New York Law Review

Tag: electronic surveillance

  • People v. Kramer, 92 N.Y.2d 527 (1998): Establishing Statutory Standing to Challenge Pen Register Evidence

    People v. Kramer, 92 N.Y.2d 527 (1998)

    Individuals whose telephone numbers are captured by pen registers or trap and trace devices, and those who become identifiable targets of an investigation due to information obtained from these devices, have statutory standing to challenge the legality of the pen register or trap and trace orders.

    Summary

    This case concerns multiple defendants charged with crimes stemming from alleged rigged harness racing and bookmaking activities. The central issue is whether the defendants had statutory standing to challenge the legality of pen register and trap and trace orders used to gather evidence against them. The New York Court of Appeals held that individuals whose telephone numbers were captured by these devices, as well as those who became identifiable targets of the investigation through the use of these devices, have standing to challenge the orders. The Court reasoned that a narrow interpretation of standing would undermine the legislative intent to protect citizens against intrusive electronic surveillance. The Court also addressed and dismissed larceny charges against one of the defendants.

    Facts

    The State Organized Crime Task Force (OCTF) investigated alleged harness racing rigging and bookmaking. They obtained pen register and trap and trace orders to monitor the phone lines of Daniel Kramer and others. These devices captured the phone numbers of several individuals, including the appellants, who were later charged as co-conspirators. The pen register devices were capable of recording both digital and aural transmissions, depending on the mode. Based on this evidence, eavesdropping warrants were obtained and conversations were recorded.

    Procedural History

    Defendants moved to suppress the evidence obtained through the pen registers and eavesdropping warrants, arguing they were obtained illegally. The County Court initially granted the suppression motions, finding the defendants had standing and that the pen registers were functionally eavesdropping devices requiring probable cause. The Appellate Division reversed, denying standing to most defendants. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether individuals whose telephone numbers are captured by pen register or trap and trace devices have statutory standing to challenge the legality of the orders authorizing those devices?
    2. Whether individuals who become identifiable targets of a criminal investigation due to information gathered from pen register or trap and trace devices have statutory standing to challenge the orders authorizing those devices?
    3. Whether a racehorse driver who allegedly intentionally restrained his horse can be charged with larceny by false promise?

    Holding

    1. Yes, because CPL 710.20(7) provides a basis for challenging pen register evidence, and CPL 710.10(5) defines “aggrieved” person broadly by tying into CPLR 4506(2), the legislative intent supports a generous standing interpretation to protect citizens.
    2. Yes, because CPLR 4506(2)(c) when read with CPL 705.20(3)(c) shows individuals who emerge as identifiable targets through pen register technology should be able to challenge the legality of the methods used.
    3. No, because the theory that the driver made an implied general promise to race to win is too thin to support a larceny by false promise charge.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 710.20(7) allows a defendant “aggrieved” by the unlawful acquisition of evidence via pen register or trap and trace to move for suppression. The definition of “aggrieved” in CPL 710.10(5) includes but is not limited to those in CPLR 4506(2). The court found an “unintended ellipsis in the statutory framework of pen register standing” which requires “interstitial common-law adjudication.” The Court stated that “the Legislature intended to provide a statutory basis for pen register standing, proportionate and appropriate to that already in place by enactment covering eavesdropping standing”.

    The Court drew an analogy to CPLR 4506(2)(a), which grants standing to those whose telephonic communications are overheard or recorded, arguing that electronic communication captured by pen registers is comparable. The court cautioned against creating an “unreasonably high standing bar” that would undermine the legislative intent to protect against technological dangers.

    Addressing the larceny charge against Grant, the court found the theory of larceny by false promise – an implied promise to race to win – too attenuated. Penal Law § 155.05(2)(d) defines larceny by false promise as obtaining property through a representation of future conduct with no intent to fulfill the promise. The court found no basis for expanding larceny by false promise to these facts, noting that “these facts may more properly fit under a fraud category… even more specifically, under the category of tampering with a sports contest”. The court held that such a promise cannot be seriously implied from a racing license issued many years before the event.

  • People v. Teicher, 52 N.Y.2d 638 (1981): Warrantless Video Surveillance and Fourth Amendment Limitations

    People v. Teicher, 52 N.Y.2d 638 (1981)

    A warrant may be issued to authorize video taping of evidence to be admitted at trial, provided certain procedures are followed and safeguards observed, consistent with Fourth Amendment protections, even though specific statutory authority is lacking.

    Summary

    Dr. Teicher, a dentist, was convicted of sexually abusing sedated patients. The key evidence was a video recording obtained via a warrant authorizing a hidden camera in his office. The New York Court of Appeals affirmed the conviction, holding that while CPL article 700 doesn’t cover video surveillance, CPL article 690 does allow for warrants to seize intangible visual evidence. The court also found that the warrant satisfied Fourth Amendment requirements by showing probable cause, particularization, minimization of intrusion, and necessity, as other investigative methods had failed.

    Facts

    Several female patients complained that Dr. Teicher sexually abused them while they were sedated. One patient, Hyman, reported the incident to the police. Two complainants, Hyman and Carson, were equipped with hidden microphones during subsequent visits, but failed to elicit incriminating statements. Based on these complaints, the District Attorney obtained a warrant to install a hidden camera in Teicher’s office to record his interactions with future patients. Police Officer Beineix posed as a patient and was videotaped while undergoing a dental procedure, during which Teicher engaged in acts that were later determined to be sexual abuse.

    Procedural History

    Teicher was indicted on three counts of sexual abuse. The trial court dismissed the count related to Hyman due to lack of evidence. Teicher was convicted on the counts involving Carson and Beineix. The Appellate Division affirmed the conviction, and Teicher appealed to the New York Court of Appeals, challenging the sufficiency of evidence and the admissibility of the video tape.

    Issue(s)

    1. Whether the evidence was sufficient to establish Teicher’s guilt for sexually abusing Carson and Beineix.

    2. Whether the Supreme Court had the power to issue a warrant authorizing video surveillance of Teicher’s activities.

    3. Whether Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 applies to video electronic surveillance.

    4. Whether the video surveillance violated the Fourth Amendment.

    Holding

    1. Yes, because the evidence showed Carson was incapable of consent due to sedation, and Teicher’s actions indicated sexual gratification. Yes, because the video tape and Inspector Dadona’s testimony, along with the expert refutation of medical necessity, sufficiently proved Teicher’s guilt beyond a reasonable doubt regarding Beineix.

    2. Yes, because while CPL article 700 does not apply, CPL article 690 provides authority for issuing a warrant to seize intangible visual images.

    3. No, because Title III is directed at aural acquisition of communications and does not govern video surveillance.

    4. No, because the warrant satisfied the requirements of probable cause, particularization, minimization, and necessity derived from Fourth Amendment jurisprudence.

    Court’s Reasoning

    The Court reasoned that sufficient evidence existed to support the convictions on both counts. Regarding Carson, the court emphasized that her weakened state allowed the trier of fact to infer a lack of capacity to consent and that Teicher’s act of placing her hand against his genitals was sufficient to demonstrate sexual gratification.

    Concerning the video surveillance, the court acknowledged that CPL article 700, governing eavesdropping warrants, did not apply to video surveillance. However, it found authority in CPL article 690, which allows for the seizure of property constituting evidence of a crime. Analogizing to United States v. New York Tel. Co., the court held that this provision could be interpreted to include intangible visual images obtained through video recording.

    The court also held that Title III of the Federal Omnibus Crime Control and Safe Streets Act did not preempt state law in this case because Title III governs only aural surveillance. Addressing the Fourth Amendment concerns, the court acknowledged the intrusive nature of video surveillance, but declined to deem it per se unreasonable. Drawing on Berger v. New York and Katz v. United States, the court articulated requirements for a valid video surveillance warrant, including probable cause, particularization, minimization, and a showing that less intrusive means had been exhausted. The court found that the warrant in this case met those requirements, noting that the police had attempted other investigative methods and that a police decoy alone would not have sufficed. The court stated, “The degree of intrusiveness inherent in video electronic surveillance demands unswerving adherence to each of the limitations placed upon the use of this device.”

  • People v. Marin, 48 N.Y.2d 537 (1979): Appealability of Order to Investigate Electronic Surveillance

    People v. Marin, 48 N.Y.2d 537 (1979)

    An order directing a prosecutor to inquire into potential electronic surveillance of a grand jury witness is not appealable because no statute authorizes such an appeal in criminal proceedings.

    Summary

    Marin, a grand jury witness, sought an order compelling the Special State Prosecutor to investigate whether federal authorities had conducted electronic surveillance on him and whether grand jury questions stemmed from such surveillance. The trial court denied the application, but the Appellate Division reversed and ordered the inquiry. The New York Court of Appeals addressed whether the Appellate Division had the authority to review the trial court’s order. The Court of Appeals held that no statute authorized the appeal, thus the Appellate Division lacked jurisdiction to hear the case. The appeal was dismissed.

    Facts

    Marin was a witness before a Grand Jury. He applied for a court order to compel the Special State Prosecutor to inquire with Federal authorities regarding potential electronic surveillance of himself. He also sought a statement from the prosecutor as to whether the questions asked to him before the grand jury were the product of any such surveillance. The Extraordinary Special and Trial Term of the Supreme Court denied Marin’s application.

    Procedural History

    The trial court denied Marin’s application. Marin appealed to the Appellate Division, which reversed the lower court’s decision and directed the prosecutor to make the requested inquiry. The Special State Prosecutor then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an order compelling a prosecutor to inquire into potential electronic surveillance of a grand jury witness is appealable.

    Holding

    1. No, because the right to appeal in criminal cases is determined exclusively by statute, and no statute authorizes an appeal from such an order.

    Court’s Reasoning

    The Court of Appeals emphasized that the right to appeal in criminal cases is governed exclusively by statute. Since Marin could not identify any statute authorizing an appeal from the trial court’s order, the Appellate Division lacked the authority to review the decision. The court cited CPL 1.10 and 1.20, noting that criminal proceedings and appeals are exclusively governed by the Criminal Procedure Law and that the proceedings before the Grand Jury involved a criminal investigation. The court distinguished cases involving motions to quash subpoenas, noting that those motions are limited in scope and must be made promptly, whereas Marin’s application had the potential to delay the Grand Jury investigation significantly. The court stated, “That the Legislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and ‘any arguments for a change in the practice, however persuasive, must be addressed to the legislature’.” The court also pointed out that appellate review could be obtained if Marin refused to answer questions and was held in contempt. Permitting appeals like Marin’s could “paralyze[ ]” investigations due to a proliferation of appeals. The court concluded that the appeal should be dismissed and the matter remitted to the Appellate Division with instructions to dismiss the appeal taken to that court.

  • People v. Cruz, 34 N.Y.2d 364 (1974): Establishing Threshold for Wiretapping Claim Hearings

    People v. Cruz, 34 N.Y.2d 364 (1974)

    A defendant alleging illegal wiretapping must present reasonably precise facts linking the suspected surveillance to the trial proceedings to warrant a hearing; a vague, conclusory allegation is insufficient.

    Summary

    Eduardo Cruz was convicted of possession and transportation of incendiary bombs and possession of a weapon. On appeal, Cruz argued that the prosecution used information obtained from illegal wiretapping of him and his counsel, and that the trial court erred in not conducting a hearing on his allegations. The New York Court of Appeals affirmed the conviction, holding that Cruz’s initial allegations of eavesdropping were too vague and unsupported to warrant a hearing. The court outlined guidelines for future cases involving similar allegations, emphasizing the defendant’s burden to provide specific facts reasonably suggesting surveillance before the burden shifts to the prosecution to affirm or deny the allegations in a detailed affidavit.

    Facts

    Eduardo Cruz and Wilfredo Melendez were arrested after a traffic stop. During the stop, Officer Amira saw a brown bag in the back seat. Cruz made a sudden movement toward the bag, prompting Amira to seize it. Cruz warned, “Be careful man, that’s a bomb.” The bag contained components of an incendiary bomb. A search of the car at the police station revealed a billy club. Before trial, Cruz sought disclosure of any eavesdropping evidence, which was denied. During the trial, Cruz’s counsel alleged that the prosecution’s cross-examination of a defense witness suggested illegal wiretapping due to questions about the “Anarchist’s Cookbook.” Later, counsel alleged a reference in the prosecutor’s summation indicated wiretapping.

    Procedural History

    Cruz was convicted in the trial court. He appealed, arguing that the People were using information derived from illegal wiretapping and that the trial court erred in not holding a hearing on his allegations. The Appellate Division affirmed the conviction, and Cruz appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s allegations of illegal wiretapping were sufficient to require a hearing on the matter.

    Holding

    1. No, because the defendant’s initial allegation of eavesdropping was vague, conclusory, and unsupported, barely sufficing to shift the burden of responding to the People.

    Court’s Reasoning

    The Court of Appeals held that Cruz’s initial allegation of eavesdropping was too vague and unsupported to warrant a hearing. The court emphasized that the defendant bears the initial burden of presenting reasonably precise facts that suggest the defendant or his counsel was subjected to undisclosed electronic surveillance. Such allegations should specify dates, persons, telephone numbers, and facts that link the suspected surveillance to the trial proceedings. A sufficient showing shifts the burden to the People to affirm or deny the allegations in a reasonably specific, comprehensive, and forthright affidavit. The affidavit should detail the law enforcement agencies contacted, the inquiries made, and the replies received regarding electronic surveillance. The court noted, “To use, without notice to the defendant, evidence derived from electronic surveillance is impermissible, even if the surveillance itself is legal.” However, in this case, the prosecutor’s denial, coupled with the court’s examination of the prosecutor’s file, sufficiently addressed the vague allegations. The court noted that while the later allegations regarding cross-examination and summation were more specific, they remained speculative. The court ultimately affirmed the conviction.

  • 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.