People v. Hafner
| Citation | 543 N.Y.S.2d 786,152 A.D.2d 961 |
| Parties | PEOPLE of the State of New York, Respondent, v. Hubbard HAFNER, Appellant. |
| Decision Date | 12 July 1989 |
| Court | New York Supreme Court Appellate Division |
Leslie Bradshaw, Rochester, for appellant.
Howard R. Relin by Robert Mastrocola, Rochester, for respondent.
Before DILLON, P.J., and CALLAHAN, DENMAN, GREEN and PINE, JJ.
On appeal from a judgment convicting him of criminal possession of a controlled substance in the second degree, defendant's sole contention is that LSD was improperly seized from his apartment because the search warrant was based on information obtained from an improperly authorized wiretap on the telephone of Jessie Sanders. Defendant claims that the Sanders eaves-dropping warrant was invalid because there was an insufficient showing that normal investigative techniques had been and would be unavailing. In order to obtain an eavesdropping warrant, police must show that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL 700.15 [4]; CPL 700.20 [2] [d]. Eaves-dropping warrants may not be used routinely as a first step in the investigation (People v. Baris, 116 A.D.2d 174, 187, 500 N.Y.S.2d 572, lv. denied 67 N.Y.2d 1050, 504 N.Y.S.2d 1025, 495 N.E.2d 358; People v. Gallina, 95 A.D.2d 336, 339, 466 N.Y.S.2d 414); on the other hand, police need not exhaust "all possible steps" (People v. Baris, supra, 116 A.D.2d at 187, 500 N.Y.S.2d 572) or "every other imaginable method of investigation" (People v. Carson, 99 A.D.2d 664, 665, 472 N.Y.S.2d 68) before applying for an eaves-dropping warrant. The police must illustrate the difficulties inherent in the use of normal law enforcement methods (People v. Carson, supra ) sufficient to insure that eaves-dropping is more than just a "useful tool" (People v. Baris, supra). The People's showing must be tested in a practical and common sense fashion in the context of the objectives of the investigation (People v. Campaigni, App.Div., 542 N.Y.S.2d 449; People v. Baris, supra; People v. Gallina, supra, 95 A.D.2d at 340, 466 N.Y.S.2d 414).
Applying those standards, we conclude that the Sanders eaves-dropping warrant was properly issued and that defendant's motion to suppress was properly denied. The affidavits and attached exhibits submitted to the issuing court established the wariness and evasiveness of the targets of the investigation,...
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