People v. Floyd

• Decision Date: 28 December 1976
• Citation: 41 N.Y.2d 245,392 N.Y.S.2d 257,360 N.E.2d 935
• Parties: , 360 N.E.2d 935 The PEOPLE of the State of New York, Respondent, v. Baxter W. FLOYD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 257

392 N.Y.S.2d 257

41 N.Y.2d 245, 360 N.E.2d 935

The PEOPLE of the State of New York, Respondent, v. Baxter W. FLOYD, Appellant.

Court of Appeals of New York.

Dec. 28, 1976.

George Donald Covington, New York City, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Alan D. Rubinstein, Brooklyn, of counsel), for respondent.

GABRIELLI, Judge.

Defendant claims, on his appeal to this court, that the wrie interception of his telephone was not conducted in accordance with the minimization requirement of CPL 700.30 (subd. 7) and, therefore, the approximately 40 intercepted communications admitted at trial concerning defendant's involvement in the distribution of narcotics should have been suppressed (see CPL 710.20 subd. 2). As a corollary question, it is also argued that the failure of the Judge presiding at the minimization hearing to require the prosecution to provide a transcript of the tapes of all intercepted communications to the court and defense counsel constituted reversible error.

Following the issuance of an eavesdropping warrant, based upon the affidavit of Sgt. James McNicholas, the supervisor of the investigation into defendant's narcotics activities, a wiretap was placed on defendant's telephone. On this appeal, the defendant does not challenge the validity of the eavesdropping warrant or the sufficiency of the affidavit upon which the issuance of the warrant was based. ¹ The warrant along with three subsequent extensions (see CPL 700.40) authorized surveillance for a period of 120 days but surveillance was terminated after 107 days.

On defendant's motion to suppress eavesdropping evidence (see CPL 710.20, subd. 2), a hearing was held to determine whether the police officers involved in the electronic surveillance had complied with the minimization directive contained in the eavesdropping warrant as mandated by CPL 700.30 (subd. 7). Sgt. McNicholas, the supervising officer, testified that while surveillance had been authorized for 2,880 hours, the eavesdropping was actually conducted for only 1,210 hours. He also testified that he received instructions from two Assistant District Attorneys that only communications of the defendant, Baxter Floyd, were to be interecepted and not those of any other person using the telephone, such as one Patricia Mitchell who was believed to reside at the address at which the subject telephone was located. He was also instructed to intercept only those communications involving the defendant which were pertinent to the crimes under investigation and that privileged communications, such as calls between the defendant and his attorney, priest or doctor were not to be intercepted. These instructions were relayed by the supervising officer to the police officers manning the eavesdropping apparatus. The general aim of the investigation was to determine the extent of the defendant's role in the distribution and sale of narcotics and any narcotics-related crimes, the participation of any other persons such as dealers and buyers in such activity and the involvement of any government agencies. The procedures utilized during the period of surveillance were described in considerable detail. For most calls, the monitoring officers would intercept the calls for a brief 30- to 40-second interval in order to determine the pertinency of the call to the investigation. If the call was deemed nonpertinent because the defendant was not a party or because the call was innocent in nature, monitoring would cease and the recording device was turned off. If the duration of the call exceeded two to three minutes, the officers would once again monitor the call for a 30- to 40-second period to ascertain whether the parties to the conversation had changed and to redetermine the pertinency of the call. There was never any indiscriminate, automatic overhearing or recording of conversations and police officers were always present operating the monitoring and recording devices. Several calls not involving the defendant were recorded in their entirety but these were of very short duration. The supervising officer also testified that at the inception of the investigation, for the first two or three weeks, when it was necessary to determine a pattern of usage, there was a greater degree of monitoring. Defendant presented no evidence at the minimization hearing but moved that the District Attorney be required to submit to the court and to the defendant transcripts of every conversation intercepted; this motion was denied, on the ground that the tapes of the intercepted conversations themselves had been made available to the defendant for inspection and transcription. The court them denied appellant's motion to suppress the wiretap evidence, having concluded that the statutory directive to minimize interception of nonpertinent calls had been satisfied. The court specifically held that there was a good faith effort to minimize interception, and that the procedures established by the investigating authorities resulted in a minimization of interception of nonpertinent calls. The defendant proceeded to trial at which approximately 40 tape recordings evidencing defendant's involvement in narcotics trade were admitted into evidence and he was convicted of the crimes of criminal possession and sale of dangerous drugs in the first, second and third degrees. He does not now challenge the sufficiency of the evidence supporting those convictions which were affirmed by an unanimous Appellate Division.

CPL 700.30 (subd. 7) mandates that an eavesdropping warrant 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 eavesdropping under this article'. ² An 'intercepted communication' is defined in CPL 700.05 (subd. 3) as 'a telephonic * * * communication which was intentionally Overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver, by means of any instrument, device or equipment'. (Emphasis added.)

This case does not involve a claim that the eavesdropping warrant failed to include the talismanic language of CPL 700.30 that the interception of nonpertinent calls be minimized (see, e.g., United States v. Manfredi, 2 Cir., 488 F.2d 588; People v. Sturgis, 76 Misc.2d 1053, 352 N.Y.S.2d 942; People v. Kennedy, 75 Misc.2d 10, 347 N.Y.S.2d 327; People v. Holder, 69 Misc.2d 863, 331 N.Y.S.2d 557). Rather, the issue presented on this appeal is whether minimization was actually achieved and whether the surveillance procedures utilized by the monitoring police officers were adequate to insure that the smallest practicable number of calls not pertinent to the criminal enterprise under investigation were intercepted. Since previously we have had occasion to comment only briefly on this requirement (see People v. Di Stefano, 38 N.Y.2d 640, 651--652, 382 N.Y.S.2d 5, 11--12, 345 N.E.2d 548, 554--555), this case affords an opportunity to discuss in depth the scope of the minimization directive.

The minimization requirement is founded upon the deep-rooted concern expressed by the Supreme Court, in Berger v. New York, 388 U.S. 41, 57, 87 S.Ct. 1873, 1882, 18 L.Ed.2d 1040, that, in investigations utilizing eavesdropping techniques, 'no greater invasion of privacy * * * than was necessary under the circumstances' should be permitted (see, also, United States v. Focarile, D.C., 340 F.Supp. 1033, affd. Sub nom. United States v. Giordano, 4 Cir., 469 F.2d 522, affd. 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341). The requirement also has its underpinnings in the Fourth Amendment interdiction of unreasonable search and seizures and its mandate that search warrants contain provisions 'particularly describing the place to be searched, and the persons or things to be seized.' ³ The court in Berger sought to prevent the expansion of eavesdropping warrants into full blown 'general' warrants prohibited by the Fourth Amendment. The minimization requirement is designed to insure that the communications intercepted conform, as nearly as possible, to those subject to interception by the terms of the eavesdropping warrant (see Note, Post-Authorization problems in Use of Wiretaps, 61 Cornell L.Rev. 92, 94--99).

Minimization does not necessarily require that all nonpertinent communications be free from interception in their entirety, for such a standard would be unrealistic and virtually impossible to satisfy (see United States v. Bynum, 2 Cir., 485 F.2d 490, 500, vacated on other grounds 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209). This is especially true in narcotics conspiracies where crime-related conversations may be prefaced by innocent 'chatter' and, thus, in such cases, some minor degree of intrusion must take place before a determination of pertinency can be made (United States v. Turner, 9 Cir., 528 F.2d 143, 156; United States v. Armocida, 3 Cir., 515 F.2d 29, 42; United States v. Bynum, supra; United States v. Falcone, D.C., 364 F.Supp. 877, affd., 3 Cir., 505 F.2d 478, cert. den. 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432). Courts examining interceptions in retrospect cannot fairly expect government agents to be possessed of clairvoyant powers in foreseeing in advance the relevance of particular communications to the crimes under investigation (United States v. Bynum, supra, p. 502; United States v. LaGorga, D.C., 336 F.Supp. 190, 196).

Minimization may be defined as a good faith and reasonable effort to keep the number of nonpertinent calls intercepted to the smallest practicable number (United States v. Turner, supra; United States v. Scott, 170 U.S.App.D.C. 158, 516 F.2d 751, 757; United States v. Quintana, 7 Cir., 508 F.2d 867, 875; United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1018, cert. den. Sub nom. Tantillo v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294). The determination whether minimization has...