New York Law Review

Tag: wiretapping

  • People v. Gallina, 66 N.Y.2d 50 (1985): Strict Compliance Required for Wiretap Extensions and Evidence Sealing

    People v. Gallina, 66 N.Y.2d 50 (1985)

    Wiretap evidence is inadmissible if authorities fail to strictly comply with statutory requirements for obtaining extensions, inactivating devices, and sealing recordings.

    Summary

    This case addresses the level of adherence required to Criminal Procedure Law article 700 in wiretap investigations and the repercussions of non-compliance. The Court of Appeals affirmed the Appellate Division’s decision to suppress wiretap evidence due to inadequate compliance with statutory requirements. The court emphasized that applications for wiretap extensions must be made before the original warrant expires, eavesdropping devices must be fully inactivated during lapses in authority, and recordings must be promptly sealed. Failure to meet these requirements necessitates suppression of the evidence obtained.

    Facts

    Law enforcement obtained authorizations for multiple wiretaps during a heroin sales investigation at a meat market where the defendant worked. Wiretap three targeted two phones at the market. An extension was sought, resulting in wiretap four. After wiretap four ended, the equipment was turned off but remained in place, and the tapes were sealed with a delay. A further warrant led to wiretap five, followed by wiretap six. The tapes from wiretap six were also sealed with a delay. The delay in obtaining the extension for wiretap four was attributed to transcription and translation difficulties and a broken typewriter.

    Procedural History

    The trial court denied the defendant’s motion to suppress the wiretap evidence, leading to his conviction for criminal sale of a controlled substance. The Appellate Division reversed, granting the motion to suppress evidence from wiretaps two and five (and subsequent extensions), and ordered a new trial. The People appealed to the Court of Appeals.

    Issue(s)

    1. Whether an order extending a wiretap can be issued after the original wiretap order has expired?

    2. Whether merely turning off an eavesdropping device satisfies the statutory requirement of permanent inactivation during a lapse in wiretapping authority?

    3. Whether evidence obtained from a wiretap is admissible when the application for that wiretap was preceded by violations of the extension and inactivation provisions of the eavesdropping statutes?

    4. Whether a delay of almost two full business days in sealing wiretap recordings is excusable under CPL 700.50(2)?

    Holding

    1. No, because CPL 700.40 requires that an application for an extension order be made prior to the expiration of the original eavesdropping warrant.

    2. No, because permanent inactivation requires steps that would cut off the possibility of listening in on communications to or from the tapped premises, and simply turning off the equipment does not meet this standard.

    3. No, because the warrant authorizing the later wiretap depended on information obtained from the earlier wiretap which was the result of a direct violation of the extension application and inactivation statutes.

    4. No, because a delay of that length requires a satisfactory explanation, and inadequate police procedures do not constitute a valid excuse.

    Court’s Reasoning

    The Court reasoned that the clear language of CPL 700.40 mandates that extension applications be made before the original warrant’s expiration. The Court rejected the People’s argument to treat the extension application as a new, original application, emphasizing that this would circumvent the notice requirements of CPL 700.50(3). The Court also found that merely turning off the eavesdropping equipment did not satisfy the requirement of permanent inactivation, as it did not eliminate the potential for unauthorized eavesdropping. Regarding the admissibility of evidence from wiretap six, the Court found that the warrant authorizing it depended on information from wiretap five, which was obtained in violation of the extension and inactivation statutes. The Court emphasized that the extension and inactivation requirements reflect a policy of limiting the use of eavesdropping devices. Finally, the Court held that the delay in sealing the tapes violated CPL 700.50(2), as the People failed to provide a satisfactory explanation for the delay. The Court cited People v. Basilicato, 64 NY2d 103, 116 stating that “because of the potential for abuse, it is the People who must provide a satisfactory explanation for untimely sealing.”

  • People v. Munger, 33 N.Y.2d 349 (1974): Admissibility of Evidence Derived Independently from Allegedly Illegal Wiretaps

    People v. Munger, 33 N.Y.2d 349 (1974)

    Evidence derived independently from an alleged illegal wiretap is admissible if the conviction is not based on the wiretap evidence itself and a plausible explanation exists for the absence of wiretap recordings.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for attempted robbery and shooting, holding that the defendant’s admissions, coupled with independent evidence of the victim’s death by criminal means, were sufficient for conviction. The court addressed the defendant’s claim that evidence was tainted by illegal wiretapping, finding that the lower courts had resolved this issue against him. The court also ruled that the People’s failure to produce certain wiretap recordings did not require reversal, given a plausible explanation (tapes erased for reuse) and the provision of summaries to the defense. Ultimately, the court found the validity of the wiretap warrants academic because the conviction was based on independently obtained evidence, not the wiretap evidence itself.

    Facts

    The defendant was convicted of attempted robbery and shooting, resulting in the victim’s death. Key evidence included the defendant’s own admissions regarding his involvement in the crime. The defense argued that the prosecution’s evidence was tainted by illegal wiretapping. The People presented an explanation for the absence of certain wiretap recordings, stating the tapes had been erased for reuse. Summaries of these missing tapes were offered to the defense.

    Procedural History

    The trial court convicted the defendant. The Appellate Division affirmed the conviction. The case then reached the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s admissions, coupled with independent evidence of the victim’s death by criminal means, were sufficient to support the conviction.

    2. Whether the People’s evidentiary leads, testimony, and evidence were tainted by illegal wiretapping, thereby requiring reversal of the conviction.

    3. Whether the People’s inability to produce recordings of certain intercepted conversations requires reversal, even with a plausible explanation for their absence and the provision of summaries to the defense.

    4. Whether the validity of the wiretap warrants is relevant when the defendant’s conviction was not based upon wiretap evidence, but upon independently derived information and evidence.

    Holding

    1. Yes, because the defendant’s admissions, when coupled with independent evidence of criminal means causing the victim’s death, provided a sufficient basis for conviction.

    2. No, because the lower courts resolved the issue of tainted evidence against the defendant, and the Court of Appeals could not find the testimony of the People’s witnesses incredible as a matter of law.

    3. No, because absent a showing of bad faith, the People’s inability to produce recordings does not require reversal, especially when a plausible explanation exists and summaries were offered to the defense.

    4. No, because in light of the finding that the conviction was not based on wiretap evidence, the validity of the warrants becomes an academic issue.

    Court’s Reasoning

    The court relied on Section 395 of the Code of Criminal Procedure and People v. Louis, 1 N.Y.2d 137, to support the sufficiency of the evidence based on the defendant’s admissions and independent evidence. Regarding the wiretapping claims, the court deferred to the lower courts’ findings on credibility and the admissibility of the evidence. The court distinguished the case from People v. De Curtis, 29 N.Y.2d 608, implying that the credibility of the People’s witnesses was not so questionable as to warrant reversal. The court cited United States v. Garcilaso de la Vega, 489 F.2d 761 (2d Cir.), to support the proposition that the absence of recordings does not automatically require reversal if a plausible explanation exists. The Court emphasized that there was no obligation to preserve wiretap recordings under the then-current Code of Criminal Procedure, contrasting it with the requirements under CPL 700.55. The key factor in the court’s decision was its determination that the conviction was based on independently obtained evidence, rendering the wiretap warrant issue moot. As the court stated, “in light of the finding that defendant’s conviction was not bottomed upon wiretap evidence, but upon information and evidence independently arrived at, the issue with respect to the validity of the wiretap warrants is rendered academic.” This highlights the importance of independent sources for evidence when wiretapping is in question.

  • 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. Pobliner, 32 N.Y.2d 356 (1973): Consequences of Wiretapping Attorney-Client Communications

    People v. Pobliner, 32 N.Y.2d 356 (1973)

    While intercepting attorney-client communications is improper, dismissal of an indictment is only warranted if the interception undermines the right to counsel and the prosecution directly or indirectly uses illegally obtained evidence to gain an unfair advantage.

    Summary

    Jay Pobliner was convicted of murdering his wife. A key issue on appeal was whether intercepted telephone conversations between Pobliner and his lawyers before the indictment warranted dismissal. The New York Court of Appeals affirmed the conviction, holding that although the wiretapping was improper, the defense was not so prejudiced as to require dismissal. The court found no indication the prosecution unfairly leveraged wiretap information. The defense waived a full hearing on the wiretap’s impact, and other issues raised, such as admitting crime scene photos and testimony about extramarital affairs, did not constitute reversible error. The court found that the drastic remedy of dismissing an indictment is reserved for only the most egregious violations of the right to counsel.

    Facts

    Brenda Pobliner was found murdered in her bed with multiple gunshot wounds. Her husband, Jay, had spent the previous evening with a friend, Iilis Jurisson. Jay later confessed to a friend, Joe Hall, that he shot his wife while she slept in Jurisson’s presence. After the murder, Jay took Jurisson to Manhattan, had breakfast with his parents, and went to work. After arriving at work, he called his wife. Receiving no answer, he called a neighbor, who discovered the body. He told the men where his automobile was parked that his wife was bleeding. The prosecution emphasized Jay’s “guilty knowledge” and his confession to Joe Hall. The murder weapon was never found, but the prosecution showed Pobliner previously purchased an unregistered pistol.

    Procedural History

    Following the murder, the police investigation focused on Jay. Unable to make headway, they obtained judicial eavesdropping orders for telephones in his parents’ apartment, where he was staying. Pobliner was indicted after Joe Hall revealed Pobliner’s confession. At the preliminary hearing, the defense moved for a hearing on the wiretap’s validity. The prosecutor stated that no wiretap evidence would be used directly. The court denied the motion but advised defense counsel to object if wiretap evidence was used indirectly during trial. Pobliner was convicted at the second trial, the first ending in a mistrial, and he appealed, arguing the wiretap warranted dismissal.

    Issue(s)

    1. Whether the interception of attorney-client communications before indictment warrants dismissal of the indictment.
    2. Whether the prosecutor improperly used information from the wiretap during cross-examination of a defense witness.
    3. Whether the trial court properly admitted photographs of the victim’s body.
    4. Whether testimony regarding the defendant’s extramarital affair was properly admitted.

    Holding

    1. No, because dismissal is a drastic remedy reserved for extreme cases where the interception undermines the right to counsel and prejudices the defense.
    2. No, because the defense failed to properly object and waived a full hearing on the issue.
    3. Yes, because the photographs were relevant to material issues in the case and were not solely intended to inflame the jury.
    4. Yes, because the evidence of the affair was relevant to motive.

    Court’s Reasoning

    The court acknowledged the wiretapping was improper but stated that dismissing the indictment is a drastic remedy, only appropriate when the interception undermines the right to counsel and the prosecution exploits the illegal evidence to gain an unfair advantage, citing Hoffa v. United States. The court distinguished State v. Cory, where dismissal was warranted because pervasive eavesdropping made a fair retrial impossible. Here, the court found no showing that the wiretap affected the defense’s trial strategy, questioning of witnesses, or evidence introduction. The prosecutor agreed to exclude wiretap conversations and derivatives, and hearings during trial addressed specific objections. The defense waived a full hearing on the wiretap’s legality, fearing further evidence might become admissible. The court found the admission of photographs of the victim relevant to disputed issues. They showed the victim was in a sleeping position when shot, corroborating Hall’s testimony. The photos also illustrated the deliberateness of the killing, supporting the prosecution’s theory. Similarly, the court found the testimony about Pobliner’s affair relevant to establishing a motive for the murder.

  • People v. Fein, 29 N.Y.2d 131 (1971): Admissibility of Wiretap Evidence Under Evolving Fourth Amendment Standards

    29 N.Y.2d 131 (1971)

    Evidence obtained from a wiretap, conducted pursuant to a court order that complied with then-existing state law, is admissible even if subsequent Supreme Court decisions altered the constitutional standards for such wiretaps, provided the seizure was lawful at the time it occurred and there was substantial compliance with later federal standards.

    Summary

    The case concerns the admissibility of wiretap evidence used to convict the defendant of bookmaking. The wiretap was authorized under New York law before the Supreme Court issued decisions that heightened Fourth Amendment scrutiny of wiretaps. The New York Court of Appeals held that the evidence was admissible because the wiretap was lawful under the standards prevailing at the time it was conducted and because the Omnibus Crime Control and Safe Streets Act of 1968 indicated a congressional policy of allowing judicially supervised wiretaps. The court emphasized that excluding the evidence would not serve the deterrent purpose of the exclusionary rule.

    Facts

    In 1966, the Mount Vernon Police Department received a tip about illegal betting activity at a public phone in George’s Pharmacy. Detectives observed the defendant, a known gambler, repeatedly using the phone despite having a private phone in his office. An officer overheard the defendant discussing baseball lines and odds. Based on this information, a court order was obtained to tap the phone line. Police monitored the tap, and Detective Burke overheard sports bets being placed. Officers entered the pharmacy with a search warrant, found the defendant using the phone, and discovered betting slips and a large sum of cash on his person and nearby.

    Procedural History

    The defendant was convicted in the City Court of Mount Vernon for bookmaking and possession of bookmaking records. He appealed, arguing the wiretap evidence was inadmissible due to constitutional and statutory violations. The New York Court of Appeals reviewed the case following evolving Supreme Court decisions on wiretapping.

    Issue(s)

    1. Whether the introduction of evidence obtained by wiretapping was constitutionally impermissible under evolving Fourth Amendment jurisprudence, specifically considering Katz v. United States and Berger v. New York.

    2. Whether the introduction of the wiretap evidence was prohibited by Section 605 of the Communications Act of 1934, as amended by the Omnibus Crime Control and Safe Streets Act of 1968.

    Holding

    1. No, because at the time the wiretap occurred, the intrusion did not violate the then-prevailing constitutional standards under Olmstead and the seizure was constitutionally permissible by 1966 standards. Later decisions are not retroactively applied. The court found any deviation from Berger and Katz to be harmless error.

    2. No, because the Omnibus Crime Control and Safe Streets Act of 1968 indicated a congressional policy of allowing judicially supervised wiretaps, and there was substantial compliance with the new standards.

    Court’s Reasoning

    The court reasoned that the relevant constitutional standard is that which prevailed at the time the evidence was seized. The Supreme Court had ruled that Katz v. United States and Berger v. New York, which established stricter standards for wiretaps, were not retroactive. Since the wiretap in this case occurred before Katz, and without physical intrusion, its fruits were admissible, per Kaiser v. New York. The court emphasized that “if the evidence was seized in a manner constitutionally permissible at the time of seizure, it will subsequently be allowed into evidence at the defendant’s trial even though changing constitutional interpretations have since made a similar seizure impermissible.” The court found that the wiretap order, while issued under a law later declared unconstitutional, closely approximated the standards in Berger. The court noted the presence of probable cause due to the extensive observation of the defendant’s suspicious activities.

    Regarding Section 605, the court acknowledged that Lee v. Florida had made evidence seized in violation of Section 605 inadmissible in state courts. However, the Omnibus Crime Control and Safe Streets Act of 1968, enacted shortly after Lee, authorized the interception of telephonic communications under comprehensive standards. The court interpreted Congress’s findings in Section 801 of the Act as an endorsement of introducing court-authorized wiretaps in state courts. It found that excluding the evidence based on Lee would enforce a statutory policy that had been substantially modified. To exclude the wiretap evidence in this case on the basis of Lee would, in effect, be enforcing a statutory policy, since substantially modified and no longer applicable.

  • Nader v. General Motors Corp., 25 N.Y.2d 560 (1970): Limits on Intrusion as Invasion of Privacy

    Nader v. General Motors Corp., 25 N.Y.2d 560 (1970)

    Under District of Columbia law, a claim for invasion of privacy based on intrusion requires unreasonably intrusive conduct designed to elicit information of a confidential nature not available through normal inquiry or observation.

    Summary

    Ralph Nader sued General Motors (GM) for invasion of privacy based on GM’s alleged attempts to intimidate him after learning of his forthcoming book criticizing GM’s automotive safety. The complaint detailed several intrusive actions. The New York Court of Appeals, applying District of Columbia law, held that while some of GM’s actions (like overzealous surveillance and wiretapping) could constitute an invasion of privacy, others (like general questioning and harassment) did not, as they didn’t seek confidential information through unreasonable means. The court clarified the scope of “intrusion” within the tort of invasion of privacy.

    Facts

    Ralph Nader, an author and automotive safety critic, was the target of an alleged intimidation campaign by General Motors (GM) after GM learned of his forthcoming book, “Unsafe at any Speed.” Nader alleged that GM’s agents engaged in the following activities: (1) interviewed acquaintances, casting aspersions on his character and views; (2) kept him under surveillance in public places; (3) had him accosted by women to entice him into illicit relationships; (4) made threatening phone calls; (5) tapped his phone and eavesdropped on private conversations; and (6) conducted a harassing investigation into his background.

    Procedural History

    Nader filed suit in New York, alleging four causes of action, including two for invasion of privacy. GM moved to dismiss the first two causes of action. The lower courts denied the motion to dismiss. GM appealed to the New York Court of Appeals by permission of the Appellate Division on a certified question regarding the legal sufficiency of the invasion of privacy claims.

    Issue(s)

    Whether, under District of Columbia law, the alleged actions by General Motors, including interviewing acquaintances, surveillance, attempts at entrapment, harassing phone calls, wiretapping, and a harassing investigation, constitute actionable invasions of privacy.

    Holding

    1. No, because interviewing acquaintances and casting aspersions on Nader’s character does not seek confidential information through unreasonable intrusion.
    2. No, because accosting by girls and harassing phone calls, though offensive, do not involve gathering private or confidential information.
    3. Yes, because unauthorized wiretapping and eavesdropping constitute a tortious intrusion under District of Columbia law.
    4. The court did not provide a conclusive yes or no, but stated that under certain circumstances, overzealous surveillance may be actionable, depending on the nature of the proof.

    Court’s Reasoning

    The court analyzed the scope of invasion of privacy under District of Columbia law, referencing cases like Pearson v. Dodd and Afro-American Publishing Co. v. Jaffe. The court emphasized that the right to privacy protects against unreasonable and serious interference with another’s interest in not having their private affairs known to others. The court differentiated between actions that merely annoy or harass and those that intrude into a person’s private affairs to gather confidential information. While actions like wiretapping and overzealous surveillance aimed at uncovering private details are actionable, general questioning or harassment, though potentially offensive, do not constitute an invasion of privacy unless they involve the gathering of private information through improper means.

    The court reasoned that information already known to others cannot be considered private. “Information about the plaintiff which was already known to others could hardly be regarded as private to the plaintiff.” The court also noted that while harassment may give rise to a claim for intentional infliction of emotional distress, that cause of action has different elements than invasion of privacy. As for surveillance, the court stated, “A person does not automatically make public everything he does merely by being in a public place”.

    The court found that because the complaint included allegations (wiretapping and possibly overzealous surveillance) sufficient to state a cause of action, the motion to dismiss was properly denied, even though other allegations were insufficient. The court clarified that the non-actionable allegations could still be pertinent to the claim of intentional infliction of emotional distress.

  • People v. Hunger, 23 N.Y.2d 444 (1969): Admissibility of Evidence Obtained from Illegal Wiretaps

    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.

  • People v. Kaiser, 21 N.Y.2d 86 (1967): Retroactivity of Fourth Amendment Protections in Wiretapping

    People v. Kaiser, 21 N.Y.2d 86 (1967)

    The Supreme Court’s decision in Berger v. New York, which imposed stricter Fourth Amendment requirements on eavesdropping, is applied prospectively only, and wiretap evidence obtained before Berger in substantial compliance with existing constitutional standards is admissible.

    Summary

    Thomas Kaiser was convicted of coercion, attempted extortion, and conspiracy to commit extortion based on wiretap evidence. He appealed, arguing that the wiretap evidence was inadmissible because the statute authorizing the wiretap, Section 813-a of the Code of Criminal Procedure, was struck down as unconstitutional by the Supreme Court in Berger v. New York. The New York Court of Appeals affirmed the conviction, holding that Berger should be applied prospectively only and that the wiretap order in Kaiser’s case complied with existing constitutional standards at the time it was issued. The court also addressed the issue of federal preemption under Section 605 of the Federal Communications Act, declining to exclude the evidence based on a perceived lack of federal enforcement.

    Facts

    Irving Holzman, an executive, was targeted for extortion. The extortionists demanded $25,000 and 25% of his business. Holzman contacted the Nassau County police, who, with his consent, recorded conversations between Holzman and Salvator Granello. Holzman’s daughter received a threatening call. Based on this, the District Attorney obtained a court order to wiretap Granello and Dino Conte’s phones. Conversations between Conte and Kaiser were recorded, implicating Kaiser in the extortion plot. Kaiser was arrested and indicted.

    Procedural History

    Kaiser was convicted in the trial court. Wiretap evidence was admitted over defense counsel’s objection. Kaiser appealed to the Appellate Division, which affirmed his conviction. Kaiser then appealed to the New York Court of Appeals by permission of the Chief Judge.

    Issue(s)

    1. Whether the Supreme Court’s decision in Berger v. New York, which struck down Section 813-a of the Code of Criminal Procedure, should be applied retroactively to exclude wiretap evidence obtained before the Berger decision.

    2. Whether wiretap evidence obtained in compliance with state law should be excluded under Section 605 of the Federal Communications Act.

    Holding

    1. No, because the purpose of the exclusionary rule is to deter future police misconduct, and applying Berger retroactively would not serve this purpose. The admission of the wiretap evidence did not affect the integrity of the fact-finding process.

    2. No, because the Supreme Court has held that the states are not required to exclude such evidence, and Congress did not intend to thwart state rules of evidence.

    Court’s Reasoning

    The court analyzed the Supreme Court’s decision in Berger v. New York, which found Section 813-a of the Code of Criminal Procedure unconstitutional on its face due to its broad scope and lack of procedural safeguards. However, the court determined that Berger should be applied prospectively only, relying on the standards set out in Stovall v. Denno for determining the retroactivity of constitutional rulings. These standards consider the purpose of the new rule, the reliance of law enforcement on the old standards, and the effect on the administration of justice of a retroactive application. The court emphasized that the wiretap order in Kaiser’s case complied with existing constitutional standards at the time it was issued, including a showing of probable cause. The court stated: “The purpose of the exclusionary rule, to which Berger made eavesdropping evidence subject, is deterrence of future police conduct. Applying Berger retroactively will not, therefore, undo the violation of the defendant’s rights which may have already taken place.”

    Regarding the Federal Communications Act, the court cited Benanti v. United States and Schwartz v. Texas, stating that due regard for federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence. The court also noted the lack of federal enforcement of Section 605 against state officials, suggesting a policy of nullification by federal officials. It stated: “Under these circumstances we decline to hold that wiretap evidence obtained in substantial compliance with the strictest provisions of the Constitution of the United States and of this State must be excluded in criminal prosecutions in this State.”

    The court further clarified the proper procedure for obtaining wiretap orders post-Berger, requiring particularity in describing the conversations sought, provisions for a return, strict time limitations, termination as soon as the conversations are seized, and allegations of exigent circumstances justifying the waiver of notice. The court concluded by emphasizing the need for regulated intrusion to combat organized criminal activity.