People v. Schneider

• Decision Date: 03 June 2021
• Docket Number: No. 41,41
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph SCHNEIDER, Appellant.
• Court: New York Court of Appeals Court of Appeals

37 N.Y.3d 187
173 N.E.3d 61
151 N.Y.S.3d 1

The PEOPLE of the State of New York, Respondent,
v.
Joseph SCHNEIDER, Appellant.

No. 41

Court of Appeals of New York.

June 3, 2021

173 N.E.3d 62

151 N.Y.S.3d 2

Stephen N. Preziosi P.C., New York City (Stephen N. Preziosi of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn (Morgan J. Dennehy and Leonard Joblove of counsel), for respondent.

Sandra Doorley, District Attorneys Association of the State of New York (Susan Axelrod and Alan Gadline of counsel), for District Attorneys Association of the State of New York, amicus curiae

OPINION OF THE COURT

Chief Judge DiFIORE.

37 N.Y.3d 189

The issue raised on defendant's appeal is whether a Kings County Supreme Court Justice had jurisdiction to issue eavesdropping warrants for defendant's cell phones, which were not physically present in New York, for the purpose of gathering evidence in an investigation of

151 N.Y.S.3d 3

173 N.E.3d 63

enterprise corruption and gambling offenses committed in Kings County. To resolve defendant's jurisdictional challenge, we must decide whether the eavesdropping warrants were "executed" in Kings County within the meaning of Criminal Procedure Law § 700.05(4).

37 N.Y.3d 190

We hold that eavesdropping warrants are executed in the geographical jurisdiction where the communications are intentionally intercepted by authorized law enforcement officers within the meaning of CPL article 700. Accordingly, the order of the Appellate Division should be affirmed.

I.

Law enforcement officers in Kings County conducted a two-year investigation into an illegal gambling enterprise. In the early stages of the investigation, an undercover agent met with defendant's accomplice, PD, and placed bets at a location in Kings County. A variety of investigative tools were used to identify coconspirators and gather evidence, including physical surveillance and the installation of a bugging device and video surveillance at the Kings County location. Investigators obtained eavesdropping warrants on the cell phones of multiple targets, including targets physically present in New York. Defendant's participation in the illegal gambling enterprise was uncovered when his telephonic communications were intercepted pursuant to a warrant authorizing eavesdropping on the cell phone of PD, who regularly came to Kings County in furtherance of the gambling enterprise. In the intercepted calls, defendant and PD were overheard discussing password-protected internet accounts on sports gambling websites, through which defendant controlled the usernames, passwords, betting limits, gambling lines and spreads for all his gambling clients.

The Kings County District Attorney applied for eleven successive eavesdropping warrants to intercept communications on three cell phones linked to defendant, at least two of which did not have subscriber information but were connected to defendant by voice identification. A Kings County Supreme Court Justice issued the warrants after finding probable cause to believe that defendant was engaging in designated gambling offenses in Kings County, mainly through his website "thewagerspot.com," and that "normal investigative procedures ... reasonably appear[ed] to be unlikely to succeed," justifying the use of eavesdropping. The warrants, as provided by statute, directed the particular communications service providers that controlled and operated the telephone wires and other digital and computer systems that transferred the telephonic and electronic communications to "provide all information, facilities, and technical assistance" to law enforcement to execute the warrants in Kings County.

37 N.Y.3d 191

Defendant was subsequently indicted in Kings County, along with seven others, for enterprise corruption, promoting gambling and related crimes. Among other acts attributed to defendant, the indictment alleged that on seventeen specific dates between September 13, 2015 and January 3, 2016, in Kings County, defendant and his accomplices received or accepted five or more illegal sports wagers on each date through defendant's gambling website, totaling more than five thousand dollars on each occasion. Defendant moved to suppress the evidence obtained pursuant to the warrants.¹ He did not

151 N.Y.S.3d 4

173 N.E.3d 64

assert that the government interception of his communications violated his constitutional privacy interests. Nor did he dispute that the charges were properly brought in Kings County based on the commission of designated crimes in that location. Instead, as relevant here, defendant claimed that the Kings County Supreme Court Justice lacked the authority to issue the eavesdropping warrants because defendant and his cell phones were not located in New York and his intercepted communications involved call participants who were not physically present in New York and therefore execution of the warrants did not occur in Kings County. He also claimed that the People violated his due process rights, the separate sovereign doctrine and other constitutional limitations because California law does not include gambling offenses as designated crimes for eavesdropping.

The suppression court denied the motion, concluding that there was probable cause to believe that defendant committed the designated gambling crimes ( CPL 700.05[8] ) in Kings County, that the warrant was executed at a facility in Kings County where the communications were overheard and accessed by authorized law enforcement, and the warrants were properly issued by a Justice in Kings County. The court further rejected defendant's claim that, under this approach, a judicial warrant allows law enforcement to "re-route phone calls being made anywhere in the country to Kings County and thereby have nation-wide jurisdiction." The court concluded that since the crimes were allegedly committed in Kings County, there was jurisdiction to prosecute the crimes and a sufficient nexus for the issuance of the eavesdropping warrants in that county.

Defendant entered a guilty plea to all counts of the indictment against him. The Appellate Division affirmed the judgment,

37 N.Y.3d 192

holding that the suppression court properly denied defendant's motion to suppress the eavesdropping evidence because CPL article 700 authorized the Supreme Court Justice in Kings County to issue warrants that would be "executed" in that court's judicial district, meaning where the communications would be "intentionally overheard and recorded" ( 176 A.D.3d 979, 980, 112 N.Y.S.3d 248 [2d Dept. 2019], quoting CPL 700.05[3][a] ). The Court also rejected defendant's claim that the warrants represented an unconstitutional extraterritorial application of New York state law. A Judge of this Court granted defendant leave to appeal ( 34 N.Y.3d 1132, 118 N.Y.S.3d 511, 141 N.E.3d 467 [2019] ).

II.

There is no dispute here that law enforcement agents must obtain a judicial warrant to intercept real time cell phone communications. Historically, the Fourth Amendment guarantee against unreasonable searches and seizures ( U.S. Const Amend IV ) focused on whether the government obtained information by physical intrusions on constitutionally protected areas (see Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2213, 201 L.Ed.2d 507 [2018] ; Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 [1928] ). However, over fifty years ago, it was established that " ‘the Fourth Amendment protects people, not places,’ [which] expanded [the] conception of the Amendment to protect certain expectations of privacy’ " ( Carpenter, 138 S. Ct. at 2213, quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ). Given the more modern appreciation "that property rights are not the sole measure of Fourth Amendment violations," a person's right to privacy has become the paramount concern in assessing the reasonableness of government intrusions,

173 N.E.3d 65

151 N.Y.S.3d 5

especially as "innovations in surveillance tools ... ha[ve] enhanced the Government's capacity to encroach upon areas normally guarded from inquisitive eyes," and courts must continue to "secure the privacies of life against arbitrary power" ( id. at 2213–2214 [internal quotations omitted]; see also Katz, 389 U.S. at 351–352, 88 S.Ct. 507 ; Riley v. California, 573 U.S. 373, 381–382, 134 S.Ct. 2473, 189 L.Ed.2d 430 [2014] ).

In New York, article I, § 12 of the New York State Constitution authorizes the issuance of eavesdropping warrants as a law enforcement investigative tool to overhear and intercept telephonic communications, provided that certain safeguards against...