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PEOPLE STATE NEW YORK v. JOURDON MAJOR FORD (10/14/69)
SUPREME COURT OF NEW YORK, CRIMINAL TERM, QUEENS COUNTY
1969.NY.43051 <http://www.versuslaw.com>; 305 N.Y.S.2d 772; 61 Misc. 2d 419
October 14, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.JOURDON MAJOR FORD, DEFENDANT
Lefcourt, Garfinkle, Crain, Cohn, Sandler & Lefcourt (Gerald Lefcourt of counsel), for defendant.
Thomas J. Mackell, District Attorney (Jerome M. Pines of counsel), for plaintiff.
J. Irwin Shapiro, J.
On January 27, 1969 defendant was indicted for the crime of possessing a loaded pistol on January 23, 1969 at the Kennedy International Airport. The crime came to light when defendant, who was about to board a plane bound for California, was arrested by an agent of the Federal Bureau of Investigation. Subsequently, three notices were served upon defendant by the District Attorney of Kings County pursuant to former section 823 of the Code of Criminal Procedure*fn* informing defendant, respectively, (1) that an eavesdropping warrant had issued on November 21, 1968 authorizing interception of conversations on his telephone from November 22 to December 11, 1968; (2) that a similar warrant had issued on December 24, 1968 authorizing the same interceptions from December 26, 1968 to March 14, 1969; and (3) that an eavesdropping warrant had issued on December 24, 1968 authorizing interceptions of conversations in his apartment in Brooklyn from December 26, 1968 to March 15, 1969. Each notice also stated that during the periods of authorized eavesdropping interceptions, conversations had been overheard.
Based upon the aforesaid notices (copies of which are annexed to the moving papers) defendant makes this motion for an order directing the disclosure to him of all logs, records, and memoranda of electronic surveillance made pursuant to the eavesdropping warrants set forth in the three notices served upon him. Upon the same basis, defendant also demands, "under the authority of section 823 of the Code of Criminal Procedure," that he be furnished with certified copies of the applications made by the People which formed the basis for the issuance of the three eavesdropping orders set forth in the aforesaid notices and "any and all existing applications for renewals, amendments and returns required by statute."
Upon a different basis (hereinafter discussed) defendant seeks, in addition, disclosure of "any and all logs, records and memoranda of any electronic surveillance or other mechanical means of overhearing conversations made not pursuant to statutes or made by Federal or other authorities not within the jurisdictional authority of New York State's Code of Criminal Procedure directed at defendant or any unindicted alleged co-conspirator herein or conducted at or upon or directed at the premises of defendant or unindicted alleged co-conspirator herein," as well as the name and business address of any person who conducted any of the surveillance above mentioned which were "not the subject of any log, record or memorandum."
Defendant also seeks an evidentiary pretrial hearing to determine whether the People have turned over all records of electronic surveillance and the extent to which such surveillance tainted the evidence upon which the indictment in this matter was based and which the People intend to use at the trial, and for a dismissal of the indictment in the event that it should be disclosed at such hearing that the indictment was the product of illegally obtained evidence.
The principal questions to be answered by this motion are (1) the extent to which, if at all, the prosecution is required to divulge to a defendant the conversations obtained from electronic surveillance of his telephone or his home or of other locations where such conversations were intercepted, and (2) whether the papers upon which warrants for such surveillance were issued must be furnished to him.
DISCLOSURE OF CONVERSATIONS OBTAINED BY ELECTRONIC SURVEILLANCE UNDER THE WARRANTS OF NOVEMBER 21 AND DECEMBER 24, 1968.
A person whose telephone or home has been subjected to electronic surveillance pursuant to a warrant issued by a court of competent jurisdiction does not have an absolute right to a disclosure of intercepted conversations obtained thereby. A disclosure is not constitutionally mandated where such surveillance is lawfully made pursuant to a properly issued warrant. In Giordano v. United States (394 U.S. 310) the court so determined when it held that where cases were remanded to the District Court to determine, in conformity with Alderman v. United States (394 U.S. 165), whether surveillance was illegal, "a finding by the District Court that surveillance was lawful would make disclosure and further proceedings unnecessary" (p. 313). To make its meaning even clearer, if need be, Mr. Justice Stewart in a concurring opinion in Giordano, observed the converse as follows (p. 313): "As we made explicit in Alderman, Butenko, and Ivanov, the requirement that certain products of governmental electronic surveillance be turned over to defense counsel was expressly limited to situations where the surveillance had violated the Fourth Amendment."
Since there is a presumption that the warrants in this matter were properly and legally issued (see, e.g., People v. Alfinito, 16 N.Y.2d 181, 186; also, People v. Childers, 54 Misc. 2d 752, 753), it follows, everything else being equal, that the electronic surveillance had pursuant thereto was legal and did not violate defendant's Fourth Amendment rights. Therefore, in the present state of the record, disclosure to defendant of the product (the conversations) of that surveillance is not required as a matter of right.
That does not mean, however, that disclosure to a defendant of intercepted communications is absolutely and without exception interdicted, although obtained pursuant to a lawful warrant. Subdivision 3 of section 822 of the Code of Criminal Procedure (enacted by chapter 1147 of the Laws of 1969, eff. June 25, 1969), which provides that notice of the issuance of an eavesdropping warrant shall be given to the person named in the warrant (cf. former section 823 of the Code of Criminal Procedure, repealed by chapter 1147 of the Laws of 1969), also provides that: "The justice, upon the filing of a motion by any person served with such notice, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and warrants as the justice determines to be in the interest of justice." To carry out the purpose and intent of this statute, and to be able properly to exercise the discretion thus vested in the court, I procured and thoroughly examined the eavesdropping warrants involved here and the voluminous papers upon which they were issued. Such examination has persuaded me that there was ample basis for the issuance of the warrants. Equally important in this context, and in determining whether proper judicial discretion requires the disclosure of the intercepted conversations, is whether the public safety and welfare may be harmed by revealing those conversations. I have concluded that because, except for one small instance, the interceptions are not relevant to the charge in this case and because the public rights may be endangered, disclosure should be denied. I therefore refuse, upon the present state of the record, to exercise the discretion granted to me by the statute to make the intercepted communications available to the defendant.
DISCLOSURE OF THE AFFIDAVITS AND THE OTHER PAPERS UPON WHICH WARRANTS WERE ISSUED.
Defendant's demand that he be furnished with copies of the papers upon which the eavesdropping warrants were issued is "made under the authority of section 823 of the Code of Criminal Procedure." The statute referred to by defendant is the one repealed and replaced by section 822. There is nothing in the repealed statute expressly requiring that the application upon which an eavesdropping warrant is issued be turned over to a defendant. As above noted, section 822 of the newly enacted statute does vest discretion in the court in that regard. However, here there is no constitutional room for the exercise of judicial discretion to deny the disclosure to defendant of the applications upon which the eavesdropping warrants issued, for in his affidavit the District Attorney admits that he has "investigated the source of information leading to the arrest and indictment of defendant and learned that a part of the information leading to the defendant's arrest did, in fact, stem from eavesdropping." In such a situation a defendant is entitled to be furnished with all of the papers upon which the warrant issued so that he may, if so advised, attack their legal sufficiency for the issuance of the warrant, and thus pave the way for a motion to suppress any evidence obtained by such eavesdroppings which served as the basis of the charge in the indictment or which led to such evidence. (People v. McCall, 17 N.Y.2d 152, 159; People v. Rizzo, 50 Misc. 2d 458, 460; also, see, People v. Munger, 24 N.Y.2d 445, 453; People v. Morhouse, 21 N.Y.2d 66, 77; Kolod v. United States, 390 U.S. 136.)
The rationale of this requirement is apparent. As the court observed in McCall (p. 159): "A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search warrant or order for interception is all right if a Judge has seen fit to sign it." Moreover, since "the [Fourth] Amendment now affords protection against the uninvited ear," and oral statements, if illegally overheard, and their fruits are also subject to suppression (Alderman v. United States, 394 U.S. 165, 171; Katz v. United States, 389 U.S. 347, 351-352), the requirement that a defendant be furnished with a copy of the application upon which an eavesdropping warrant issued is, just as in the case of a search warrant, of constitutional dimension.
The District Attorney opposes any disclosure whatever to the defendant of the papers upon which the warrants issued upon the ground that the surveillance here was legal and upon the further ground that the identity of an informer should not be revealed because "this would lead to great danger for the informant with a resulting reluctance to cooperate with law-enforcement ...