Telephone Communications, In re

• Decision Date: 19 October 1967
• Citation: 55 Misc.2d 163,284 N.Y.S.2d 431
• Parties: In the Matter of Intercepting TELEPHONE COMMUNICATIONS Transmitted over Telephone Bearing No. _ _.
• Court: New York Supreme Court

Page 431

284 N.Y.S.2d 431

55 Misc.2d 163

In the Matter of Intercepting TELEPHONE COMMUNICATIONS Transmitted over Telephone Bearing No. _ _.

Supreme Court, Criminal Term, Queens County, Part I.

Oct. 19, 1967.

Thomas J. Mackell, Dist. Atty., Queens County, for the application.

MEMORANDUM

J. IRWIN SHAPIRO, Justice.

By personal affirmation of the District Attorney of Queens County, supported by an affidavit of a detective of the Special Investigating Unit of the Narcotics Bureau containing the details hereinafter set forth, the district attorney has applied for an order authorizing the interception of telephone communications over a specified telephone for a period of twenty days.

In Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the Supreme Court of the United States held that the New York statute governing eavesdropping and interception of telephone communications (Code Crim.Pro., § 813--a) is unconstitutional on its face (pp. 58, 63, 87 S.Ct. 1873). The question posed by this application for a wire-tap order is whether, absent any wire-tapping and eavesdropping statute, a wire-tap order may nevertheless be granted by this Court.

Berger held section 813--a of the Code of Criminal Procedure unconstitutional because under it a wire-tap or eavesdropping order could be granted upon affirmation that 'there is reasonable ground to believe that evidence of crime may be thus obtained * * *' and it therefore collided with the Fourth Amendment requirement of probable cause to justify the issuance of a privacy-invading warrant because there was no provision mandating a showing that any Particular offense had been or was being committed and because the statute, in its 'broad sweep,' was defective in failing to require, among other things, a particular description of the conversations sought. (Berger, supra, pp. 54--56, 87 S.Ct. 1873.) But Berger did not purport to bar all wire-tap or eavesdropping orders as unconstitutional, for, though declaring section 813--a to be unconstitutional, the Supreme Court reaffirmed its holding in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 that an order permitting eavesdropping granted on an affidavit setting out in detail the conversations with a particular person evidencing the commission of a crime, proof of which was being sought, and containing other 'discriminate circumstances' which fully met the 'requirement of particularity' of the Fourth Amendment could constitutionally issue. (388 U.S. pp. 56--57, 63, 87 S.Ct. 1873). In holding the New York statute constitutionally offensive, the court specified seven factors, a showing of which is deemed essential to justify the issuance of a valid wire-tap order which would conform with the requirements of the Fourth Amendment (58--60, 87 S.Ct. 1873). They are:

1. A showing of probable cause to believe that a Particular offense has been or is being committed;

2. A particular description of the property or conversations sought;

3. A limitation of the wire-tapping or eavesdropping to a period of time shown to be reasonably necessary under the circumstances;

4. A requirement that if the order is to be extended there be not only a showing that such extension is 'in the public interest,' but that there is 'present probable cause for the continuance of the eavesdropping.';

5. A requirement that the wire-tapping or eavesdropping be discontinued once the conversation sought is seized, even though it be prior to the expiration date of the order;

6. A requirement of notice as is the case with conventional warrants;

7. A requirement for a return of the warrant.

None of the foregoing is contained in the New York statute and the Court summarized these constitutional gaps by saying (p. 60, 87 S.Ct. p. 1884), 'In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.' In answer to the rhetorical postulate that 'neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements,' the court pointed out that it had in the past, under specified conditions and circumstances, sustained the use of eavesdropping devices where the affirmation or affidavit submitted in support thereof complied with the requirements of the Fourth Amendment (p. 63, 87 S.Ct. 1873).

With this analysis of Berger I return to the question posed at the outset, namely: Does this court have the authority to issue a wire-tap order absent a statute granting it such right and delineating the boundaries thereof?

Section 813--a of the Code of Criminal Procedure was originally enacted by Chapter 924 of the Laws of 1942. The purpose of the enactment was to implement Article 1, section 12, of the New York State Constitution which became effective on January 1, 1939. (Art. XX, § 1.) That constitutional provision, so far as here pertinent, reads:

'The right of the people to be secure against unreasonable interception of telephone * * * communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.'

The absence of a statute implementing this constitutional provision does not render it sterile and incapable of fulfilling its specified functions. Generally speaking, provisions in a constitution are deemed self-executing. (People v. Carroll, 3 N.Y.2d 686, 691--692, 171 N.Y.S.2d 812, 816--817, 148 N.E.2d 875, 876--877; People v. Duchin, 16 A.D.2d 483, 229 N.Y.S.2d 46, affd. 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17; People v. Diaz, 10 A.D.2d 80, 83, 198 N.Y.S.2d 27, 29, affd. 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 411.) In the Carroll case the court said, at 3 N.Y.2d page 691, 171 N.Y.S.2d page 816, 148 N.E.2d page 877:

'* * * Whereas initially the presumption was that provisions in a Constitution were merely general directions and that legislation was necessary to effectuate them, it is now presumed that constitutional provisions are self-executing (State ex rel. Russell v. Bliss, 156 Ohio St. 147, 101 N.E.2d 289; Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P.2d 236; State ex rel. Noe v. Knop, La.App., 190 So. 135, 142--143 (La.Ct.App.); 11 Am.Jur., Constitutional Law, § 72, p. 689, and cases there cited).'

Invoking the presumption that constitutional provisions are self-executing, particularly where they contain operational details, it would seem that Article I, section 12, of the constitution is viable and self-operative. The specific details contained in that provision clearly indicate that it was not intended merely as a declaration of principles which would be subject to the condition precedent of implementation by enabling legislation. If that were not the case, and if implementation by law were thought necessary, the drafters of the constitution doubtless would have provided generally 'against unreasonable interception of telephone and telephonic communications' with a specific provision for enabling legislation. Instead the drafters saw fit to detail the factors required for an interception order, namely: 'reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purposes thereof.' An additional indication of the self-executing property of the constitutional provision may be drawn from the fact...