People v. Tambe

• Citation: 522 N.E.2d 448,527 N.Y.S.2d 372,71 N.Y.2d 492
• Parties: , 522 N.E.2d 448 The PEOPLE of the State of New York, Respondent, v. Samuel K. TAMBE, Appellant.
• Decision Date: 24 March 1988
• Court: New York Court of Appeals

Page 372

527 N.Y.S.2d 372

71 N.Y.2d 492, 522 N.E.2d 448

The PEOPLE of the State of New York, Respondent, v. Samuel K. TAMBE, Appellant.

Court of Appeals of New York.

March 24, 1988.

Edward L. Fiandach, Rochester, for appellant.

James R. Harvey, Dist. Atty. (R. Michael Tantillo, Canandaigua, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted, upon his guilty plea, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ). On this appeal he challenges on several grounds the validity of a search warrant authorizing the search of his house and the seizure of various items of physical evidence, including approximately two pounds of cocaine found during the course of the search.

I

While investigating a drug ring involving the importation and distribution of cocaine in the Finger Lakes region, the State Police obtained authorization to place a wiretap on the phone of one Hector Carbuccia, a known cocaine distributor operating at the middle level of the local drug distribution chain. By means of the wiretap, they intercepted coded conversations between Carbuccia and defendant suggestive of drug activity. Consequently, on June 15, 1984 the Ontario County District Attorney sought an eavesdropping warrant for defendant's telephone.

The application in support of the eavesdropping warrant contained over 200 pages. Included in it was an affidavit from State Police Investigator William Freeman, who was the director of the area-wide drug investigation and an officer with substantial experience in drug enforcement. In his affidavit he summarized the results of the investigation and he attached to it several exhibits, including the results of a pen register surveillance which showed that over 2,000 telephone calls of short duration had been placed to and from defendant's residence over a one-month period of time. Defendant, who had prior drug-related arrests and convictions, had no known legitimate occupation and, according to Investigator Freeman, such phone call patterns were consistent with narcotics trafficking. The pen register results also revealed that defendant regularly conversed with other individuals identified as cocaine distributors by known police informants speaking from personal knowledge and against their penal interests. Another informant named defendant as a "marihuana and cocaine connection" for Canandaigua. Most significantly, the warrant application contained a detailed summary and verbatim passages of phone conversations between defendant and Hector Carbuccia. The conversations were "coded" in an attempt to disguise their purpose, but according to Investigator Freeman, who had listened to the calls, read the transcripts of them and translated the coded language used by defendant and his companions, the conversations related to the distribution of cocaine in the Finger Lakes region.

On the basis of this information, Ontario County Judge Frederic T. Henry, Jr., issued an order authorizing the police to tap defendant's telephone. By means of the tap, State Police investigators intercepted several drug-related calls to and from defendant's residence during the next 15 days.

On the morning of June 30, 1984, Freeman made an oral application to Judge Henry pursuant to CPL 690.36 to search the residence of Paul Callerame, one of defendant's associates in drug distribution. He requested that the Judge "incorporate by reference" all of the facts and circumstances contained in the 200-page application for the eavesdropping warrant issued 15 days earlier and he explained why he thought there was probable cause to search Callerame's residence. Specifically, he offered his expert explanation of each of 19 coded telephone conversations involving defendant and his companions, supplying Judge Henry with verbatim quotations of the salient portions of 15 of them. These telephone conversations revealed that on June 25, 1984 codefendant Paul Callerame flew to Florida from Syracuse and purchased about 32 ounces of cocaine. While negotiating the cocaine transaction in Florida, Callerame called both his girlfriend Susan Kennedy and defendant in Canandaigua to advise them of details. After the purchase, Callerame called defendant and told him that it was "time to send the mailman", meaning that it was time for codefendant Al Sterling to drive down to Florida to pick up the cocaine and return to the Finger Lakes region with it by car. The intercepted communications also revealed that Sterling, under the direction of defendant, did indeed leave for Florida, that he made contact with Callerame in West Palm Beach, Florida, and that the two men left Florida at about the same time--Callerame by plane, Sterling by car. When the two codefendants returned to New York, they contacted defendant, who had been accepting orders for the resale of substantial quantities of cocaine to various other individuals farther down the drug chain while Sterling and Callerame were away. Sterling, Callerame and defendant arranged to meet on the morning of June 30, 1984 to cut and distribute the cocaine.

Freeman also supplied Judge Henry with details corroborating the activities discussed on these tapes. For example, he confirmed that Sterling had rented a car in Rochester on June 26 and that Callerame had flown to Florida from the Syracuse airport and subsequently returned there from Florida. In the course of their telephone conversation, Freeman also told Judge Henry that his surveillance team had seen defendant at Callerame's residence on the morning of June 30, 1984. Freeman then read contents of the search warrant for Callerame's residence to Judge Henry and the Judge authorized a no-knock warrant based upon all the information presented, including the information supplied to support the eavesdropping warrant "incorporated by reference" into the search warrant application.

Before the warrant could be executed, however, defendant and the codefendants left the Callerame residence and drove to defendant's residence in Canandaigua. Accordingly, Freeman called Judge Henry again at about 11:55 A.M. After being properly sworn, Freeman asked Judge Henry to incorporate by reference all of the information supplied during the two earlier warrant applications, and then proceeded to tell him why he believed that cocaine was now present at defendant's residence. He referred the court to the June 28, 1984 conversation in which defendant told an individual named Peter Roth that he had 1 1/2 ounces of cocaine at his residence and was waiting for the larger shipment to come in. Freeman also told Judge Henry that he believed that defendant had gone to the Callerame residence that morning to pick up a supply of the cocaine. Freeman read the contents of the warrant and Judge Henry issued a no-knock warrant for defendant's residence.

That afternoon New York State Police officers executed the warrant and seized from defendant's residence roughly two pounds of cocaine in numerous bags and containers as well as scales, dilutants, and other drug-related paraphernalia. Defendant was subsequently indicted for first degree possession of a controlled substance (Penal Law § 220.21[1] ) and when his motion to suppress the evidence seized pursuant to the search warrant was denied, he pleaded guilty.

II

Defendant has made several arguments in support of suppression but only four merit discussion.

A

Defendant contends first that the eavesdropping warrant issued by Judge Henry on June 15, 1984 was not supported by probable cause and, therefore, all evidence obtained by means of that warrant, either directly or indirectly, must be suppressed under the State and Federal Constitutions (N.Y. Const., art. I, § 12; U.S. Const. 4th Amend.).

It is settled that the probable cause necessary for the issuance of an eavesdropping warrant is measured by the same standards used to determine whether probable cause exists for the issuance of a search warrant ( People v. Kaiser, 21 N.Y.2d 86, 96, 286 N.Y.S.2d 801, 233 N.E.2d 818, affd. 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274; People v. Manuli, 104 A.D.2d 386, 387, 478 N.Y.S.2d 712). As in the case of warrants generally, whether eavesdropping warrants are supported by probable cause is a mixed question of law and fact and, therefore, this court is limited to reviewing the legal sufficiency of the evidence to determine whether the People have made the necessary minimum showing ( see, People v. Bigelow, 66 N.Y.2d 417, 420-421, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015).

The record supports the finding of the courts below that there was sufficient evidence to support a finding of probable cause for the issuance of the eavesdroppi warrant. First, there was the lawfully intercepted telephone calls between Carbuccia and defendant. The conversations were coded and, therefore, ambiguous but Investigator Freeman was an experienced drug officer and he interpreted the language used. His analysis was properly accepted because, as the courts below quite correctly recognized, "cryptic and ambiguous conversations may serve as a predicate for probable cause when reasonably interpreted by an experienced investigator" ( People v. Manuli, 104 A.D.2d 386, 388, 478 N.Y.S.2d 712, supra; accord, People v. Baris, 116 A.D.2d 174, 191, 500 N.Y.S.2d 572; People v. Germaine, 87 A.D.2d 848, 849, 449 N.Y.S.2d 508; United States v. Principie, 531 F.2d 1132, 1138, cert. denied 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581). Moreover, review of the record supports the conclusion that Investigator Freeman's interpretations of the telephone conversations were reasonable and they confirmed that defendant was probably a drug trafficker. In addition to these conversations, however, the results of pen register activity on defendant's phone revealed that he...