People v. Teicher
| Decision Date | 02 June 1977 |
| Citation | 90 Misc.2d 638,395 N.Y.S.2d 587 |
| Parties | The PEOPLE of the State of New York v. Marvin TEICHER, Defendant. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty. of New York County, by Linda Fairstein, Asst. Dist. Atty., for the People.
Rothblatt, Rothblatt, Seijas & Peskin, by Steven Peskin, New York City, for the defendant.
Defendant, a practicing dentist in the Chelsea district in Manhattan, is charged with three counts of sexual abuse in the first degree, arising from his alleged sexual touching and fondling of three of his female patients after he had injected certain drugs (sodium secobarbitol and valium) for the purpose of dental extractions. It is the People's contention that the drugs rendered the patients "physically helpless" and thus incapable of consenting to the sexual contact.
The last of these patients was an undercover policewoman and in conjunction with arranging her appointment with defendant for the extraction of a wisdom tooth, the People applied for and obtained a warrant from a Justice of the Supreme Court to secretly place a camera in defendant's dental offices to videotape the events of the visit. Defendant's motion to controvert this warrant and suppress the film obtained from use at the trial presents several novel issues of first impression. 1
Defendant contends that suppression is required. He claims that the installation of video surveillance equipment and the monitoring and taping of his activities within his office was a search and seizure within the meaning of the Fourth Amendment, and that this search and seizure were unreasonable for the following reasons:
1. There is no statutory authority in this State for the issuance of an order to videotape.
2. The order was improper because the accompanying affidavits are based on unsupported hearsay and therefore fail to establish probable cause.
3. The order was invalid, in any event, because it did not conform to the minimal constitutional standards established for electronic eavesdropping by not specifying: (a) the precise location where the camera was to be installed, (b) the precise activities and area to be observed, (c) the manner in which minimization was to be accomplished and (d) a reasonable limitation during which surveillance was to continue.
4. The order was improvidently granted since normal investigative procedures had not been exhausted before the radical technique of videotaping was employed.
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
The Supreme Court in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), held that whether the police have conducted a search within the meaning of the Fourth Amendment does not depend upon a property right in the invaded place, but rather upon whether the area is one in which there is reasonable expectation of freedom from governmental intrusion. Traditionally, a doctor's office has been so regarded (Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); People v. Abruzzi, 52 A.D.2d 499, 385 N.Y.S.2d 94 (2nd Dept. 1976), aff'd --- N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- (1977).
Further, courts have employed the Katz expectation of privacy rationale to provide security from nonjudicially sanctioned visual surveillance of private places and actions (People v. Abruzzi, supra ). 2
There is no doubt that the installation of video surveillance equipment and the monitoring of Dr. Teicher's activities in his office was, indeed, a search and seizure within the scope of the Fourth Amendment. The defendant argues that issuance of the instant warrant was entirely without statutory authority. It is his position that a warrant may issue subject only to a specific statute and that search and seizure by videotape is not provided by either CPL Article 690 or Article 700 ().
The order and underlying affidavits submitted to the issuing court do not specifically state that this warrant was issued pursuant to Article 690 or 700 or both. However, the application for the warrant clearly indicates an effort to comply with the stricter and more particularized formulations of CPL Article 700, the eavesdropping statute, as well as to show probable cause for its issuance pursuant to Article 690.
CPL section 700.15 states as follows:
The process of videotaping consists of the simultaneous use of a camera and microphone to convert light energy and sound waves into electronic impulses, which impulses are stored on magnetic tape that can be played back to recreate the audio and visual scene so recorded (Ward, "Judicial Administration Technological Advances Use of Videotape in the Courtroom and Stationhouse," 20 DePaul L.Rev. 924 (1971). Thus, videotaping does appear to be a device for "mechanically overhearing a conversation" as that term is defined in Penal Law, section 250.00(2) and used in Article 700 of the CPL. It does, however, add a new dimension of visual pickup to the normal means of eavesdropping, which focuses solely on capturing aural evidence. The courts, the legislature, and commentators agree that Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. §§ 2510-2520 and its progeny, the state wiretapping statutes, did not encompass videotaping or any means of electronic visual surveillance . Our Legislature in drafting section 700.15 seemed not to have considered it.
When, in 1968, most eavesdropping statutes were redrafted to comport with the requirements set forth by the Supreme Court in Katz v. United States, supra and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (), videotaping in industry, government and education was not widespread though it had been in use since 1956. 3 Certainly, warrants for videotaping must comply with the guidelines of Katz and Berger, since videotaping does capture conversations by means of electronic surveillance. Compliance would be accomplished if the statutory requirements of Article 700 are met. (See United States v. Cirillo, 499 F.2d 872 (2d Cir. 1974), upholding the constitutionality of the CPL eavesdropping provisions.) Consequently, although the warrant ordered here was not explicitly issued pursuant to CPL Article 700, it must at least meet the standards imposed by that statute to pass muster.
Since videotaping encompasses two components visual surveillance and aural surveillance Article 700 of the CPL which deals exclusively with aural communication cannot alone serve as predicate for issuing a court order to videotape. We must, therefore, examine Article 690 to determine if the seizure of visual images is within the ambit of its search warrant provisions.
Section 690.05(2) of the CPL, in pertinent part, provides:
"A search warrant is a court order and process directing a police officer to conduct a search of designated premises, . . . or of a designated person, for the purpose of seizing designated property or kinds of property . . .."
" Property" subject to seizure is defined in section 690.10(4) to include property which "constitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense." Thus, a visual observation may fall within the scope of property subject to be seized if it constitutes evidence or tends to demonstrate that an offense was committed.
Courts that have had occasion to consider the seizure that results from obtaining visual observations of a crime in progress in a private place, all indicate that the seizure will be legal if it is derived pursuant to a proper warrant issued by a neutral magistrate (People v. Abruzzi, 52 A.D.2d 499, 385 N.Y.S.2d 94 (2d Dept. 1976), affd., 41 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ----, 1977) and other cases cited supra, page ----, n.2. In Abruzzi, the Appellate Division, Second Department, found that visual observations by police in the course of committing a trespass on a doctor's property without a warrant, after having received complaints of sexual misconduct from the doctor's patients, was a search and seizure in violation of the Fourth Amendment. Implicit in this ruling, however, is the fact that a search...
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