People v. Hunger, 23 N.Y.2d 444 (1969)

Evidence obtained as a direct or indirect result of illegal wiretapping is inadmissible in a criminal trial, and defendants have the right to a hearing to determine if such wiretapping occurred and if it tainted the evidence used against them.

Summary

Defendants were convicted of narcotics possession and bribery. They appealed, arguing that the evidence was insufficient, that the charges should have been severed, that the search warrant was illegal, and that they were improperly denied a hearing regarding potential illegal wiretaps. The Court of Appeals affirmed the convictions but remitted the case for a hearing on the wiretap issue, holding that the defendants were entitled to explore whether illegal wiretapping had tainted the evidence used against them, even if the prosecution claimed no direct evidence from the wiretaps was introduced.

Facts

Police obtained a search warrant for an apartment and the person of defendant Hunger based on information from a confidential informant and their own observations. The search revealed a large narcotics operation. Prior to the search, the police had been wiretapping the phone of defendant Harrison for four months. The defendants were subsequently charged with narcotics possession and bribery related to the narcotics operation.

Procedural History

The defendants were convicted in the trial court. Prior to trial, the trial court denied the defendant’s motion to sever the narcotics and bribery charges. During a hearing on whether the police officer perjured himself to obtain the search warrant, evidence of wiretapping emerged. The trial court denied the defendant’s motion for a full evidentiary hearing on the wiretaps. The New York Court of Appeals affirmed the convictions, but modified the judgment and remitted the case for a suppression hearing on the wiretapping issue.

Issue(s)

Whether the trial court erred in denying the defendants a full evidentiary hearing to determine if illegal wiretapping had occurred and if it tainted the evidence used against them at trial.

Holding

Yes, because the defendants had a right to explore whether illegal wiretapping had led to information improperly used against them, regardless of the prosecution’s claim that no direct evidence from the taps was introduced.

Court’s Reasoning

The Court of Appeals found that the trial court erred in cutting off questioning about the source of the police officer’s information and in denying the defendants a full evidentiary hearing concerning the wiretaps. The Court stated, “The representation of the District Attorney that no evidence or leads were obtained from the wiretaps cannot deprive the defendants, if they have standing, of an opportunity to test the legality of the wiretaps and whether the taps, if illegal, had led to information which was improperly used at this trial.” The court emphasized that an ex parte review of the wiretapping orders would be insufficient to protect the defendants’ constitutional rights, citing Alderman v. United States, 394 U.S. 165 (1969). The court remanded for a hearing where the District Attorney must disclose all wiretapping of conversations to which each defendant was a party or had standing to object. If the wiretapping orders were illegal, the court must determine if the convictions were based on tainted evidence and if a new trial is required. The Court also addressed the issue of probable cause for the warrant. It stated that even assuming the informant’s tip would not have furnished a basis for probable cause, there were the independent observations of the police officer. The court found that the officer knew that one of the apartments was occupied by a “plant girl”, and that shortly after placing a watch on the apartment building, the defendant Hunger, who had been seen at the building where the first plant had been found, was seen entering the apartment. Three other “plant girls” were also seen entering the building. The court held that this was the “abnormal activity” Justice Harlan referred to in Spinelli. This activity was highly suspicious and reinforced the probative value of the tip. Together, these circumstances constituted probable cause.