The opinion of the court was delivered by: NEAHER
Defendants were indicted on three counts of gambling activities in violation of 18 U.S.C. §§ 1084 and 1952 and conspiracy to violate the foregoing statutes. Defendants Harris and Katz challenge the validity of the indictment by a broadscale attack on the legality of State-authorized eavesdropping warrants and interceptions of communications made pursuant thereto. They seek by a voluminous motion to undermine the indictment by means of suppression of the intercepted communications and derivative evidence upon which the indictment appears to be founded.
Three State court orders and subsequent extensions signed by Justice Frank D. O'Connor are involved. The first is an eavesdropping warrant signed on September 10, 1971, authorizing the interception of oral communications on the premises of the Long Island Veterans Social Club, 20-15 Steinway Street, Astoria, New York. This warrant was effective between September 13, 1971 and October 12, 1971, and was twice extended until December 11, 1971. On September 21, 1971, a second warrant was signed, authorizing the interception of wire communications over telephone number 728-9176, also located at 20-15 Steinway Street, from September 22, 1971 to October 21, 1971. The third warrant, signed on October 15, 1971 and effective until November 13, 1971, authorized interception of wire communications over telephone numbers 478-8200, 1, 2 and 3, listed to Distinctive Tours Limited, located at 9l-31 Queens Boulevard, Forest Hills, New York.
The third warrant was directed against communications to and from defendant Carubia. The warrant was extended on November 12, 1971 until December 13, 1971, additionally authorizing the interception of communications of defendant Katz. Defendant Harris alleges that during the course of this interception his communications were intercepted. He further alleges that the application for the second warrant directly resulted from the conversations overheard under the first warrant, and that the application for the third warrant grew out of the monitorings under the first and second warrants.
The Constitutionality of the Federal and State Wiretap Statutes
Defendants assert that the federal statutes contained in Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510 et seq., and the State statutes in N.Y. Criminal Procedure Law (CPL) Article 700 are unconstitutional on their face. The federal issue is presently before the Supreme Court in United States v. Giordano, 469 F.2d 522 (4 Cir. 1972), cert. granted, 411 U.S. 905, 93 S. Ct. 1530, 36 L. Ed. 2d 194 (1973). The constitutionality of these statutes has heretofore been uniformly upheld. See United States v. Manfredi, 488 F.2d 588, 597 (2 Cir. 1973); United States v. Tortorello, 480 F.2d 764, 772-75 (2 Cir.) (and cases cited in n. 6), cert. denied, 414 U.S. 866, 38 L. Ed. 2d 86, 94 S. Ct. 63 (1973).
Defendants particularly contest the constitutionality of the notice of eavesdropping provisions of the federal and State statutes. 18 U.S.C. § 2518(8) (d) provides that the judge issuing an order shall notify the persons named in the order within a reasonable time after its termination but in no event later than 90 days. CPL § 700.50(3) contains a nearly identical provision. In addition, CPL § 700.50(4) provides that the notice required under § (3) may be postponed by order of the issuing judge for a reasonable period of time on a showing of exigent circumstances.
Defendants contend that § 2518(8) and the State eavesdropping laws are unconstitutional on their face in that they fail to require (1) a showing of exigent circumstances prior to the dispensing of notice of eavesdropping and (2) a "return on the order", or any other form of "notice to the party trapped." Evidently defendants have overlooked CPL § 700.50(3, 4). Moreover, in United States v. Manfredi, supra at 601-02, the Court of Appeals rejected a claim that postponement of notice of surveillance was violative of the federal and State provisions, affirming the district court's finding that the postponement authorized by the State judge was reasonable under all the circumstances. In so doing, the court by implication upheld the constitutionality of the State as well as federal notice of eavesdropping provisions. See also United States v. Tortorello, supra at 774.
Underlying many of defendants' claims is their contention that no probable cause was demonstrated for the issuance of the interception orders and extensions.
Supporting the application of District Attorney Thomas J. Mackell for the September 10th warrant was the affidavit of Detective Doherty. Doherty stated that he had been observing activities at the Long Island Veterans Club during late August and early September. The club was frequented by a large number of individuals, all of whom had prior arrest records. Most of these people had previously been arrested on gambling charges. The operations of the club and the visits by its apparent members were indicative of ongoing gambling activities. The club was generally open between 11:00 a.m. and 8:30 p.m. and was particularly active at hours immediately prior to racing and sporting events. Visitors remained in the club for short periods of time, generally not exceeding one-half hour. Numerous individuals were seen entering the club perusing small slips of white paper and exiting counting money. On one occasion Doherty retrieved a piece of paper which had been thrown away by a person leaving the club. It contained a point spread on professional baseball and football games. In short, the supporting papers established probable cause for issuance of the September 10th order.
The supporting papers for the September 10th order also made clear that law enforcement officials were investigating a large-scale gambling operation in which the Long Island Veterans Club was a drop-off point for bets and money for ultimate delivery to other persons. The club was frequented by 40 to 50 individuals. Investigation of participation by these persons, as well as by couriers and unknown recipients, clearly justified subsequent extension orders, as well as the September 21st and October 15th orders and extensions.
Interceptions authorized pursuant to the first order confirmed that the club was being utilized for the placing of bets. These combined with the facts previously set forth provided probable cause for the issuance of the orders covering the telephone subscribed to by the club and the telephone numbers listed to Distinctive Tours, Inc. (of which defendant Carubia was president) directed at conversations of individuals seen, overheard or mentioned in prior surveillance and interception.
Defendants in particular attack the order extending the October 15, 1973 order, asserting that the purposes of the wire interception had been achieved. However, as previously noted, the application papers reveal that the State was investigating an extensive operation and seeking to obtain evidence concerning numerous participants, including "the names and whereabouts of the kingpins of the operation and the ultimate destination and receiver of the money transferred . . . ." (Affidavit of Walter J. Lewis, November 12, 1971.) While probable cause may have existed for the arrest of various individuals, the trail did not end there. Cf. United States v. Lanza, 341 F. Supp. 405, 419-20 (M.D. Fla. 1972). As the court there noted (at 420),
to suppose that the investigation should have been terminated once the bottom of the ladder had been found, once the persons who took individual wagers had been identified, is unrealistic. These are but the tip of the iceberg; they can always be replaced. To root out the offense, those who are ultimately responsible for its existence and organization must be found, and the affidavit amply demonstrates that this would be impossible by any means other than by using monitoring to observe the actual transaction of business between the sellers and their superiors.
The supporting applications clearly demonstrate that justification for the interceptions had not terminated and hence that there was ...