People on Information of Hargraves v. Basciano

• Decision Date: 26 March 1970
• Citation: 62 Misc.2d 546,309 N.Y.S.2d 615
• Parties: The PEOPLE of the State of New York on the Information of Det. Thomas HARGRAVES, Complaint, v. Vincent BASCIANO, Defendant.
• Court: New York Court of Special Sessions

Page 615

309 N.Y.S.2d 615

62 Misc.2d 546

The PEOPLE of the State of New York on the Information of

Det. Thomas HARGRAVES, Complaint, v. Vincent BASCIANO, Defendant.

Yonkers Court of Special Sessions.

March 26, 1970.

Carl A. Vergari, Dist. Atty., Westchester County, by John A. Mastrangelo, Asst. Dist. Atty., for the People.

Lanna, Coppola & Rosato, by Vincent W. Lanna, Yonkers, for defendant.

ROBERT W. CACACE, Judge.

This is a motion to suppress based on the ground that a search warrant was illegally obtained for the reason that the issuance of the warrant was based upon information obtained by the Police as a result of a Court ordered tap on Defendant's telephone. The gravamen of the motion is that by virtue of Title 47, Section 605 of the Federal Communications Act (U.S.Code, tit. 47) it is a violation of Federal Law to intercept a telephone communication, whether that interception is sanctioned by the legislature and the courts of a state or not. Section 605 was enacted in 1934, and the pertinent parts read as follows:

'* * * (N)o person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents substance, purport, effect or meaning of such intercepted communication to any person; * * *'.

The Supreme Court in Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, determined that Section 605 barred the use of information obtained by a wire tap in the Federal Courts, and in a further decision the Supreme Court held that evidence obtained via wire tap was inadmissible in a Federal proceeding, even though the evidence was obtained by State Officers under a warrant issued by virtue of a State Wire Tap Statute (Section 813--a of the Code of Criminal Procedure), and without the knowledge or acquiescence of Federal authorities (Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126.) Subsequent to the Benanti case (supra) the Supreme Court held that any evidence obtained by State Officers during a search would, if done in such a manner as to violate the Defendant's immunity from unreasonable search and seizure under the Fourth Amendment, be inadmissible in a Federal proceeding, irrespective of scienter on the part of the Federal authorities (Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, decided June 27, 1960.

The right to use evidence obtained in violation of Title 47, Section 605, United States Code, in State Courts, however, remained inviolate as a result of a 1952 decision of the Supreme Court, which held that Section 605 did not apply to the use of information obtained as a result of eavesdropping in State Court proceedings (Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231.)

The State of New York had since 1942 allowed wire tapping as a means of obtaining evidence by virtue of Section 813--a of the Code of Criminal Procedure. On June 12, 1967, Section 813--a of the Code of Criminal Procedure was declared to be in violation of the Federal Constitution, (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040,) and the Statute was subsequently repealed.

The question of interception of telephone communications was again presented to the Supreme Court in 1968 in the matter of Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166. In that case, a telephone tap was made on a party line connected to Defendant's telephone. The tap was directly into the line of the other party's phone, so that Defendant's conversations could be overheard without lifting the neighbor's receiver. The State of Florida had no legislation prohibiting wire tapping and the use of the fruits of any tap in court. Information obtained as a result of the tap was used to convict Defendant in a Florida Court. The Supreme Court specifically reversed its decision in Schwartz v. Texas (supra) and strongly indicated that all wire taps were in violation of Title 47, Section 605, United States Code and, therefore, inadmissible in any state proceeding, whether the state had allowed a judicially sanctioned wire tap or not.

On page 380, 88 S.Ct. on page 2098, the Court in response to the argument that there were no Federal or State Statutes applicable in Florida stated:

'We disagree. There clearly Is (emphasis by Court) a federal statute, applicable in Florida and every other state, that made illegal the conduct of the Orlando authorities in this case. And that statute, we hold today, also made the recordings of the petitioners' telephone conversations inadmissible as evidence in the Florida Court.'

In Note #9 on page 385 of the same decision, the Court referring to Section 813--a of the Code of Criminal Procedure, reenforces with approbation the decision of Judge Hofstadter made in 1958, In Matter of Interception of Telephone Communications, 9 Misc.2d 121, 170 N.Y.S.2d 84, by saying: '(I)t cannot be lawful to authorize what is an illegal act * * * (I)f the Police Officer violates the Federal Statute by tapping wires notwithstanding a warrant issued out of this court pursuant to New York Law--if that act be illegal--those who set the action in motion have condoned if not instigated illegality.' Again in the same note, the Court adopts the language of Judge Waterman in Pugach v. Dollinger, 2 Cir., 277 F.2d 739, aff'd per curiam 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678, wherein the Federal Court refused to enjoin a New York State District Attorney from tapping in futoro by stating: 'It is therefore presumptuous to assume that any New York State trial judge will acquiesce to the commission of a crime against the United States in his presence in his courtroom by a witness testifying under oath.' 277 F.2d at 745.

392 U.S. on pages 385 to 386, 88 S.Ct. on page 2101 of the Lee decision, it is clearly stated that all courts and all judges in the United States are bound to honor all Federal...