People v. Grossman

• Decision Date: 28 February 1965
• Citation: 45 Misc.2d 557,257 N.Y.S.2d 266
• Parties: PEOPLE v. Leonard GROSSMAN, Michael Scandifia and Lawrence Pistone.
• Court: New York Supreme Court

Page 266

257 N.Y.S.2d 266

45 Misc.2d 557

PEOPLE v. Leonard GROSSMAN, Michael Scandifia and Lawrence Pistone.

Supreme Court, Criminal Term, Kings County, Part I.

Feb. 28, 1965.

[45 Misc.2d 560] Aaron E. Koota, Dist. Atty. (Ira London, Asst. Dist. Atty.), for the people.

Rubin & Gold, New York City (Leonard Rubin), for defendant Grossman.

Abraham H. Brodsky, New York City, for defendant Scandifia.

Albert Arrone, for defendant Pistone.

NATHAN R. SOBEL, Justice.

The principal issue (one not heretofore decided by an appellate court) presented by these motions to suppress (Code Cr.Proc. § 813-c) and to dismiss the indictment, is: 'May an ex parte order for eavesdropping (C.C.P. § 813-a) serve the function of a search warrant under the Warrant Clause of the Fourth Amendment to authorize a physical invasion (trespass) upon a constitutionally protected area in a 'search' for conversations?'

Other subsidiary constitutional issues are raised. But these are well settled, if not by decision of the appellate courts in this State, by the decisions of the United States Supreme Court made applicable to this State by the Fourteenth Amendment (Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726).

THE FACTS

The facts as stipulated (see opinion 12/17/64, p. 17, col. 6, N.Y.L.J.) and as found at the hearings (Jan. 22, 25 and Feb. 1, 1965) are chronologically as follows:

A larceny of jewelry by false pretenses had been committed in late 1962. I find that there was 'reasonable ground to believe' (§ 813-a) that the defendant Michael Scandifia was implicated in that crime. On the basis of a necessary affidavit an eavesdropping order was issued from the Supreme Court, New York County on March 13, 1963 (P. Ex. 1) authorizing the installation of an eavesdropping device (hereinafter referred to as a 'bug') in a service station owned by defendant Scandifia at 446 Coney Island Avenue, Brooklyn. This place of business, I rule, is a 'constitutionally protected area' (Lanza v. State of New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed. 384, and cases cited).

The 'bug' was shortly thereafter installed in the private office of defendant Scandifia in the service station premises. This was accomplished by the police by a physical intrusion, i. e., by 'breaking' into the premises in the early morning hours. By means of a listening device in nearby premises, the police overheard and recorded all conversations which took place in the private office (including one side of all telephone conversations) for a period of five months. Successive extensions (P. Ex. 2 and 3) of the original eavesdropping order were obtained based on substantially the same affidavits which supported the original order. No new 'probable cause' was stated.

While the 'bugging' of the Scandifia premises was in progress, an order was obtained for the 'bugging' of the business premises of one Peter Ferrara (indicted with above named defendants but never apprehended) at 1253-65 Street, Brooklyn. This 'bug' was also installed by a physical intrusion upon constitutionally protected premises and was continued for some time (see P. Ex. 4 and P. Ex.'s 5 and 6 authorizing extensions). This order signed by another Supreme Court Justice, New York County, dated May 29, 1963, named the crimes under investigation as conspiracy, coercion and 'shylocking'. Unlike the Scandifia order (P. Ex. 1) these orders were supported by affidavits which do not allege even a shred of 'reasonable ground' of 'probable cause'. These affidavits are precisely the same as the affidavits condemned by the Supreme Court in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. My finding in this regard with respect to the second, i. e., the Ferrara 'bug' has minor significance since evidently little was overheard bearing on the instant indictment.

If any conversations which bear on the 'original' crimes (i. e., the jewelry larceny or the shylocking) were overheard this was not disclosed to me or to the grand jury. (See however, p. 132 of hearing.) As is usually the case (at least from my own observations and experience) the eavesdropping disclosed an 'unrelated' crime. ¹

The 'unrelated' crime conversations were as follows (see pp. 97-101 of hearing):

On July 19, 1963 the defendant Scandifia was overheard discussing with defendant Grossman two pistols for which Scandifia desired to obtain bullets.

On July 23, 1963 in a conversation overheard between these defendants it was made obvious that Grossman was being given the two pistols in order to obtain the bullets.

On July 24, 1963 an officer presented an affidavit setting forth the aforesaid overheard 'conversations' and obtained a search warrant for an automobile owned by Grossman (P. Ex. 4, 4b, 4c). The search warrant was executed the following day and the pistols recovered. Except for some extraordinary events connected with the conduct of the search (see my opinion N.Y.L.J. 12/17/64, p. 17, col. 6) I find the search warrant was lawfully executed.

The real issue however is whether there was probable cause from an untainted source to authorize the issuance of the search warrant. All of the probable cause alleged in the affidavit was obtained as a result of the court-ordered eavesdropping. Only if the eavesdropping was lawful and constitutional by federally commanded standards may the search warrant be sustained and the motion to suppress the tangible (two pistols) product of the search be denied.

The District Attorney contends that the eavesdropping was made constitutional by the court order. The defendants contend that it was not.

I.

EAVESDROPPING ACCOMPLISHED BY A TRESPASS

It requires no extended discussion to establish that eavesdropping or 'bugging', accompanied by a trespass, constitutes an unreasonable search and seizure in violation of the Fourth Amendment (see extensive discussion in Sobel 'Current Problems in the Law of Search and Seizure', pp. 98-114). The law is clear that the Fourth Amendment is violated when an electronic device or 'bug' is planted (1) by an unlawful physical invasion of (2) a constitutionally protected area. In the instant case 'breaking and entering' constitutes an unlawful physical invasion; a business office is a constitutionally protected area.

Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 is of course the leading case. But the central holding may be found in earlier cases. (Olmstead v. United States, 277 U.S. 438, 444, 48 S.Ct. 564, 72 L.Ed. 944 [wiretapping without physical invasion]; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 [detectaphone without an unauthorized physical encroachment]; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 [microphone on person of an invitee or guest].)

In Silverman, supra, pp. 511-512, 81 S.Ct. p. 683, a spike microphone was driven into the wall of the defendant's premises. The Court was unanimous in holding:

'The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626-630, 6 S.Ct. 524, 530-532, 29 L.Ed. 746. This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.'

Upon an identical state of facts, only last term, the Court in a per curiam opinion reversed a Virginia judgment of conviction. (Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213.)

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, no 'eavesdropping' was involved. The police broke into a store and obtained damaging admissions from the owner. The Court said (pp. 485-486, 83 S.Ct. p. 416):

'* * * It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. * * * Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers * * * or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained * * *, the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.' (Italics added.)

Later, in Lopez v. United States, 373 U.S. 427, 460, 83 S.Ct. 1381, 1399, 10 L.Ed.2d 462, the Court said:

'* * * We have held that the fruits of electronic surveillance, though intangible, nevertheless are within the reach of the Amendment * * * Indeed, only the other day we reaffirmed that verbal fruits, equally with physical, are within the Fourth. Wong Sun v. United States, 371 U.S. 471, 485-486, 83 S.Ct. 407, 416-417, 9 L.Ed.2d 441.' (Italics added.)

Speaking of electronic eavesdropping the Court further stated (pp. 438-439, 83 S.Ct. p. 1387):

'* * * The Court has in the past sustained instances of 'electronic eavesdropping' against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. See, e. g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 92 S.Ct. 993, 86 L.Ed. 1322. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v....