People v. Washington

• Decision Date: 07 December 1978
• Citation: 412 N.Y.S.2d 854,46 N.Y.2d 116,385 N.E.2d 593
• Parties: , 385 N.E.2d 593 The PEOPLE of the State of New York, Appellant, v. Lionel WASHINGTON, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 854

412 N.Y.S.2d 854

46 N.Y.2d 116, 385 N.E.2d 593

The PEOPLE of the State of New York, Appellant, v. Lionel WASHINGTON, Respondent.

Court of Appeals of New York.

Dec. 7, 1978.

Eugene Gold, Dist. Atty. (Alan D. Rubinstein and Helman R. Brook, Brooklyn, of counsel), for appellant

Abraham Hecht, Forest Hills, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

The New York wiretapping statute (CPL art. 700) is the subject of the two questions presented on this appeal: 1. Does CPL 700.50 (subd. 2) ¹ allow the police to postpone presentation of recordings of intercepted conversations for judicial sealing until after the expiration of the final extension of an eavesdropping warrant? ² 2. Is this section's Immediate sealing requirement satisfied when transcription and rerecording difficulties delay police presentation of the tapes until 39 days after the expiration of the final extension order? For the reasons that are detailed below, we hold (1) that the police must present each eavesdropping tape for sealing immediately upon the expiration of the specific order covering the period during which it was recorded, and (2) that, in the circumstances of this case, allegations of technical difficulties and manpower shortages were inadequate excuses for delay.

In November, 1972, the police began their investigation of narcotics trafficking at a building on Lexington Avenue in Brooklyn. Visual surveillance of the premises revealed the frequent presence of known narcotics dealers, and undercover agents succeeded in purchasing drugs from these individuals on several occasions. Because they were unaware of the identities of many of those who were involved in the drug trade at that location, the police requested and received judicial authorization to install an eavesdropping device on June 13, 1973. ³ This device, placed in the handset of a telephone at the Lexington Avenue premises, was designed so as to pick up all conversations in the room as well as those conducted via telephone. The warrant was extended for an additional 30-day period on July 11, 1973.

On August 1, the police observed a previously unknown individual later identified as the defendant enter the building. A message to that effect was radioed to another officer, who activated a single tape recorder that received the signal transmitted by the eavesdropping device. This officer also monitored the conversation aurally as it transpired. The substance of the discussion was that the defendant desired to purchase one-half kilogram of heroin for $14,500. The sale was completed when the defendant returned to Lexington Avenue about three hours later. The police observed him enter the premises, receive a brown paper bag and then depart in a taxicab. Acting on the basis of the overheard conversation and their observations, but without a warrant, the police stopped the cab and arrested the defendant, recovering the paper bag, which was later determined to contain heroin. After he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the defendant admitted having "had the bag in (his) left hand".

The police obtained two further extensions of the eavesdropping warrant, but no other conversations involving the defendant were overheard before the device was removed on November 3, 1973. Nevertheless, the original tapes of the recorded conversations were not presented to the issuing Justice for sealing until December 14, 39 days after the expiration of the final extension order on November 5, 1973. One hundred twenty-five days had elapsed since the expiration of the extension order under which the defendant's conversations were seized.

Before trial, motions were made to suppress the tapes for defects in the applications for the eavesdropping warrant and extensions and for the failure of the police to comply with the statute's minimization requirements. ⁴ In addition, the defendant moved to suppress the heroin and his statement on the ground that the police did not have probable cause to arrest him. The motions were denied. At trial, a jury convicted him of criminal possession of a dangerous drug in the first degree, and he was sentenced to from 20 years to life imprisonment.

Upon appeal to the Appellate Division, the court remitted the case for a hearing on the extent of compliance with the sealing requirements of CPL 700.50 (subd. 2) (52 A.D.2d 645, 383 N.Y.S.2d 547). Criminal Term conducted a hearing and found that the Lexington Avenue operation consumed 120 reels of tape which recorded approximately 3,200 conversations; that all these tapes were sealed at the same time, December 14, 1973; that the 3 to 10 officers engaged in the investigation spent considerable time on duties other than monitoring the subject premises; that delays were caused by the incompatibility of the original and rerecording equipment, by the inability of some team members to identify all voices on the tapes, and by manpower reductions for vacations and court appearances; and that, before sealing, the tapes were kept at offices of the New York City Police Department or the District Attorney.

On the basis of these findings, the Appellate Division reversed the conviction and ordered a new trial. The court reasoned that, "(i)n the absence of at least a claim that the duplicate tapes of the intercepted communications were uniformly inaudible, or substantially below that quality which is necessary for transcription * * * the acknowledged need to complete the transcription of the 120 reels of intercepted communications did not constitute a satisfactory explanation for the 39-day hiatus between the expiration of the last extension of the eavesdropping warrant and the date upon which the original tapes were presented for sealing" (55 A.D.2d, p. 609, 389 N.Y.S.2d, p. 382). The analysis which follows leads us to affirm.

CPL 700.50 (subd. 2) demands judicial sealing of taped communications "(i) mmediately upon the expiration of the period of an eavesdropping warrant." The People contend that this language authorizes the police to await the expiration of the final Extension of an eavesdropping warrant before presenting any tapes for sealing, as was the case here. We find that construction at odds with both the terms of the statute and the policies it seeks to promote.

Our interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect. The insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one's individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights (Olmstead v. United States, 277 U.S. 438, 476, 478, 48 S.Ct. 564, 72 L.Ed. 944 (Brandeis, J., dissenting)). Bound up with this right are the individual's interest in personal autonomy, his need to control the image of his self that is projected to the world, and his right to freedom of expression (1 Dorsen, Bender & Neuborne, Political and Civil Rights in the United States 1048-1049 (4th ed. 1976)). These concerns are particularly germane to our construction of the sealing requirements, for it was the Supreme Court's constitutional analysis in Berger v. New York, 388 U.S. 41, 60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 that gave rise to the statutory command for a prompt return on an eavesdropping warrant (Blakey & Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame Lawyer 657, 677, n.46).

Appreciation of the constitutional dimensions of the problem has led this court to construe strictly article 700's sealing requirements (People v. Sher, 38 N.Y.2d 600, 381 N.Y.S.2d 843, 345 N.E.2d 314; People v. Nicoletti, 34 N.Y.2d 249, 356 N.Y.S.2d 855, 313 N.E.2d 336). A clear implication of those decisions is that, as a drastic and extraordinary remedy (see Berger, supra, 388 U.S. p. 58, 87 S.Ct. 1873; CPL 700.15, subd. 4), resort to eavesdropping must be circumscribed by extraordinary safeguards.

A due regard for these principles compels us to conclude that recordings of overheard communications must be presented for judicial sealing immediately upon the expiration of the specific warrant or extension covering the period when they were intercepted. CPL 700.50 (subd. 2) speaks in terms of "the expiration of the period of an eavesdropping warrant", not the termination of the final extension order. In contrast, title 18 ( § 2518, subd. (8), par. (a)) of the United States Code, upon which our statute was modeled (see Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL art. 700, p. 243), reads "expiration of the period of the order, Or extensions thereof " (emphasis ours). There is no escaping the conclusion that the Legislature's enactment of this variance was purposeful, especially in light of its frequent express references to warrants Or extensions in other sections of article 700 (see CPL 700.50, subd. 3; 700.60, subd. 1). Nor do we stand alone in so construing the statute (see People v. Glasser, 58 A.D.2d 448, 396 N.Y.S.2d 422 (Shapiro, J.); People v. Pecoraro, 58 A.D.2d 462, 471, 397 N.Y.S.2d 60, 66 (Damiani, J. P., and Hawkins, J., concurring)). ⁵

Requiring judicial sealing of tapes upon the expiration of each order is in harmony with the underlying purposes of CPL 700.50 (subd. 2) "to prevent tampering, alterations or editing; to aid in establishing the chain of custody; and to protect the confidentiality of the tapes" (People v. Nicoletti, 34 N.Y.2d 249, 253, 356 N.Y.S.2d 855, 858, 313 N.E.2d 336, 338, Supra ). The goal of strictly limiting the opportunity for tampering is particularly undermined by any rule that delays the onset of judicial supervision of the tapes (see People v. Glasser, 58 A.D.2d 448, 452, 396 N.Y.S.2d 422, 425, Supra; Cf. Biddle, Court-Supervised Electronic Searches: A Proposed...