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.