United States v. Lilla

• Decision Date: 15 March 1982
• Docket Number: No. 81-CR-53 to 81-CR-55.,81-CR-53 to 81-CR-55.
• Citation: 534 F. Supp. 1247
• Parties: UNITED STATES of America, v. Michael LILLA, Mark Lilla, Robert Lilla, Douglas Pintka a/k/a "Dougan", Raymond C. Colehamer a/k/a "Charlie", Christopher Burch, Robert Moffre, Peter Santos a/k/a "Pete", Louis Ferraro, David Hine, Richard Strack, Michael Bouck and Frank Benson. UNITED STATES of America v. Mark LILLA, Robert Lilla and Everett Garnsey. UNITED STATES of America v. Donald BENSON.
• Court: U.S. District Court — Northern District of New York

534 F. Supp. 1247

UNITED STATES of America, v. Michael LILLA, Mark Lilla, Robert Lilla, Douglas Pintka a/k/a "Dougan", Raymond C. Colehamer a/k/a "Charlie", Christopher Burch, Robert Moffre, Peter Santos a/k/a "Pete", Louis Ferraro, David Hine, Richard Strack, Michael Bouck and Frank Benson.

UNITED STATES of America v. Mark LILLA, Robert Lilla and Everett Garnsey.

UNITED STATES of America v. Donald BENSON.

Nos. 81-CR-53 to 81-CR-55.

United States District Court, N. D. New York.

March 12, 1982.

As Amended March 15, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George H. Lowe, U. S. Atty., N. D. N. Y., Albany, N. Y., for plaintiff; George A. Yanthis, Asst. U. S. Atty., Albany, N. Y., of counsel.

George J. Camino, Schenectady, N. Y., for defendant Michael Lilla; Guido A. Loyola, Schenectady, N. Y., of counsel.

O'Connell & Aronowitz, P. C., Albany, N. Y., for defendant Mark Lilla; Stephen R. Coffey, Albany, N. Y., of counsel.

Parisi, Delorenzo, Gordon, Pasquareiello & Weiskopf, P. C., Schenectady, N. Y., for defendant Robert Lilla; John R. Massaroni, Schenectady, N. Y., of counsel.

Elena C. Vaida, Albany, N. Y., for defendant Douglas Pintka.

E. Stewart Jones, Jr., Troy, N. Y., for defendant Raymond Colehammer.

William J. Gray, Albany, N. Y., for defendant Christopher Burch; Laurie B. Kurtzman, Albany, N. Y., of counsel.

McDermott & Cheeseman, Albany, N. Y., for defendant Richard Strack; Paul E. Cheeseman, Albany, N. Y., of counsel.

Higgins, Roberts, Beyerl & Coan, P. C., Schenectady, N. Y., for defendant Michael Bouck.

Jerome K. Frost, Troy, N. Y., for defendants Frank Benson and Donald Benson.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

The defendants have been indicted for allegedly violating various federal laws concerning the trafficking of cocaine and marijuana. Following their arraignments, the defendants moved to suppress certain evidence derived from several wiretaps which had been authorized by New York State judges pursuant to New York law and which had been monitored by the New York State Police. The grounds asserted in these motions pertain to the issuance, extension, and execution of the wiretaps, and to various post-interception matters concerning the same. In addition to challenging the electronic surveillance, two defendants moved to suppress statements which they had made to law enforcement officers following their arrests. This Court duly presided over a suppression hearing with respect to both sets of motions, and also conducted an in camera proceeding in regard to a confidential informant.

Based upon the evidence adduced at the hearing, and upon the papers and arguments presented by the parties, this Court now concludes that the motions to suppress the wiretap evidence should be denied, and that the motions to suppress certain statements should be granted.

I. ELECTRONIC EAVESDROPPING

Before addressing the arguments regarding electronic surveillance, it is necessary to consider the choice of law problems presented here. The issue concerns the extent to which New York, or federal, law governs the admissibility in this federal prosecution of evidence derived from the State wiretaps.

The Second Circuit has explored this question on numerous occasions. See, e.g., United States v. Vasquez, 605 F.2d 1269, 1280 n.26 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979); United States v. Sotomayor, 592 F.2d 1219, 1224-26 (2d Cir. 1979); United States v. Fury, 554 F.2d 522, 525 n.3 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978); United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied sub nom., 429 U.S. 980, 1051, 1066, 97 S.Ct. 493, 796, 50 L.Ed.2d 589, 783 (1976), 430 U.S. 982, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States v. Marion, 535 F.2d 697, 702 (2d Cir. 1976); United States v. Manfredi, 488 F.2d 588, 598 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974). See also S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News, 2112, at 2187. What emerges from these cases is the requirement that, to be controlling, State wiretap guidelines must, at the very least, be as stringent as the requirements of federal law, which are contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, and in the Fourth Amendment to the Constitution of the United States. Thus, initially, the contested wiretaps must be measured against both federal and State law. Where, however, State standards are more stringent than federal law, a federal court is obliged to apply only those requirements of State law that are intended to protect a person's right of privacy. These requirements include conditions for the issuance and execution of eavesdropping warrants. A federal court does not apply those more stringent State laws that govern primarily evidentiary matters or the preservation of evidence after interception, such as the sealing of tapes. Finally, where State law governs, a federal court may look to federal law for guidance if State statutory and decisional law supply inadequate information on a particular issue.

With these principles in mind, the Court shall now turn to the objections raised by the defendants.

A. Issuance of the Initial Warrants

The defendants have made a number of arguments directed at whether two eavesdropping warrants were properly issued. In regard to these claims, the following facts have been presented to this Court.

On April 23, 1980, the District Attorney of Schenectady County applied to the New York Supreme Court, Schenectady County, for an eavesdropping warrant to investigate violations by Michael Lilla, and others, of New York Penal Law §§ 105.10 (Conspiracy, Second Degree), 221.55 (Criminal Sale of Marijuana, First Degree). Accompanying his application was an affidavit by New York State Trooper Kenneth T. Cook, dated April 23, 1980. Trooper Cook, who was assigned to a narcotics unit at Troop G, stated in his affidavit that he had initiated an investigation into narcotics trafficking by Michael Lilla, who worked at Unified Auto and Equipment, Inc., or Better Body Works, in Schenectady, New York, and who resided in Rexford, New York. In April, 1980, Cook stated, he received information from a confidential informant to the effect that Lilla was selling illegal drugs, including cocaine and marijuana, and that Lilla used the telephones at his place of employment and at his residence to arrange with other persons the sale of these drugs. Additionally, the informant told Cook that he could make arrangements with Lilla over the telephone to purchase drugs. Thereafter, on April 10, 1980, the confidential informant came to Cook's office to telephone Lilla and buy illicit drugs. With the permission of the informant, Cook, using an extension telephone, dialed the telephone listing for Unified Auto, and subsequently overheard a conversation in code between the informant and a person whom the informant identified as Michael Lilla. During the course of the conversation, a person who responded to the name "Mike" said that although "Flake" was unavailable at that time, someone was going to bring some up in a week or two, and that he could meanwhile sell the informant "Lumbo." In this context, "Mike" also mentioned that "we" had "all kinds of people" who owed "us" money for "Flake." "Mike" then asked the informant to come to his place of business that day, for the apparent purpose of purchasing "Lumbo." "Mike" stated further that if he was not at work when the informant came to make the purchase, the informant could call him at home. The conversation, a tape of which this Court heard in camera, then ended. Interpreting the code used by the parties, Cook, relying upon his experience and training as a narcotics investigator, stated in his affidavit that "Flake" signified cocaine and that "Lumbo" denoted marijuana.

Following this conversation, Cook averred in his affidavit, the informant and Cook, in an undercover capacity, proceeded later that day to Unified Auto, where Cook purchased a pound of marijuana from a person who identified himself as Mike Lilla, and discussed with him the possibility of purchasing cocaine. Lilla informed Cook that cocaine would be available in a week or two and that his brother was in Florida arranging for the acquisition of "coke" and "grass." He also advised Cook to telephone him at Unified Auto or at his home to discuss the purchase of additional drugs.

Relying upon these contacts with Michael Lilla, Cook set forth in the affidavit his belief that his investigation of illicit drug trafficking apparently involved persons other than Michael Lilla, and that wiretapping was the "only investigative method ... to determine the identity of these other persons" and to gather "evidence of their guilt." Cook went on to state, based upon his experience, that it is common for persons engaged in narcotics trafficking to conduct their business on the telephone at irregular hours during the day and night and through the use of code. Furthermore, Cook expressed his opinion that although probable cause existed for the issuance of an arrest or search warrant, it would be better to monitor conversations and determine the identity of other participants in the conspiracy.

Based upon the District Attorney's application and Cook's supporting affidavit, Supreme Court Justice Dominick J. Viscardi issued an eavesdropping warrant for the seizure of conversations of Michael Lilla and other involved persons on a telephone number listed to Unified Auto and on a telephone number listed to Adrian Lilla, Michael Lilla's father, with whom Michael Lilla resided in Rexford, New York. According to the warrant, the Justice found reasonable cause to believe that certain conversations either would constitute evidence of...