55 Misc. 2d 163 | N.Y. Sup. Ct. | 1967
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 20 days.
In Berger v. New York (388 U. S. 41) 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). The question posed by this application for a wiretap order is whether, absent any wiretapping and eavesdropping statute, a wiretap order may nevertheless be granted by this court.
Berger held section 813-a of the Code of Criminal Procedure unconstitutional because under it a wiretap or eavesdropping order could be granted upon affirmation that “ there is reasonable ground to believe that evidence of crime may thus be obtained ’ ’ and it therefore collided with the Fourth Amendment requirement of probable cause to justify the issuance of a
1. A showing of probable canse 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 wiretapping 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 eavesdrop.”;
5. A requirement that the wiretapping 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): “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,” (p. 63)
With this analysis of Berger I return to the question posed at the outset, namely: Does this court have the authority to issue a wiretap 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 section 12 of article I 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; People v. Duchin, 16 A D 2d 483, affd. 12 N Y 2d 351; People v. Diaz, 10 A D 2d 80, 83, affd. 8 N Y 2d 1061.) In the Carroll case the court said (p. 691): “ 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; Morgan v. Board of Supervisors, 67 Ariz. 133; State ex rel. Noe v. Knop, 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 section 12 of article I 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 legis
If it be contended that section 12 of article I of the Constitution does not .set forth, in extenso, all the requirements needed for a constitutionally valid wiretap order, the short answer is that reliance can be placed on the presumption that the courts, in carrying out State constitutional mandates, will do so with full awareness and recognition of all Federal due process requirements. In the Carroll case (3 N Y 2d 686, supra) which dealt with another article of the New York State Constitution, in answer to the contention that the questioned provision could not be deemed self-executing and self-operative because it lacked sufficient procedural detail, the court said (p. 692): ‘ ‘ Appellant’s principal objection to the conclusion reached is that sufficient procedural detail has not been supplied by the Constitution and that so much has been left unprovided for by that section in application it would lead to £ chaotic individuality ’. We disagree. The basic and necessary procedural requirements have been provided. Whatever other questions arise can be competently handled by our courts until such time as the Legis-
In People v. Grossman (20 N Y 2d 346, 349) the court, citing and relying on Berger, reversed a conviction which rested on eavesdropping by trespass (not wiretapping) and said: “Of course, the statute now having been held invalid, as violative of the Fourth Amendment of the Federal Constitution, it is as if there had never been any valid authority for the police to act as they did.”
Despite this explicit holding I am of the opinion that it is not a determinative pronouncement on the fact situation here presented. Grossman was argued in the Court of Appeals on May 31, 1967. An examination of the record and briefs in that case reveals that the question of the self-executing nature of the New York constitutional provision governing wire-tapping and eavesdropping was neither presented to nor argued in any way in the Court of Appeals. That is quite understandable when it is noted that Berger was decided on June 12, 1967, after Grossman had been argued and the decision in Grossman was not handed down until July 7,1967. Consequently the Court of Appeals did not consider nor pass upon the proposition that absent section 813-a a valid order could have issued under the self-executing quality of the New York State constitutional provision if the guidelines set down in Berger were followed.
In view of the foregoing I have come to the conclusion that despite the holdings in Berger and Grossman declaring section 813-a of the Code of Criminal Procedure unconstitutional, (at least so far as eavesdropping by trespass is concerned, which was the situation in both cases), section 12 of article I of the New York State Constitution remains in full force and effect and may serve as a basis for a constitutionally valid wiretap order if the guidelines set down in Berger are contained in the papers upon which it is granted.
In this case the affirmation and affidavit submitted in support of the proposed wiretap order fully comply with the Berger requirements. They show (1) that a reliable informant, upon whose information arrests have been made which resulted in “large seizures of illegal narcotics,” has given the police specific and detailed information regarding the person whose telephone is sought to be intercepted; (2) that while the person whose phone is sought to be intercepted could be arrested upon the basis of such information from the informant and inde
Concluding, as I have, that a wiretap order may constitutionally issue, given the required evidentiary basis, the court is signing the order submitted by the District Attorney authorizing the placing of a wiretap on and the interception of telephone communications over the telephone therein specified.