when the order’s validity is challenged and the evidence obtained is central to the prosecution’s case.

    Facts

    The People obtained judicial orders permitting eavesdropping on telephones based on affidavits. The defendants were subsequently convicted of conspiracy to violate narcotics laws. A substantial part of the overt acts supporting the conspiracy charge consisted of telephone conversations intercepted via the eavesdropping orders. Two of the defendants were also convicted of narcotics possession, with the intercepted phone calls playing an important role in those convictions as well.

    Procedural History

    After the indictment, the defendants moved to inspect the eavesdropping orders and supporting affidavits. The County Court denied the motion, deeming the orders not public records. At trial, the People offered the orders into evidence. Defense counsel, examining the orders and affidavits for the first time, objected to their reception and the admission of evidence obtained through eavesdropping. The trial court declined to rule on the affidavits’ sufficiency, deferring to the issuing judge’s discretion. The Court of Appeals reversed the convictions.

    Issue(s)

    Whether the affidavits supporting the eavesdropping orders were sufficient to establish reasonable grounds to believe that evidence of a crime would be obtained through eavesdropping.

    Holding

    No, because the affidavits were barren of tangible facts upon which a judge could exercise discretion, containing only conclusory statements.

    Court’s Reasoning

    The Court of Appeals found the affidavits supporting the telephone interception orders insufficient. The affidavits stated only the District Attorney’s conclusion that “information received from persons of known reliability” revealed that the telephone was being used for illicit drug trafficking. The court noted that the affidavits failed to state what was “revealed” as a fact or even in substance. The court stated that even if the name of the informant is not disclosed, “some factual statement of the affiant’s experience with his reliability and some factual showing of what he ‘revealed’ are basic requirements.” The court emphasized that the District Attorney’s affidavits presented only indefinite assertions from an undisclosed person to another equally indefinite person, providing no factual basis for the judge to assess. Moreover, the District Attorney did not appear personally before the Justice in Westchester on either application, so the Justice had no opportunity to “examine on oath the applicant and any other witness he may produce” as authorized by Section 813-a of the Code of Criminal Procedure. The court drew an analogy to search warrants, stating that just as with search warrants, “there is a significant need for an adequate factual basis on which the Judge will be able to decide whether or not the order or warrant will issue.” The expressions “oath or affirmation” and “reasonable ground to believe” in the eavesdropping statute (Code Grim. Pro., § 813-a) could have no other meaning. The Court of Appeals emphasized the importance of protecting privacy rights and ensuring that judges have a sufficient factual basis before issuing eavesdropping warrants. A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search warrant or order for interception is all right if a Judge has seen fit to sign it.