People v. Bialostok

• Decision Date: 25 February 1993
• Citation: 610 N.E.2d 374,80 N.Y.2d 738,594 N.Y.S.2d 701
• Parties: , 610 N.E.2d 374 The PEOPLE of the State of New York, Respondent, v. Milton BIALOSTOK, Appellant. The PEOPLE of the State of New York, Respondent, v. Lawrence SCOCCO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 701

594 N.Y.S.2d 701

80 N.Y.2d 738, 610 N.E.2d 374

The PEOPLE of the State of New York, Respondent, v. Milton BIALOSTOK, Appellant.

The PEOPLE of the State of New York, Respondent, v. Lawrence SCOCCO, Appellant.

Court of Appeals of New York.

Feb. 25, 1993.

Kartagener & Stavis, New York City (Steven R. Kartagener and Roger L. Stavis, of counsel), for appellant in the first above-entitled action.

Denis Dillon, Dist. Atty. of Nassau County, Mineola (Douglas Noll and Bruce E. Whitney, of counsel), for respondent in the first and second above-entitled actions.

Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson and Howard M. Miller, of counsel), for appellant in the second above-entitled action.

OPINION OF THE COURT

SIMONS, Acting Chief Judge.

Defendants have been convicted on gambling and conspiracy charges based, in part, on evidence derived from electronic monitoring of two telephone lines used to transmit bets. On these appeals they question whether a pen register ¹ having the additional capacity to monitor conversations should be treated as an eavesdropping device ² under the Criminal Procedure Law and therefore permitted only when a Magistrate has issued a warrant based on probable cause. We hold that unless a warrant is obtained for instruments such as these, which were capable of monitoring conversations, the evidence must be suppressed. In these cases, however, the error was harmless.

Defendant Scocco also contends that suppression is required in his case because law enforcement officials failed to meet the requirement of CPL 700.50(3) that written notice of a wiretap be given within 90 days of a warrant's termination. Because he received adequate informal notice through his attorney within the applicable time period, suppression is not required. Accordingly, the order of the Appellate Division should be affirmed in each case, 178 A.D.2d 537, 577 N.Y.S.2d 870, 178 A.D.2d 570, 578 N.Y.S.2d 105.

I

Defendants and three others were indicted following an investigation of three "wire rooms" where bets were being taken over the telephone. They challenge the lawfulness of the electronic monitoring of the telephone lines at one of them. In late November of 1986, an investigator installed electronic devices and monitoring telephones on two lines servicing the room. Each device was to serve as a pen register recording the telephone numbers dialed. Under the law at that time, a warrant based on probable cause was required for an eavesdropping device (CPL 700.15) but none was needed to install a pen register. ³ Numbers recorded by the devices over the next several days were then used to support an application for an eavesdropping warrant to monitor conversations on the two lines. The warrant was issued and the investigator returned to the monitoring equipment, where, by simply attaching an audio cable, a tape recorder and a wire to activate the recorder's remote start, he converted the previously installed units into listening devices. Calls were monitored from December 12 until December 22 and the evidence obtained was used by the People to prosecute defendants and their associates.

The nature of the equipment used on the two lines was first discovered at trial during the testimony of the investigator who installed it. Unlike the traditional pen register, the equipment employed here had audio capacity and thus defendants contended that the monitors were really eavesdropping devices. Though no evidence was introduced to suggest any conversations were heard or recorded prior to the December 12 warrant, defendants argued that the technological capacity of the devices brought them within the eavesdropping statute and required that an eavesdropping warrant be obtained prior to installation. The Trial Judge ruled that no warrant was needed because the devices were used solely as pen registers. The Appellate Division agreed, relying on the testimony of the installer that he had "disabled" the audio function at installation and that it had remained disabled throughout the period prior to the warrant.

II

Analysis begins with an understanding of why pen registers were exempted from the warrant requirement in the first place and why they continue to be treated differently from eavesdropping devices in the statutory scheme (compare, CPL 700.15, which requires evidence of probable cause for an eavesdropping warrant, and CPL 705.10, which permits a judicial order authorizing a pen register upon a showing of reasonable suspicion). Both the United States Supreme Court and this Court have found that use of the pen register does not raise constitutional concerns (see, Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 [applying the 4th Amendment]; People v. Guerra, 65 N.Y.2d 60, 489 N.Y.S.2d 718, 478 N.E.2d 1319 [applying N.Y. Const., art. I, § 12]. Underlying those holdings was a determination that a pen register was incapable of intruding on a legitimate expectation of privacy because it recorded only phone numbers dialed and disclosed nothing more than what phone users voluntarily conveyed to the telephone company in the ordinary course of business (Smith v. Maryland, supra, 442 U.S. at 744, 99 S.Ct. at 2582). Citizens have a legitimate expectation of privacy in the content of their phone conversations (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040), but in the view of the Smith Court, no such expectation could attach to information so knowingly and routinely turned over to a third party. Central to the Court's analysis was the pen register's limited capabilities and the fact that unlike a listening device it does not "acquire the contents of communications" (442 U.S. at 741, 99 S.Ct. at 2581 [emphasis in original]. The Court, in making the distinction, quoted from its earlier decision in United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376: " 'These devices do not hear sound. They disclose only the telephone numbers that have been dialed * * * Neither the purport of any communication * * * nor whether the call was even completed is disclosed by pen registers' " (Smith v. Maryland, supra, 442 U.S. at 741, 99 S.Ct. at 2581).

The device as used here undermines the distinction between a pen register and a listening device. This device did not have capabilities limited to traditional pen registers only. In fact, it acquired the "contents of communications" from the moment it was installed. The addition of the audio cord and the tape recorder after the warrant was issued merely made accessible what was already being acquired.

The People's case is no stronger because the audio function was "disabled" and no conversations were actually overheard. The issue is not the reasonableness of the search but statutory compliance. If a warrant is required by law, the fact that the officers behaved reasonably without one is unavailing. The purpose of the warrant requirement is to interpose a neutral and detached Magistrate between citizens and the police to protect individuals from having to rely on the good conduct of the officer in the field for the protection of their right to be free of unreasonable searches. As Justice Jackson put it: "When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent" (Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436).

This Court has consistently recognized the " 'insidiousness of electronic surveillance' " (People v. Liberatore, 79 N.Y.2d 208, 213, 581 N.Y.S.2d 634, 590 N.E.2d 219; People v. Schulz, 67 N.Y.2d 144, 148, 501 N.Y.S.2d 12, 492 N.E.2d 120), and we have made plain that "[o]ur interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect" (People v. Washington, 46 N.Y.2d 116, 121, 412 N.Y.S.2d 854, 385 N.E.2d 593). In People v. Gallina, 66 N.Y.2d 52, 495 N.Y.S.2d 9, 485 N.E.2d 216, for instance, we declined to condone the decision by law enforcement officials to turn off a listening device rather than permanently inactivate it during a period when a warrant was not in effect. As we said there, "[t]hat no unauthorized eavesdropping may have occurred is beside the point, because it is the potential for abuse that is the focus of analysis" (id., at 58, 495 N.Y.S.2d 9, 485 N.E.2d 216 [emphasis added]. In light of the broad legislative intent of article 700 to safeguard individual privacy and the potential for abuse embodied in the technology used here, we distinguish this more sophisticated technology from earlier pen registers. The traditional pen register was, to a large extent, self-regulating. Neither through police misconduct nor through inadvertence could it reveal to anyone any information in which the telephone user had a legitimate expectation of privacy. The same is not true of the device used here. This is a technology that has the capacity, through willful use or otherwise, to intrude on legitimately held privacy, and it is the warrant requirement, interposing the Magistrate's oversight, that provides to citizens appropriate protection against unlawful intrusion. Thus, we hold the devices employed here were subject to the warrant requirement and installation of them without one was unlawful.

Nonetheless the failure to obtain a warrant during the initial period the devices were connected was harmless. Investigators obtained information about numbers called during that period and used it in support of their application for the eavesdropping warrant. But had that information been suppressed, as it should have been, other evidence supporting the application, including evidence acquired by surveillance and actually placing bets through the wire room, provided more than sufficient grounds for the Magistrate's finding of...