The opinion of the court was delivered by: POLLACK
The Motion Before the Court
The defendants Arthur Tortorello (a/k/a Artie Todd) and John Dennett moved before trial to suppress tape recorded evidence obtained by electronic surveillance pursuant to state court orders made in 1969. The defendants contended that the state court orders were improperly i) sought, ii) granted, iii) renewed, and iv) executed. In addition, having been advised on March 10, 1972, that from 1961 to 1963 Tortorello had been the subject of F.B.I. electronic surveillance in which trespass was involved, Tortorello contends that the 1961-63 federal surveillance set in motion the chain of events leading to the government's evidence now sought to be suppressed which was obtained under the 1969 state court orders.
Decision on the motion to suppress was held in abeyance until after the trial. The questioned tape recordings were utilized on the trial by the government. The moving defendants were found guilty of all charges against them of violation of the anti-fraud provisions of the federal securities laws. In consequence, if the eavesdrop evidence was illegally obtained, the verdicts must be set aside.
The principal issue now to be considered is whether the 1969 electronic surveillance complied with Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. §§ 2510-20) which created uniform prerequisites and standards to be observed by state and federal authorities.
The State and Federal Legislation
It will be useful to review the sequence and scope of the state and federal legislation involved.
At its 1968 session, the New York Legislature passed a bill prescribing a comprehensive scheme for the restricted issuance of eavesdropping warrants,
based upon strict standards of probable cause and necessity and demanding scrupulous particularity in the description both of the person and place upon which the eavesdropping is to be conducted and the nature of the evidence sought thereby. N.Y. Laws 1968, c. 546. The new statutory scheme was designed to comply with the constitutional standards enunciated in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The bill became effective June 5, 1968.
Within a few days, however, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, Title III of which relates exclusively to eavesdropping. This new federal law provided that in order to protect the privacy of wire and oral communications, it was necessary for Congress to define on "a uniform basis" the circumstances under which eavesdrops may be authorized by the individual states. The federal Act became law on June 19, 1968.
On May 26, 1969, New York State enacted Chapter 1147 of the Laws of 1969, effective June 26, 1969, which harmonized state law with federal law. Title III, §§ 814-825, Criminal Procedure Law (now Article 700 of the New York Criminal Procedure Law).
The evidence which is questioned on this motion consists of conversations of the defendant Tortorello which were intercepted and recorded by New York City's police authorities pursuant to a series of eavesdropping warrants authorized by the state court. These conversations took place at Todd Associates, 120 West 44th Street, New York, New York and over Todd's office telephone lines.
The Interception Order of December 10, 1969
The first order authorizing eavesdropping on conversations at Todd's premises was signed on December 10, 1969, by State Supreme Court Justice Mitchell D. Schweitzer on the application of the New York County District Attorney. The application for this order incorporated prior orders by reference which are referred to as the "Seven Orders", together with their supporting affidavits.
The "Seven Orders" Preceding the Order of December 10, 1969
The "Seven Orders" were a series of earlier eavesdropping warrants, the earliest of which was signed on June 2, 1969. These authorized eavesdrops at the offices and tapping of the telephone lines of Rio Coin Corporation and of Jacob Maishlish (also Jack Mace) at 1147 Avenue of the Americas.
The "Seven Orders" were based essentially on the finding by Justice Schweitzer of reasonable grounds to believe that Mace, Tortorello and others used the Rio Coin offices and facilities to conduct illicit dealings in stolen goods and forged credit cards.
It was during the Rio Coin surveillance that the state authorities applied for and obtained a second set of State Court orders which authorized surveillance of Tortorello and eavesdropping and telephone taps at the Todd Associates office. Suspect conversations seemingly dealing with fraudulent security transactions were unanticipated fruit of the surveillance of the Todd Associates offices and facilities. The surveillance team thereupon notified federal authorities, and SEC and Joint Strike Force representatives joined the state surveillance team. It was this surveillance that yielded the intercepted and recorded communications now sought to be suppressed.
Since the validity of every step of the procedures involved in procuring the intercepted conversations has been questioned, each will be treated in turn.
1. The Applications for the Eavesdrop Warrants
The defendants contend that the eavesdrop warrants were improperly applied for because (1) the District Attorney of New York County, Hon. Frank Hogan, did not submit his application therefor in person to the issuing Justice, but acted through his assistant, and (2) the contents of the affidavits of both the District Attorney and his assistant were not sworn to by these officials in the presence of the issuing Justice but before a notary public prior to the appearance of the assistant before the Justice.
The evidentiary hearing disclosed the use of the following procedure.
Lawrence Hochheiser, an Assistant District Attorney, was assigned to the Rio Coin and ultimately to the Todd Associates cases. He prepared all of the proposed eavesdrop application papers. These were then reviewed in conference between Hochheiser and the Chief of the Rackets Bureau, Alfred J. Scottie, particularly where an original as distinguished from a renewal order was to be sought. Hochheiser then presented the proposed application papers with any conference amendments to the District Attorney himself. With one exception,
Mr. Hogan gave each application his personal attention, with Hochheiser at hand for ...