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ZAGARINO v. WEST

September 30, 1976

Michael ZAGARINO, Petitioner,
v.
Theodore WEST, Warden, Brooklyn House of Detention for Men, Respondent



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

 MISHLER, Chief Judge.

 The petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. He is currently serving a one-year sentence imposed after a plea of guilty on April 16, 1974, to attempted criminal possession of stolen property in the first degree, N.Y. Penal Law §§ 110.00 and 165.50. The Appellate Division affirmed the judgment without opinion on December 17, 1975, 50 A.D.2d 850, 377 N.Y.S.2d 347. Leave to appeal to the New York Court of Appeals was denied on February 9, 1976. In his application for a writ of habeas corpus, petitioner claims that his identification as a suspect in an investigation of a car theft conspiracy, and the subsequent gathering of evidence against him, was the result of the execution of an illegal wiretap. Consequently, petitioner asserts, his incarceration constitutes a "violation of his rights under the fourth and fourteenth amendments of the United States Constitution."

 The police investigation of the car theft conspiracy began when a confidential informer revealed that a Marvin Nadbourne and "other unknown individuals" were stealing automobiles, altering the appearance of the stolen vehicles and then selling the cars. Surveillance of Nadbourne corroborated the informer's information, as did the monitoring, with the informer's consent, of three telephone conversations between the informer and Nadbourne. On September 22, 1971, Judge Irwin Shapiro, Associate Justice of the Appellate Division, Second Department, signed an order authorizing the execution of a wiretap on Nadbourne's phone. One month later, the Nadbourne warrant was extended until November 21, 1971. During this period, the name of Edward Morin, co-defendant with petitioner, was mentioned repeatedly in Nadbourne's phone conversations about the car theft ring. On November 30, 1971, Judge Shapiro authorized a wiretap of Morin's telephone. Two weeks later, on December 13th, the petitioner was overheard discussing the car thefts with Morin. The petitioner was indicted subsequently on numerous charges stemming from his involvement in the car theft ring. Prior to entering a guilty plea, the petitioner unsuccessfully moved to controvert the Morin warrant.

 The petitioner now raises the same challenge to the Morin warrant that he made in the state courts, specifically, that the affidavits supporting the application for the Morin warrant were deficient. The affidavits disclosed the contents of conversations intercepted pursuant to the Nadbourne wiretap, including conversations between Morin and Nadbourne about the car thefts. The supporting affidavit of an investigating officer also stated:

 
While your deponent has engaged in and will seek to continue to engage in undercover activities and to utilize other normal investigative techniques, it is your deponent's belief that normal investive [sic] procedures will not be sufficient to obtain all of the necessary evidence of the commission of the crimes being engaged in by the aforesaid parties and further, that without the aid of an Eavesdropping Warrant, your deponent would not be able to determine the identities of all the members of those directly involved in this illegal conspiracy. Furthermore, normal investigative procedures will place me in a position of increased physical danger, all of which will, in my opinion, make it unlikely that this investigation and any subsequent prosecution will succeed.

 (Brief for petitioner, Exhibit E).

 The petitioner claims that the Morin warrant was issued on an inadequate showing that normal investigative procedures had already failed or would fail to achieve the objectives of the police. Under 18 U.S.C. §§ 2518(1)(c) and (3)(c), petitioner points out, an application for an eavesdropping warrant must contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous," and that the judge granting the application must determine that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." *fn1" The petitioner contends that the District Attorney's application for the Morin warrant failed to demonstrate the requisite exigent circumstances and that the pretrial hearing testimony suggested that conventional investigation methods had met with some success.

 The petitioner raises significant questions concerning the validity of the Morin warrant. However, subsequent to the filing of the petition for habeas corpus, the Supreme Court decided Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), which held that

 
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

 96 S. Ct. at 3052 (footnote omitted).

 If Stone v. Powell comprehends a federal habeas claim of illegal wiretapping, then this court's habeas review is limited to the determination of whether the petitioner had a full and fair opportunity in the state courts to litigate his objections to the wiretapping. As far as we know, no court has decided this question in the brief period since the decision in Stone v. Powell. We turn first to an examination of the interplay between the fourth amendment's prohibition against illegal searches and seizures, the exclusionary rule, and the federal wiretapping statute, 18 U.S.C. § 2510 et seq.

 The Supreme Court first considered the status of wiretapping in Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). There defendants objected to introduction at trial of evidence of private telephone conversations obtained by tapping telephone lines between the defendants' residences and business offices. The Court held that the wiretapping of telephone wires and the introduction into evidence of intercepted conversations did not violate the fourth amendment prohibition against ...


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