People v. Brenes

• Decision Date: 06 July 1976
• Citation: 385 N.Y.S.2d 530,53 A.D.2d 78
• Parties: The PEOPLE of the State of New York, Respondent, v. Miguel BRENES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 530

385 N.Y.S.2d 530

53 A.D.2d 78

The PEOPLE of the State of New York, Respondent, v. Miguel BRENES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 6, 1976.

Lawrence Stern, New York City, of counsel (Diller, Schmukler & Asness, New York City, Attys.), for appellant.

Daniel J. Sullivan, New York City, of counsel (Barbara Gonzo, with him on the brief, Mario Merola, Dist. Atty.), for respondent.

Before MARKEWICH, J.P., and MURPHY, BIRNS, CAPOZZOLI and NUNEZ, JJ.

MURPHY, Justice.

After receiving certain information from allegedly reliable informants, defendant became the target of a narcotics investigation in December, 1971. It was ascertained that he resided in a particular apartment in The Bronx and was also the probable tenant of another one, two floors above his actual residence. An eavesdropping warrant was obtained from a Supreme Court Justice in April, 1972, and a search warrant was obtained and executed some three weeks later. A substantial quantity of narcotics as well as cutting and packaging paraphernalia was seized. Defendant was arrested and allegedly made certain inculpatory statements. Following the denial of his motion to suppress the physical evidence seized and the admissions assertedly made, defendant pleaded guilty to attempted possession of a dangerous drug in the first degree and, pursuant to his plea bargain, was sentenced to an indeterminate term of imprisonment not exceeding seven years. Execution of the sentence has been stayed pending determination of the instant appeal involving the propriety of the orders denying the suppression motion.

The dangers and susceptibility to abuse inherent in unrestrained electronic surveillance are too well known and documented to require elaboration. Certainly in the year of our Bicentennial we should remember some of the reasons for our birth and require only the most exacting and meticulous standards before an intrusion into our precious right of individual privacy is permitted. As Justice Douglas succinctly stated in his concurring opinion in Berger v. New York, 388 U.S. 41, 64, 87 S.Ct. 1873, 1886, 18 L.Ed.2d 1040:

'I also join the opinion because it condemns electronic surveillance, for its similarity to the general warrants out of which our Revolution sprang and allows a discreet surveillance only on a showing of 'probable cause'. The safeguards are minimal if we are to live under a regime of wiretapping and other electronic surveillance.'

In the instant case the People failed to establish that 'normal investigative procedures' were unavailing. (CPL § 700.15(4).) The police officers as well as the informers gained access to the building and actually observed alleged couriers entering and exiting both apartments. A 'buy' was even arranged, but could not be concluded because the police inexplicably proposed the use of a female operative, but found none that spoke Spanish. In sum, it appears from the record that 'normal investigative procedures' were or could have been successful and the use of the wiretap was merely a useful additional tool. Accordingly, it should never have been authorized.

But even assuming, arguendo, that the wiretap warrant was lawfully issued and that the claimed technical violations of the statute (e.g., the warrant exceeded the 30-day limitation and failed to provide for termination of interception after attainment of the authorized objective, the applicant failed to establish the reliability of his informant, the return was untimely and insufficient notice thereof was given) are ignored or meritless, the suppression motion should have been granted for a more fundamental reason: the total and complete disregard of the minimization standard specified by the statute and contained in the pertinent warrant in issue.

The People concede that the electronic interception pursuant to the warrant was done entirely automatically. Though the monitoring officers themselves may have turned down the volume on their earphones when a non-pertinent call was intercepted, the electronic process of the telephone ring activated taping machines which, without human intervention or judgment, recorded each and every conversation over the defendant's telephone. These machines were never turned off during the 20 days of tapping (except, during a 14-hour period, when the ruse of an 'inoperable phone' was used to permit a 'repair man' to install a 'bug' in the apartment). The police tapped and taped every single telephone conversation in full, including those concededly non-pertinent. Under such circumstance, I deem a mathematical computation of the number of pertinent or non-pertinent calls to be completely irrelevant. In short, the agents completely ignored their statutory responsibility, resulting in a flagrant violation of defendant's constitutional rights.

If we are '(t)o guard against the realization of Orwellian fears' (United States v. Marion, 2 Cir., 535 F.2d 697, 698), strict constitutional and statutory standards for the permissible use of electronic surveillance operations must be complied with.

Admittedly, there are conceptual and practical difficulties in applying the Fourth Amendment to wiretapping and other mechanical devices used for the overhearing of conversations. (See, generally, Past-Authorization Problems in The Use of Wiretaps, etc., 61 Cornell Law Review 92, Et seq.) Nevertheless, given the amendment's applicability, all unreasonable searches and seizures are proscribed. And, in my view, nothing could be more unreasonable than the total interception and recording of all conversations over a designated telephone or at a specified location. In full recognition of the unconstitutionality of such prohibited behavior by any law enforcement official, both the federal and the New York statutes require bona fide efforts to minimize the interception of conversations falling outside of the ambit of an authorized warrant. (See 18 U.S.C. § 2518(5); CPL § 700.30(7).) No such effort at minimization was even attempted here. The blatant violation of the statute by the police mandates total suppression of all monitored conversations and of the tainted fruits thereof as the only effective deterrent against such egregious misconduct. (Cf. United States v. Principie et al., 2 Cir., 531 F.2d 1132.)

The judgment and the orders denying the motions to suppress should be reversed on the law and the indictment dismissed.

Judgment, Supreme Court, Bronx County, rendered on June 5, 1975, and orders of said court entered on December 27, 1973 and March 12, 1975, respectively reversed, on the law, the motions to suppress evidence granted, and the indictment dismissed.

CAPOZZOLI, J., concurs.

BIRNS, J., concurs in an opinion in which CAPOZZOLI, J., also concurs.

MARKEWICH, J.P., and NUNEZ, J., dissent in an opinion by NUNEZ, J.

BIRNS, Justice (concurring):

There was indeed a gross failure on the part of the police to minimize the telephonic conversations they were authorized to intercept. The Criminal Procedure Law, section 700.30(7) directs, Inter alia, that such police activity 'shall be conducted in such a way as to minimize the interception of conversations not otherwise subject to eavesdropping . . ..'

Similar provision is to be found in federal law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 reads: 'Every order and extension thereof shall contain a provision that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this statute.' (18 U.S.C. § 2518(5).)

Nothing in article 700 of the Criminal Procedure Law or Title 18 of the United States Code, each of which is concerned with the issuance and execution of wiretap warrants provides any sanction in the event of failure to meet this statutory obligation.

It has been observed: 'Whether the violation of 'minimization' provisions requires . . . across-the-board suppression or whether .. . conversations that the order permitted to be seized may be admitted is a question which has divided both the federal and New York courts.' (United States v. Principie, 531 F.2d 1132, at page 1139 (2d Cir. 1976).)

For an excellent analysis of federal and New York State cases on this point, see, People v. Vario, Sr., et al. (Sup.Ct., Kings Co., Mollen, J.), N.Y.L.J., June ---, 1976. (Filed June 14, 1976, Indictment No. 10647/72.)

In the case before us, as Justice Murphy noted, 'The People concede that the electronic interception pursuant to the warrant was done entirely automatically. Though the monitoring officers themselves may have turned down the volume on their earphones when a non-pertinent call was intercepted, the electronic process of the telephone ring activated taping machines which, without human intervention or judgment, recorded each and every conversation over the defendant's telephone. These machines were never turned off during the 20 days of tapping . . .. The police tapped and taped every single telephone conversation in full, including those concededly non-pertinent.'

The District Attorney seeks to justify this failure to minimize the telephone interception on the ground that the criminal activity under investigation involved many individuals and that 'where conversations are in code or a foreign language, a more extensive interception of conversations is justified owing to the difficulty in determining which conversations are pertinent or non-pertinent.' (Respondent's Brief, pp. 24--25.)

The District Attorney in the case at bar was not using telephonic interception as a technique to determine whether or not a conspiracy existed in which Brenes was a party. (United States v. Sisca, D.C., 361 F.Supp. 735, 745, Aff'd on other grounds, 503 F.2d 1337 (2nd Cir.), Cert. denied 419 U.S. 1008, 95 S.Ct. 328; 42 L.Ed.2d 283 (1974); Compare People v. Vario, Sr., et al., supra.) The court order, which must be strictly...