People v. Brenes

• Decision Date: 14 June 1977
• Citation: 42 N.Y.2d 41,396 N.Y.S.2d 629,364 N.E.2d 1322
• Parties: , 364 N.E.2d 1322 The PEOPLE of the State of New York, Appellant, v. Miguel BRENES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 629

396 N.Y.S.2d 629

42 N.Y.2d 41, 364 N.E.2d 1322

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

Court of Appeals of New York.

June 14, 1977.

Mario Merola, Dist. Atty. (Daniel J. Sullivan, New York City, of counsel), for appellant.

Lawrence Stern and Martin L. Schmukler, New York City, for respondent.

FUCHSBERG, Judge.

In April of 1972, Miguel Brenes became the subject of an eavesdropping order obtained by the New York City police in the course of its investigation of Brenes' alleged narcotics violations. Upon the basis of the information garnered from the eavesdrop so undertaken, a search warrant was issued and executed. Brenes was thereafter arrested and indicted for narcotics violations. After denial of his motion to suppress the intercepted conversations, derivative physical evidence and inculpatory statements, he pleaded guilty to attempted possession of a dangerous drug in the first degree.

Upon review of the orders denying suppression, a sharply divided panel of the Appellate Division reversed and directed dismissal of the indictment, a majority finding that a "blatant" violation of the minimization requirements of the wiretap statute had occurred and that the appropriate remedy under the circumstances was total suppression of all conversations and the fruits thereof (53 A.D.2d 78, 385 N.Y.S.2d 530). ¹ This appeal by the People is now before us pursuant to leave granted by a dissenting Justice at the Appellate Division (CPL 460.20, subd. 2, par. (a)).

In the main, the pertinent facts are as indisputable as they are revealing. Pursuant to the eavesdrop order itself, which named only Brenes as its target and which contained the statutorily required minimization directive, ² a tap was install on an instrument listed under his name and located at his apartment. At the hearing to suppress, the People offered the testimony of its chief monitoring agent, as well as that of two Assistant District Attorneys who had been instrumental in securing the order. Their evidence showed that, except for a 14-hour period during which an officer, posing as a telephone repairman, entered defendant's apartment to install a device in its kitchen, the tap was in continuous operation, 24 hours a day, during the 20 days of tapping.

With the help of a mechanical taping device which automatically activated a recorder whenever the subject phone was used, every conversation some 743 in all was recorded at full volume. When the chief monitoring agent would man the tapping plant in person, he did occasionally lower the volume of his overhearing device, but he never turned it off and never disconnected the machines, even when calls he overheard were obviously "nonpertinent." Only during the five to six hours each day when it was thought that Brenes would be asleep was the tapping plant unmanned, but since the machines continued to record all calls, each of which without exception was later replayed, all 29 conversations that took place during the expected sleeping hours were also recorded and replayed. Some conversations were in Spanish; they were later given to two Spanish-speaking officers who were assigned to the case for interpretation. When unmonitored conversations were replayed, they were described in logs that were kept as if they too had been contemporaneously monitored; no distinction was made between calls which were personally monitored and those which were not.

It is not surprising that, because of these indiscriminate practices, there was, and is, no dispute that entirely "innocent" calls were recorded and that, stored on the tapes, are entire conversations whose irrelevancy to the object of the wiretap should have been obvious to any monitor by any screening standard. Some calls involved children, others attorneys, and still others persons unnamed in the order and presumably unconnected in any way with the criminal enterprise under investigation. ³

Although the order itself did not provide that the tap should cease upon the obtaining of any particular information, the known purpose of the tap, according to the chief monitoring agent, was to locate the subject's "stash and connection". As the Assistant District Attorney in charge of supervising the monitoring officers put it, the objective was to obtain sufficient information to make a seizure of narcotics at Brenes' apartment or elsewhere. However, when examined as to whether that goal in actual practice served as a limitation, he candidly stated that "for the most part" he had "lost control" of the case after the order was obtained. Indeed, at the hearing, the People introduced no evidence at all of any procedure by which any minimization of calls intercepted, listened to, replayed, described or transcribed was essayed.

It appears unnecessary to here review the authoritative expressions of concern for individual rights, running the gamut all the way from Mr. Justice Holmes now classical prescient "dirty business" dissent in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944 to President Carter's statement only last month (New York Times, May 19, 1977, p. 1), that are at the root of the cautions that must be exercised in granting or executing any permissible order for the invasion of private telephonic communications. Sufficient unto this case is reference to the minimization guidelines we recently articulated in People v. Floyd, 41 N.Y.2d 245, 392 N.Y.S.2d 257, 360 N.E.2d 935, where we stated that, for the People to meet its initial burden to prove legality of such surveillance, they must show that "procedures were established to minimize interception of nonpertinent communications and that a conscientious effort was made to follow such procedures" (41 N.Y.2d at p. 250, 392 N.Y.S.2d, at p. 262, 360 N.E.2d, at p. 940).

Necessarily, many variables enter into the determination of whether that burden has been met. Obviously, what may be a reasonable procedure and "a conscientious effort" under the circumstances of one investigation may be unjustifiable under others. The nature and scope of an actual investigation in progress; the character and sophistication of the parties who are its targets and the nature of their expected associates; the extent of the official supervision devoted to each step of the surveillance; the possibility and practicality of determining, contemporaneously with their interception, whether particular conversations are in fact pertinent to the objectives of the investigation; these are among the many factors to be taken into account. Ultimately, in each case, the primary question is whether, realistically considered, there was a good faith attempt to affirmatively avoid interception of conversations unrelated to the crime or crimes authorized to be investigated by terms of the court order by leave of which the authorities were acting.

Turning then to whether, under the circumstances in this case, minimization was achieved, we note at the outset that CPL 700.05 (subd. 3) specifically defines interception as inclusive of the recording of conversations. Its requirements therefore are equally applicable to conversations which are overheard aurally and those which in the first instance are mechanically recorded.

We reject any suggestion, however, as we did in Floyd (see 41 N.Y.2d, at p. 250, n. 4, 392 N.Y.S.2d, at p. 262, 360 N.E.2d, at p. 941, supra), that total interception, be it aural or by tape, constitutes, without more, a per se violation of the statutory and constitutional requirements; in a rare case, a decision to use automatic and continuously operating recording machines might constitute a reasonable effort to achieve lawful seizures by the only practicable procedure available, as, for example, where, due to some peculiarity in the location of the subject phone, a live monitoring agent might be detected, or where, perhaps, a target suddenly and unexpectedly begins to speak in a foreign language that is strange to the community and not subject to interpretation until experts are found. In such situations, courts have found that it may be permissible to protect privacy interests by establishing procedures to minimize perpetuation of the conversations (see, e. g., United States v. Manfredi, 2 Cir., 488 F.2d 588, 600, n. 9, cert. den. 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240, which suggests that erasure of...