Summary
In Marino, we held that the defendant was not entitled to suppression of tapes obtained pursuant to a wiretap warrant as a result of the People's noncompliance with the issuing court's instruction to file interim progress reports during the pendency of the wiretap "at least in the absence of any demonstration of substantial prejudice to the defendant" (id. at 775).
Summary of this case from People v. RodriguezOpinion
Argued January 10, 1980
Decided February 14, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ROSE L. RUBIN, J.
Richard A. Greenberg and Gretchen White Oberman for appellant.
John J. Santucci, District Attorney (Ira I. Schreiber and Charles N. Walsh of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The sole issue raised for our consideration is whether the absence in the record of proof that the District Attorney complied with the direction of the court issuing the warrant to file interim progress reports during the pendency of a wiretap necessitates suppression of the tapes obtained pursuant to that warrant.
The wiretap was authorized by an eavesdropping warrant issued on March 14, 1974 which required that "reports * * * be made to this Court by the District Attorney of Queens County, or his agent, fifteen (15) days after the installation of the electronic equipment stating the substance of the conversations seized and the progress of the investigation". The record does not disclose compliance with this direction. On April 16, 1974, based on an application which reported the results of the entire month's interceptions, the eavesdropping warrant was extended for a second 30-day period.
The statute (CPLR 700 .50, subd 1) does not itself require the filing of interim reports; rather it authorizes the issuing court to require such reports, apparently to facilitate judicial supervision of the wiretap. Whatever may be the range of judicial sanctions for failure to comply with such a directive, failure to do so, at least in the absence of any demonstration of substantial prejudice to the defendant, does not require suppression of the tapes or of derivative evidence. In this instance, defendant claims no prejudice other than pointing to the speculative possibility that had the required report been made the tap might have been terminated. Even this theoretical possibility may be disregarded in this instance, however, in view of the subsequent issuance of the extension order based on the delayed but more comprehensive report of the results of the original tap. In any event we observe that, while an interim report if filed as directed might have precipitated a termination of the wiretap by the issuing Justice, the failure to file such a report in no way exposed the intercepts themselves to risk that their fidelity might be compromised.
I concur in the result on the ground that the evidence adduced at the hearing shows that the evidence that would be suppressed was available in other forms and that, therefore, any error in failure to suppress the tapes was harmless (cf. People v Grant, 45 N.Y.2d 366).
The order of the Appellate Division should be reversed and the motion to suppress granted.
In the course of an investigation into alleged illegal drug activity the District Attorney of Queens County obtained a wiretap warrant in order to determine the source of the drugs and identify the suppliers. The warrant, issued on March 14, 1974, authorized interceptions for a period of 30 days. It provides, however, that "reports shall be made to this Court by the District Attorney of Queens County, or his agent, fifteen (15) days after the installation of the electronic equipment stating the substance of the conversations seized and the progress of the investigation." On April 16 the warrant was extended for an additional period of 30 days. Despite the extended telephonic surveillance the drug suppliers were never found.
At a hearing held on the defendant's motion to suppress the People were unable to show that they had made a progress report to the issuing Justice at the end of the initial 15-day period as required by the warrant. Indeed even on the day the original warrant was due to expire and an extension was needed, they did not report to the Justice who had issued the warrant, but applied instead to another Justice who was then at a funeral parlor attending the wake of the assistant prosecutor who had previously been in charge of this investigation.
Nevertheless the People argued at the suppression hearing that the court should excuse their failure to make progress reports on the theory that the second Justice implicitly did so by signing the extension order, and that the issuing Justice presumably would have done the same. The suppression court agreed, additionally observing that the reporting requirement was in any event purely ministerial in nature.
Central to all requirements relating to authorized wiretapping is the concept of strict judicial supervision. The sensitivity of the subject matter — the intimate and apparently confidential conversations of individuals — and the duration of the intrusion, often extending over several months, requires the courts to be especially vigilant in insuring that this particular type of search be conducted in strict compliance with all legal requirements and limitations. The court's role is not to passively monitor but to actively regulate the activity from the original warrant application through all phases of its execution (see, e.g., People v Washington, 46 N.Y.2d 116, 124).
A court issuing a wiretap warrant may direct that the prosecutor periodically report on the progress of the investigation (CPL 700.50, subd 1). This permits a conscientious court to make an informed judgment as to whether there is in fact a "need for continued eavesdropping" (CPL 700.50, subd 1). It is a practice for which the court has expressed a "strong preference" (People v Floyd, 41 N.Y.2d 245, 253).
By statute, once the court directs the prosecutor or his agent to make progress reports, the requirement is mandatory (CPL 700.50, subd 1), like the requirement that the tapes be sealed upon the expiration of the warrant (CPL 700.50, subd 2). We have held that this latter requirement must be strictly observed by those executing the warrant. A failure to seal the tapes (People v Nicoletti, 34 N.Y.2d 249) or any unwarranted delay in doing so (People v Washington, 46 N.Y.2d 116, supra) calls for suppression of the evidence. Indeed even when the tapes have been sealed, any unauthorized breaking of the seals, if only on the eve of trial in order to prepare the case, must nevertheless result in suppression of the evidence (People v Sher, 38 N.Y.2d 600). It is also important to note that this failure to fully observe the sealing requirement was held to be fatal, even though the lower court could have authorized unsealing, and presumably or implicitly did so or would have done so, in view of its later admission of the unsealed tapes at trial over defense objections.
In these cases, law enforcement officials were placed on notice that they "must be sensitive to the fact that, just as a warrant to wiretap may only be granted upon a showing of strict compliance with the law, so will its execution have been for nought unless there has been meticulous adherence to the terms of the warrant and the statute pursuant to which it issued" (People v Washington, supra, p 124). We have noted that strict compliance with the warrant requirements serves to prevent potential abuses. There is no need for the defendant to show actual prejudice when the authorities have violated the warrant's terms (People v Nicoletti, supra, p 253; People v Sher, supra, pp 604, 605; People v Washington, supra, p 123).
The requirement that the authorities make progress reports when directed by the court is no less important than the requirement that they seal the tapes when the warrants have expired. The sealing requirement is principally designed to insure the authenticity of evidence which has already been seized (People v Washington, supra, p 123). The progress report requirement, on the other hand, enables the court to actively control and minimize the State's intrusion on private conversations. That is not a collateral consideration, nor is it a purely ministerial task. On the contrary it is the court's primary obligation in overseeing wiretap activities under the Fourth Amendment.
Chief Judge COOKE and Judges JASEN, GABRIELLI and JONES concur; Judge MEYER concurs in a separate memorandum; Judge WACHTLER dissents and votes to reverse in an opinion in which Judge FUCHSBERG concurs.
Order affirmed in a memorandum.