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UNITED STATES v. AUSTIN

April 14, 1975

UNITED STATES of America
v.
Billy AUSTIN et al., Defendants



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order (April 14, 1975)

 MISHLER, Chief Judge.

 Defendants Harriet Evans, Robert Ray Daniels and John Bryant *fn1" move to suppress evidence derived from interceptions of telephone conversations made pursuant to an order entered by Mr. Justice Michael Kern of the Supreme Court, Kings County, on September 1, 1971, and renewed on September 30, 1971.

 The order signed by Justice Kern on September 1, 1971, authorized interception of the telephone communications of Robert Ray Daniels and "J. D." China. Likewise, the renewal order of September 30, 1971, named only Daniels and J. D. China as parties whose conversations were to be seized. The order specified that the communications to be seized were to pertain to the commission of drug offenses described in Article 220 of the Penal Law of New York, McKinney's Consol.Laws, c. 40. There was no other statement in the original order concerning minimization or limitation of the type of conversations to be seized, although the renewal order did contain a minimization requirement. Together with its motion papers, the government has submitted an affidavit, sworn to by one of the officers who conducted the interceptions at issue, stating that this officer and the other officers carrying out the electronic surveillance pursuant to Justice Kern's order were instructed to terminate interception of all calls not related to the narcotics investigation. *fn2" The affidavit further states that during the course of their surveillance, the officers strictly adhered to these instructions.

 Defendants Evans and Daniels claim that the absence of a minimization requirement in the original order violates the terms of § 700.30(7) of the Criminal Procedure Law of New York *fn3" and thereby renders the order illegal. CPL § 700.30(7) specifically states that an eavesdropping warrant must contain "a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping under this article . . . ." As previously stated, the original order signed by Justice Kern contained no such provision.

 Since the warrant and the interceptions were carried out under the New York State eavesdropping statute, §§ 700.05 et seq., it is clear that the challenges directed at their validity must be determined according to New York law. United States v. Rizzo, 491 F.2d 215, 217 (2d Cir. 1974); United States v. Manfredi, 488 F.2d 588, 598 n.7 (2d Cir. 1973). The New York courts have not developed any consistent position on this question however. Some courts have held that the failure to include a minimization directive is a fatal defect, People v. Sturgis, 76 Misc.2d 1053, 352 N.Y.S.2d 942 (Sup.Ct.1973); People v. Kennedy, 75 Misc.2d 10, 347 N.Y.S.2d 327 (Green Cty. Ct.1973); while other courts have held that the omission is "nothing more than a 'de minimis' oversight." People v. Solomon, 74 Misc.2d 926, 346 N.Y.S.2d 938 (Sup.Ct.1973). *fn4"

 Aware of this division of opinion, the Court of Appeals in United States v. Manfredi, supra, found it necessary to adopt its own interpretation of § 700.30 (7). In Manfredi, neither the original nor the renewal warrant contained a minimization directive. However, the affidavit submitted in support of the warrant application did contain an agreement to minimize in accordance with the requirements of § 700.30(7). Id. at 592. The court reasoned that since the underlying purpose of this section was to assure that those carrying out the interceptions were aware of the minimization requirement, so long as this purpose was accomplished, the absence of a specific minimization provision in the order was not fatal. The court stated therefore that the orders and the supporting affidavits should be read together in a "common-sense and realistic fashion" to determine whether the officers were aware of the minimization requirement. Applying this reading, the court held that the order was not invalid since the affidavit evidenced knowledge of the minimization requirement and an agreement to abide by it. Id. at 598. See United States v. Cirillo, 499 F.2d 872, 879 (2d Cir. 1974).

 In United States v. Cirillo, supra, the Court of Appeals applied this same reasoning to a case involving facts virtually identical to those now before this court. In Cirillo, the court upheld a warrant in which neither the order nor the supporting affidavit contained a minimization directive. Instead, the court relied upon "other convincing evidence" which demonstrated that the officers conducting the wiretap were aware of the minimization requirement and abided by it. Id. at 879. In reaching this conclusion the court again emphasized the fact that the purpose of § 700.30(7) was accomplished despite the absence of minimization language in the order. In the present case, the government's affidavit and motion papers similarly demonstrate that the officers conducting the wiretap were aware of the minimization requirement and abided by it. Accordingly, the court concludes that the absence of a minimization directive did not violate § 700.30(7), and the motion to suppress on this ground must be denied.

 Evans and Daniels also allege that the officers conducting the wiretap failed to minimize interception of personal calls. This claim is apparently based solely on defendants' own conclusory allegations since the tapes have been made available for inspection by defense counsel, yet none has chosen to examine them. Nevertheless, it is clear that the burden of demonstrating compliance with the minimization requirement rests, at least in the first instance, with the government. United States v. Rizzo, 491 F.2d 215, 217 n. 7 (2d Cir. 1974). The affidavit submitted by the government states that although all calls were monitored, once a call was determined to be personal in nature the interception was terminated. Additionally, the government states that of the 649 calls monitored, 381 were apparently drug-related, while 267 were thought to be personal. Interception of most of the personal calls was terminated within the first minute of the conversation, although in a few instances a longer time was required to ascertain the nature of the call.

 On the basis of these statements, the court finds that the government has satisfied its burden of demonstrating compliance with the minimization instructions. As a basis for its conclusion, the court is guided by two decisions of the Court of Appeals in which minimization procedures quite similar to those employed in this case were upheld. United States v. Rizzo, supra at 217; United States v. Bynum, 485 F.2d 490 (2d Cir. 1973). In these decisions the court specifically stated that monitoring of all calls did not in itself constitute a violation of the minimization requirement. In this regard, the court noted the practical impossibility of devising an adequate screening process when the subject crime is a complex drug conspiracy. The court recognized that in such cases the only reliable method of surveillance requires initial interception of all conversations, and prompt determination of their nature. Here, where the interception of personal calls was promptly terminated, the court finds no basis for the defendants' claim.

 It should also be noted that the court has not reviewed the 649 conversations. *fn5" The court believes that the burden of rebutting the government's minimization claims falls on the defendants who allege the violation. Since defendants have failed to avail themselves of the opportunity to examine the tapes and have advanced nothing more than conclusory allegations concerning them, the court feels no obligation to look beyond the statements of the government. Naturally, were defense counsel to raise any specific disputes, the court would review the tapes. In the absence of such a dispute, however, the court will not spend the many hours it would require to review the tapes merely to satisfy defendants' suspicions.

 The third challenge to introduction of the wiretap evidence is asserted by defendant John Bryant. Bryant claims that since he was not named as a target of the investigation in the original or the renewal order, and that since no amendment was sought to include him as a target after he was overheard, the seizure of his conversations violated § 700.65(4) of the CPL. *fn6" Section 700.20 of the CPL requires that the eavesdropping warrant identify the persons whose conversations are to be intercepted, if known; and § 700.65(4) requires that the warrant be amended to include the name of the party whose conversation is intercepted when that conversation was not otherwise sought. The New York courts were divided on the correct interpretation of this section until the Court of Appeals resolved the question in People v. Gnozzo, 31 N.Y. 2d 134, 335 N.Y.S.2d 257, 286 N.E.2d 706 (1972). In Gnozzo, the court stated that where the communication intercepted involves the same crime specified in the warrant, the communication is one which is "sought" under that warrant, and no amendment is required. Id. at 142, 335 N.Y.S.2d at 260, 286 N.E.2d at 709. An amendment is required under this section when the intercepted communication involves a different crime than the one being investigated. Id. Therefore, although it is conceded that John Bryant was not named in the original or amended eavesdropping warrants, there is no claim that the intercepted conversation in which he was a participant involved a crime other than the one then under investigation. Accordingly, the overhearing of Bryant did not exceed the authority of the warrant since it was "sought", and no amendment was required. *fn7" United States v. O'Neill, 497 F.2d 1020 (6th Cir. 1974); People v. Gnozzo, supra; People v. Palozzi, 44 A.D.2d 224, 353 N.Y.S.2d 987 (4th Dept. 1974).

 The interpretation given § 700.65(4) in Gnozzo has been applied in several decisions which raised factual issues similar to those present in this case. United States v. O'Neill, supra, People v. Palozzi, supra. It is important to distinguish these cases from others such as United States v. Capra, 501 F.2d 267 (2d Cir. 1974) and People v. DiStefano, 45 A.D.2d 56, 356 N.Y.S.2d 316 (1st Dept. 1974), relied upon by defendants. In these latter cases either the defendant or the crime overheard were totally unrelated to the investigation initiated in the original order.In DiStefano, the defendant was overheard discussing a robbery, though the eavesdropping was directed at investigation of alleged gambling offenses. In Capra, the warrant authorized interception of the calls of Joseph DellaValle, while in fact the officers tapped the conversation of Stephen DellaCava. It is clear that in neither of these cases was there probable cause for interception of the particular conversations since they did not relate to the authorizing warrant. Consequently, an amendment was necessary.

 The court finds that the interception of John Bryant's telephone conversation was proper, and the motion to ...


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