The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
The defendants have been indicted for allegedly violating various federal laws concerning the trafficking of cocaine and marijuana. Following their arraignments, the defendants moved to suppress certain evidence derived from several wiretaps which had been authorized by New York State judges pursuant to New York law and which had been monitored by the New York State Police. The grounds asserted in these motions pertain to the issuance, extension, and execution of the wiretaps, and to various post-interception matters concerning the same. In addition to challenging the electronic surveillance, two defendants moved to suppress statements which they had made to law enforcement officers following their arrests. This Court duly presided over a suppression hearing with respect to both sets of motions, and also conducted an in camera proceeding in regard to a confidential informant.
Based upon the evidence adduced at the hearing, and upon the papers and arguments presented by the parties, this Court now concludes that the motions to suppress the wiretap evidence should be denied, and that the motions to suppress certain statements should be granted.
I. ELECTRONIC EAVESDROPPING
Before addressing the arguments regarding electronic surveillance, it is necessary to consider the choice of law problems presented here. The issue concerns the extent to which New York, or federal, law governs the admissibility in this federal prosecution of evidence derived from the State wiretaps.
The Second Circuit has explored this question on numerous occasions. See, e.g., United States v. Vazquez, 605 F.2d 1269, 1280 n.26 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979); United States v. Sotomayor, 592 F.2d 1219, 1224-26 (2d Cir. 1979); United States v. Fury, 554 F.2d 522, 525 n.3 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978); United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied sub nom., 429 U.S. 980, 1051, 1066, 97 S. Ct. 493, 796, 50 L. Ed. 2d 589, 783 (1976), 430 U.S. 982, 97 S. Ct. 1677, 52 L. Ed. 2d 376 (1977); United States v. Marion, 535 F.2d 697, 702 (2d Cir. 1976); United States v. Manfredi, 488 F.2d 588, 598 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. Ed. 2d 240 (1974). See also S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News, 2112, at 2187. What emerges from these cases is the requirement that, to be controlling, State wiretap guidelines must, at the very least, be as stringent as the requirements of federal law, which are contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, and in the Fourth Amendment to the Constitution of the United States. Thus, initially, the contested wiretaps must be measured against both federal and State law. Where, however, State standards are more stringent than federal law, a federal court is obliged to apply only those requirements of State law that are intended to protect a person's right of privacy. These requirements include conditions for the issuance and execution of eavesdropping warrants. A federal court does not apply those more stringent State laws that govern primarily evidentiary matters or the preservation of evidence after interception, such as the sealing of tapes. Finally, where State law governs, a federal court may look to federal law for guidance if State statutory and decisional law supply inadequate information on a particular issue.
With these principles in mind, the Court shall now turn to the objections raised by the defendants.
A. Issuance of the Initial Warrants
The defendants have made a number of arguments directed at whether two eavesdropping warrants were properly issued. In regard to these claims, the following facts have been presented to this Court.
On April 23, 1980, the District Attorney of Schenectady County applied to the New York Supreme Court, Schenectady County, for an eavesdropping warrant to investigate violations by Michael Lilla, and others, of New York Penal Law §§ 105.10 (Conspiracy, Second Degree), 221.55 (Criminal Sale of Marijuana, First Degree). Accompanying his application was an affidavit by New York State Trooper Kenneth T. Cook, dated April 23, 1980. Trooper Cook, who was assigned to a narcotics unit at Troop G, stated in his affidavit that he had initiated an investigation into narcotics trafficking by Michael Lilla, who worked at Unified Auto and Equipment, Inc., or Better Body Works, in Schenectady, New York, and who resided in Rexford, New York. In April, 1980, Cook stated, he received information from a confidential informant to the effect that Lilla was selling illegal drugs, including cocaine and marijuana, and that Lilla used the telephones at his place of employment and at his residence to arrange with other persons the sale of these drugs. Additionally, the informant told Cook that he could make arrangements with Lilla over the telephone to purchase drugs. Thereafter, on April 10, 1980, the confidential informant came to Cook's office to telephone Lilla and buy illicit drugs. With the permission of the informant, Cook, using an extension telephone, dialed the telephone listing for Unified Auto, and subsequently overheard a conversation in code between the informant and a person whom the informant identified as Michael Lilla. During the course of the conversation, a person who responded to the name "Mike" said that although "Flake" was unavailable at that time, someone was going to bring some up in a week or two, and that he could meanwhile sell the informant "Lumbo." In this context, "Mike" also mentioned that "we" had "all kinds of people" who owed "us" money for "Flake." "Mike" then asked the informant to come to his place of business that day, for the apparent purpose of purchasing "Lumbo." "Mike" stated further that if he was not at work when the informant came to make the purchase, the informant could call him at home. The conversation, a tape of which this Court heard in camera, then ended. Interpreting the code used by the parties, Cook, relying upon his experience and training as a narcotics investigator, stated in his affidavit that "Flake" signified cocaine and that "Lumbo" denoted marijuana.
Following this conversation, Cook averred in his affidavit, the informant and Cook, in an undercover capacity, proceeded later that day to Unified Auto, where Cook purchased a pound of marijuana from a person who identified himself as Mike Lilla, and discussed with him the possibility of purchasing cocaine. Lilla informed Cook that cocaine would be available in a week or two and that his brother was in Florida arranging for the acquisition of "coke" and "grass." He also advised Cook to telephone him at Unified Auto or at his home to discuss the purchase of additional drugs.
Relying upon these contacts with Michael Lilla, Cook set forth in the affidavit his belief that his investigation of illicit drug trafficking apparently involved persons other than Michael Lilla, and that wiretapping was the "(only) investigative method ... to determine the identity of these other persons" and to gather "evidence of their guilt." Cook went on to state, based upon his experience, that it is common for persons engaged in narcotics trafficking to conduct their business on the telephone at irregular hours during the day and night and through the use of code. Furthermore, Cook expressed his opinion that although probable cause existed for the issuance of an arrest or search warrant, it would be better to monitor conversations and determine the identity of other participants in the conspiracy.
Based upon the District Attorney's application and Cook's supporting affidavit, Supreme Court Justice Dominick J. Viscardi issued an eavesdropping warrant for the seizure of conversations of Michael Lilla and other involved persons on a telephone number listed to Unified Auto and on a telephone number listed to Adrian Lilla, Michael Lilla's father, with whom Michael Lilla resided in Rexford, New York. According to the warrant, the Justice found reasonable cause to believe that certain conversations either would constitute evidence of the crimes of possession and sale of cocaine, possession and sale of marijuana, and conspiracy and attempt to do the same, in violation of N.Y.Penal Law, Articles 220, 221, 110 and 105, or would aid in the apprehension of persons engaged in such criminal acts. Additionally, the Justice found that normal investigative procedures had been tried, but had failed to obtain evidence of these crimes. For these reasons, the warrant indicates, the Justice authorized the eavesdropping of all conversations pertaining to these crimes and concerning the buying, selling, delivery, transfer, and possession of such unlawful substances, and details relating to these crimes, including the conversations of other persons whose identities were then unknown, but whose conversations would be evidence, or lead to evidence, of their participation in the crimes. Also, in the warrant the Justice admonished law enforcement officers to minimize the interception of conversations not subject to seizure, and furthermore, to restrict seizures to any established pattern of operations. Finally, the Justice directed that all eavesdropping would cease on the 30th day following the date of the issuance of the warrant, viz., on May 24, 1980.
Apart from this warrant, law enforcement officers also secured a second eavesdropping warrant.
On May 8, 1980, the District Attorney of Saratoga County applied to the New York State County Court of Saratoga County for an eavesdropping warrant to investigate a person identified as "Doug" and other individuals who were suspected of violating N.Y.Penal Law Articles 220, 105 and 110 concerning the possession and sale of controlled substances and the conspiracy and attempt to do the same. The warrant application affected the residence telephone of Robert Lilla, who lived in Burnt Hills, New York. Accompanying the application was an affidavit by New York State Police Narcotics Investigator Edmund W. Girtler, Jr., dated May 8, 1980. In his affidavit Girtler, who was assigned to Troop G, averred that he had listened to drug-related conversations, in code, seized from a telephone listed to Unified Auto. For example, Girtler stated, on April 28, 1980, a person identified as Robert Lilla received a telephone call from "Everett"; "pharmaceutical" was mentioned in the conversation. Also on April 28, Robert Lilla received a call from "Joe," who asked for "Doug"; Lilla told "Joe" that "Doug" was sleeping, and that "Joe" should call "Doug" at Robert's residence. Subsequent to this call from "Joe", Robert Lilla, or "Bob", was telephoned by "Doug"; the parties mentioned that "Charlie" would be coming over that night "to the house" to get "some stuff," and discussed the availability of "some green". Next, on May 3, 1980, Robert Lilla received another call from "Doug"; Robert told "Doug" that he intended to talk to "Charlie" and ascertain whether "Charlie" was interested in buying the "car", "snow tires", and "stuff". That same day, Robert was contacted by "Frank"; Robert told "Frank" that he had someone who wanted to buy a "car", and that he had only one "lot" left, and asked "Frank" if his "guy" wanted a "first crack at it." Later on May 3, Robert telephoned his residence, and talked to "Doug"; Robert told "Doug" that someone was interested in the "car". In this same conversation were the phrases "convertible", "the whole roof", "the hard top and the soft top", "this other car dealer", "breakdown", "adding the additives to it", "stereo", "radio", and "FM with complete control."
Relying upon his experience as a narcotics investigator, Girtler stated in affidavit that, in drug vernacular, "pharmaceutical" means cocaine. Additionally, the investigator averred, based upon conversations seized over the telephone held by Unified Auto, "car" and "snow tires" pertained to cocaine; "convertible" and "soft top" signified fine cocaine powder; "hard top" denoted rock or crystalized forms of cocaine; and "additives" referred to agents used to prepare or cut cocaine.
In his affidavit, Girtler further recited that he and other investigators had attempted to conduct spot checks of Robert Lilla's residence, but without success; a fixed surveillance of the location, a densely populated area, according to Girtler, could be easily detected, and could jeopardize the investigation. Moreover, Girtler stated that he and other investigators had unsuccessfully attempted to gather information regarding narcotics trafficking at Lilla's residence by physical surveillance and by contacting informants. The investigator went on to express his opinion that other unknown co-conspirators were involved in drug trafficking, and that wiretapping was the only investigative method to determine the identity of such persons and to acquire evidence of their guilt. Finally, Girtler indicated that it is a common practice of persons dealing in unlawful drugs to conduct business on the telephone only with persons known to them and at irregular hours of the day and nights, and that although probable cause existed for the issuance of a search warrant for the residence of Robert Lilla, such action would destroy any opportunity of acquiring evidence of other criminal activity.
Based upon the District Attorney's application, and upon the supporting affidavit of Investigator Girtler, Saratoga County Court Judge Loren N. Brown issued an eavesdropping warrant on May 8, 1980, authorizing the interception of conversations of "Doug" and other persons on a telephone number listed to Robert Lilla, Burnt Hills, New York. In the warrant, the Judge expressed his conclusion that there was reasonable cause to believe that "Doug" and other persons were committing crimes of criminal possession and sale of controlled substances, and of conspiracy and attempt to do the same, in violation of N.Y.Penal Law Articles 220, 110, and 105. Finding further that interceptions of conversations of "Doug" and other persons would be evidence of such crimes, or would aid in the apprehension of persons committing these unlawful acts, and that normal investigative procedures had been exhausted, Judge Brown authorized the interception of all conversations of persons known and unknown which pertained to these crimes and concerned the buying, selling, delivery, transfer, and possession of controlled substances. In issuing the warrant, however, the Judge directed law enforcement personnel to minimize the interceptions of conversations not subject to seizure, and ordered that eavesdropping could be effected only during the thirty day period between May 9, 1980, and June 8, 1980.
In their motions to suppress, the defendants contest the two eavesdropping warrants on the following grounds: (1) that the District Attorney of Schenectady County was the improper applicant for the April, 1980, warrant; (2) that the warrants rested upon insufficient probable cause to believe that particular designated offenses had been, were being, or would be committed; (3) that the April, 1980, warrant was grounded upon insufficient probable cause to believe that conversations pertaining to a particular designated offense would take place over the affected telephones; (4) that the April, 1980, warrant authorized only the seizure of conversations of Michael Lilla; (5) that the April, 1980, warrant issued without any showing that normal alternative investigative channels had been explored; (6) that the April, 1980 warrant failed to specify with particularity the requirements concerning duration and termination; and (7) that the May, 1980, warrant rested upon illegal evidence seized pursuant to the April, 1980, warrant.
With respect to the first issue, the defendants claim that the District Attorney of Schenectady County was authorized only to apply for wiretaps on telephones within his county, and that, accordingly, the District Attorney was an improper applicant for a tap on the telephone of Adrian Lilla, who resides in Saratoga County.
There is no question that suppression of some evidence would be required under Title III if the District Attorney were an unauthorized applicant. As the Supreme Court has explained, the detailed federal procedures regarding applications are "important preconditions to obtaining any intercept authority at all," and evidence a congressional intent that wiretapping be utilized with restraint and only where warranted. United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 1826, 40 L. Ed. 2d 341 (1974). "Congress ... made preliminary approval of submissions of wiretap applications a central safeguard in preventing abuse of this means of investigative surveillance..." United States v. Chavez, 416 U.S. 562, 571, 94 S. Ct. 1849, 1854, 40 L. Ed. 2d 380 (1974) (discussing Giordano). Even though Giordano involved the suppression of evidence because of the unauthorized application of a federal official, its rationale would appear to govern unauthorized applications by state officials. Cf: United States v. Tortorello, 480 F.2d 764, 777-78 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973).
Examining the language of the pertinent statutes to determine whether the District Attorney was a proper applicant, Title III requires resort to state law in the first instance. This Act provides that "the principal prosecuting attorney of any political subdivision (of any State), if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for (an eavesdropping warrant)" may apply for authorization to intercept wire communications. 18 U.S.C. § 2516(2) (emphasis supplied). Looking to New York law, New York Criminal Procedure Law (CPL) § 700.10(1) states that an eavesdropping warrant may issue only upon the "application of an applicant who is authorized by law to investigate, prosecute or participate in the prosecution of the particular offense which is the subject of the application." See CPL § 700.15(1). "Applicant" has been defined as a "district attorney." CPL § 700.05(5).
In their arguments, several defendants rely heavily upon this statement from the legislative history behind 18 U.S.C. § 2516(2): "Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county." S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News, at 2187. Certainly the language of this statement lends support to the defendants' position. However, this language must be construed in light of the expressed congressional intent that state law govern the question of whom the proper prosecuting officer would be. See 18 U.S.C. § 2516(2); S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News, at 2187; United States v. Giordano, 416 U.S. at 522-23, 94 S. Ct. at 1829-30. So construed, it is clear that this statement merely reflects an opinion as to what the requirements of state law might be; it does not purport to dictate to states what the geographical authority of their enforcement officers must be.
In this regard, the New York Court of Appeals has interpreted CPL § 700.10(1) as authorizing district attorneys to apply for eavesdropping warrants on telephones located in counties outside their ordinary spheres of influence, so long as there is a "sufficient nexus" or sufficient "contacts" between the conduct complained of in the application and the county represented by the office of the district attorney. People v. DiPasquale, 47 N.Y.2d 764, 765-66, 391 N.E.2d 710, 711, 417 N.Y.S.2d 678, 678-79 (1979) (memorandum) (upholding application of Bronx County District Attorney to tap phone located in New York County). See People v. Paz, 109 Misc.2d 832, 441 N.Y.S.2d 183, 197 (Sup.Ct., N.Y.Co.1981). Under this construction of CPL § 700.10(1), the application and supporting affidavit submitted by the District Attorney of Schenectady County establish that he was indeed a proper applicant to seek authorization to intercept conversations on the telephone of Adrian Lilla. These papers charge that Michael Lilla was engaged in drug-related activities at his place of business in Schenectady County, and that he was using his residential telephone in Saratoga County in furtherance of these activities. These alleged actions plainly have a "sufficient nexus" with Schenectady County, so as to make the District Attorney of that county a lawful applicant for an eavesdropping warrant affecting the telephone number listed to Adrian Lilla.
Turning to the various challenges attacking the probable cause allegedly underlying the April, 1980, warrant, no choice of law problem is presented here. Under the Fourth Amendment, Title III, 18 U.S.C. § 2518(3), and under the CPL, CPL § 700.15(2), (3), & (5), the test is as follows:
Probable cause ... exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed....
Berger v. United States, 388 U.S. 41, 55, 87 S. Ct. 1873, 1881, 18 L. Ed. 2d 1040 (1967). See United States v. Fury, 554 F.2d at 530; People v. Kaiser, 21 N.Y.2d 86, 103, 233 N.E.2d 818, 828, 286 N.Y.S.2d 801, 815 (1967), aff'd 394 U.S. 280, 89 S. Ct. 1044, 22 L. Ed. 2d 274 (1969). In applying this test, courts have cautioned that papers in support of eavesdropping warrants must be tested in a common sense manner. See United States v. Cale, 508 F. Supp. 1038, 1040 (S.D.N.Y.1981); People v. Fusco, 75 Misc.2d 981, 989, 348 N.Y.S.2d 858, 869 (Nassau Co. Ct. 1973). Supporting papers, however, must contain "a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief" that eavesdropping should be authorized. 18 U.S.C. § 2518(1)(b); CPL § 700.20(2)(b). Conclusory statements, without more, are altogether inadequate. See United States v. De Palma, 461 F. Supp. 800, 807 (S.D.N.Y.1978). In this regard, apart from direct evidence reported in the papers, circumstantial evidence may be sufficient in certain cases to establish probable cause. See United States v. Cale, 508 F. Supp. at 1040. Also, probable cause necessarily depends upon the facts of each case. See United States v. Martino, 664 F.2d 860, 866 (2d Cir. 1981). Finally, perhaps because of the importance of facts in determining the existence of probable cause, an issuing judge's determination of probable cause is entitled to deference. See id. at 867; United States v. Vasquez, 605 F.2d at 1281; People v. Romney, 77 A.D.2d 482, 484, 433 N.Y.S.2d 941, 943 (4th Dep't 1980).
With respect to the question of whether there was probable cause to believe that particular designated offenses had been, were being, or would be committed, see 18 U.S.C. § 2518(1)(b)(i) & (3)(a), CPL § 700.20(2)(b)(i), the defendants correctly note that the criminal sale of marijuana in the first degree, which the District Attorney of Schenectady County recited in his application for the April, 1980, warrant, is not a "designated offense" under CPL § 700.05(8). The Government, however, correctly observes that both warrants charge violations of the New York Penal Law regarding the possession and sale of a controlled substance, namely, cocaine, and the attempt and conspiracy to do the same, all "designated offenses" under CPL § 700.05(8)(a) & (c).
Examining in this light the allegations set forth in the papers supporting the April, 1980, warrant, this Court concludes that Trooper Cook's conversation with Michael Lilla in regard to the future acquisition of "coke" from Lilla sufficiently established probable cause to believe, at a minimum, that Lilla would be committing a violation of N.Y.Penal Law § 220.31, which prohibits the sale of any quantity of cocaine and which is a "designated offense" under CPL § 700.05(8)(c). Additionally, the conversation between Lilla and the informant, which revealed Lilla's involvement with other persons in transporting narcotics into New York, furnished probable cause to believe that Michael Lilla was conspiring with others to violate N.Y.Penal Law § 220.31. Such a conspiracy would also be a "designated offense." N.Y. CPL § 700.05(8) (a). As to the affidavit of Investigator Girtler in support of the May, 1980, warrant, various intercepted conversations, in code, had linked Robert Lilla, "Doug," "Everett," "Frank," and "Charlie," to dealings in cocaine, see United States v. Aloi, 449 F. Supp. 698, 732-33 (E.D.N.Y.1977), and thus, in the judgment of this Court, supplied at a minimum probable cause to believe that these persons would also be committing a violation of N.Y.Penal Law § 220.31, a designated offense, and would be conspiring to commit the same, CPL § 700.05(8) (a). Because, under New York law, only one designated offense need be supported by probable cause, at least where there is no evidence of bad faith, see People v. Bove, 93 Misc.2d 430, 435, 402 N.Y.S.2d 930, 934 (Sup.Ct., Suffolk Co. 1978), this Court finds that probable cause in regard to designated offenses amply justified the issuance of both eavesdropping warrants.
With respect to the question of whether there was probable cause to believe that conversations related to designated offenses would take place over the telephones targeted in the April, 1980 warrant, see 18 U.S.C. § 2518(3)(b), CPL § 700.15(3), Trooper Cook stated in his affidavit that he had been advised by Michael Lilla to telephone Lilla at either his home or place of employment to discuss the future sale and purchase of cocaine. Given this averment, this Court must find that probable cause existed for the authorization of the warrant.
In regard to the argument that the April, 1980 warrant authorized only the seizure of conversations by Michael Lilla, several defendants claim that the failure of the state law enforcement officers to obtain an amendment of the warrant to include the interception of conversations of persons other than Michael Lilla mandates suppression. This argument is plainly without merit. The eavesdropping warrant explicitly authorized the seizure of pertinent conversations by persons whose identities were unknown at that time. Additionally, both federal and state law permit the use of communications against persons not named in an eavesdropping warrant, even without amendment of the warrant. See United States v. Tortorello, 480 F.2d at 775; People v. Gnozzo, 31 N.Y.2d 134, 142, 286 N.E.2d 706, 709, 335 N.Y.S.2d 257, 262 (1972), cert. denied sub nom. Zorn v. New York, 410 U.S. 943, 93 S. Ct. 1373, 35 L. Ed. 2d 610 (1973). See also CPL § 700.65(4); United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977); United States v. Kahn, 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974); United States v. Scafidi, 564 F.2d 633, 642 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S. Ct. 2231, 56 L. Ed. 2d 401 (1978); United States v. Principie, 531 F.2d 1132, 1136-37 (2d Cir. 1976), cert. denied, 430 U.S. 905, 97 S. Ct. 1173, 51 L. Ed. 2d 581 (1977); United States v. Cale, 508 F. Supp. at 1042-43.
Next the defendants contend that the April, 1980, warrant must fall because the law enforcement officers made little or no attempt to exploit alternative investigative methods, and because the supporting affidavit stated purely conclusory allegations as to the proven, or probable, futility of such methods in this particular investigation. In support of these contentions, the defendants observe that normal investigative procedures had already successfully uncovered important information regarding the source of the narcotics; that the defendant Michael Lilla certainly was not secretive, evasive, suspicious, cautious, uncooperative, or otherwise sensitive to ordinary investigative methods, as evidenced by the ease with which Cook had arranged, and completed a drug deal; and that there was no reason why normal physical surveillance of Unified Auto could not have proven useful, in view of the location of this establishment on a busy street in a commercial area.
Both sides recognize that federal and state statutory law authorize electronic eavesdropping only when "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c); CPL § 700.15(4). Recently, the New York State Court of Appeals has interpreted the Fourth Amendment to the Constitution of the United States as imposing upon state law enforcement officers a responsibility to use electronic surveillance "only ... where normal investigative procedures had been tried and failed or are demonstrably unlikely to succeed." People v. Teicher, 52 N.Y.2d 638, 656, 422 N.E.2d 506, 515, 439 N.Y.S.2d 846, 855 (1980) (video electronic surveillance).
New York statutory law, which governs this issue, cf: United States v. Fury, 554 F.2d at 530, also requires that an application for an eavesdropping warrant contain a full and complete "statement of facts" demonstrating the actual, or likely, success of normal investigative procedures. CPL § 700.20(2)(d). Title III has a similar requirement. Compare 18 U.S.C. § 2518(1)(c) (a "statement") with 18 U.S.C. § 2518(3)(d) ("probable cause"). As interpreted by courts, the purpose of such rules governing the content of eavesdropping applications is to ensure that issuing judges are apprised of the nature and purpose of the investigation and of the difficulties involved in employing normal law enforcement techniques, in order that wiretapping is not routinely resorted to in criminal investigations. See, e.g., People v. Penna, 53 A.D.2d 941, 942, 385 N.Y.S.2d 400, 402 (3d Dep't 1976); People v. Brenes, 53 A.D.2d 78, 80, 385 N.Y.S.2d 530, 531-32 (1st Dep't 1976) (opinion of two justices), aff'd on other grounds, 42 N.Y.2d 41, 364 N.E.2d 1322, 396 N.Y.S.2d 629 (1977); People v. Holder, 69 Misc.2d 863, 868, 331 N.Y.S.2d 557, 564 (Sup.Ct., Nassau Co. 1972). See also United States v. Giordano, 416 U.S. at 515, 94 S. Ct. at 1826; United States v. Kahn, 415 U.S. at 153 & n.12, 94 S. Ct. at 983 & n.12; United States v. Martino, 664 F.2d at 868; United States v. Vasquez, 605 F.2d at 1282; United States v. Scafidi, 564 F.2d at 641; United States v. Fury, 554 F.2d at 530; United States v. Hinton, 543 F.2d at 1011. The rules are not, however, intended to prohibit the authorization of electronic surveillance until all possible avenues of investigation have been explored. See People v. Versace, 73 A.D.2d 304, 308, 426 N.Y.S.2d 61, 64 (2d Dep't 1980). See also United States v. Martino, 664 F.2d 860, 868; United States v. Fury, 554 F.2d at 530 & n.7; United States v. Hinton, 543 F.2d at 1011. Moreover, in applying these rules, courts are to use a practical and common sense approach in their assessments of applications for eavesdropping warrants. See People v. Versace, 73 A.D.2d at 308, 426 N.Y.S.2d at 64. See also S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News, at 2190; United States v. Martino, 664 F.2d 860 at 868.
Considering the affidavit of Trooper Cook in light of these guidelines, and according appropriate deference to the determination of the issuing judge, this Court concludes that marginally sufficient facts were presented to justify a reasonable belief that normal investigative measures would be unavailing, in terms of garnering sufficient evidence as to the scope of the unlawful narcotics conspiracy. As Cook stated in his affidavit, Michael Lilla had indicated that his brother and, inferentially, at least one other person were in Florida arranging for the transportation of narcotics into the State of New York and particularly into the Schenectady area. Moreover, based upon the conversation which Cook reported he had overheard between Michael Lilla and the informant, common sense would suggest that a number of people were relying upon Lilla, and, by inference, upon at least one other person, as a source of narcotics. Given the investigative need to ascertain the identities and geographical locations of persons in business with Lilla, and given the probable cause belief that Lilla would use telephones in furtherance of this business, an authorizing judge "could reasonably conclude" that other investigative efforts "would likely have been inadequate", People v. Penna, 53 A.D.2d at 942, 385 N.Y.S.2d at 402, "could (not) have been successful", People v. Brenes, 53 A.D.2d at 80, 385 N.Y.S.2d at 532, or "were unlikely to reveal" the sought-after information about Michael Lilla's contacts, People v. Versace, 73 A.D.2d at 308, 426 N.Y.S.2d at 64. See also United States v. Martino, 664 F.2d 860 at 868; United States v. Todisco, 667 F.2d 255, 259 (2d Cir. 1981); United States v. Vasquez, 605 F.2d at 1282; United States v. Hinton, 543 F.2d at 1011; United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976); United States v. Loften, 518 F. Supp. 839, 844 (S.D.N.Y.1981). Electronic surveillance here, as asserted by Trooper Cook, would not have been "merely a useful additional tool," People v. Brenes, 53 A.D.2d at 80, 385 N.Y.S.2d at 532.
With respect to the challenges to the duration and termination directives of the April, 1980, warrant, the defendants contend that the Cook affidavit failed to set forth sufficient facts calling for the continuation of eavesdropping after the seizure of the first sought-after conversation. In this regard, both federal and state law specify that an eavesdropping warrant must define the duration of the authorized interception," including a statement as to whether or not the intercepting shall automatically terminate when the described communication has been first overheard." 18 U.S.C. § 2518(4)(e); CPL § 700.30(6). See CPL § 700.10(2). These laws also require that applications, which request authorization to continue surveillance following the first interception of the described conversation, must contain specific "facts establishing probable cause to believe that additional communications of the same type will occur thereafter." 18 U.S.C. § 2518(1)(d); CPL § 700.20(2) (e). In applying these requirements, courts have recognized that the nature of the crime involved and the type of conversations sought are factors to consider in determining the longevity of the wiretap authorization. See People v. Palozzi, 44 A.D.2d 224, 227, 353 N.Y.S.2d 987, 990 (4th Dep't 1974); People v. Castania, 73 Misc.2d 166, 168, 340 N.Y.S.2d 829, 832 (Monroe Co. Ct. 1973). See also United States v. Clemente, 482 F. Supp. 102, 107 (S.D.N.Y.1979), aff'd without opinion, 633 F.2d 207 (2d Cir. 1980).
Under these standards, the affidavit of Trooper Cook clearly passes muster. Trooper Cook was investigating a conspiracy to traffic controlled substances that was being furthered by use of the telephones. Because "it is extremely unlikely that one telephone conversation would ... establish this conspiracy," People v. Fiorillo, 63 Misc.2d 480, 481, 311 N.Y.S.2d 574, 576 (Montgomery Co. Ct. 1970), this Court is not prepared to say that the state judge lacked probable cause to believe that additional communications of the same type would occur after the first sought-after interception.
For these reasons, it appears that the April, 1980, warrant was issued lawfully. Accordingly, the May, 1980, warrant is not subject to challenge as an illegal "fruit."
B. Extension of the Eavesdropping Warrant
Several defendants challenge the validity of the extensions of the April, 1980, and May, 1980, warrants. The following facts are pertinent to this discussion.
On May 23, 1980, the District Attorney of Schenectady County applied to Justice J. Raymond Amyot of the New York State Supreme Court, Schenectady County, for a thirty-day extension of the April, 1980, warrant for the period ending June 23, 1980. In the application and in a supporting affidavit by Trooper Cook, a number of conversations were set forth which had been intercepted pursuant to the initial warrants. The following are some of these conversations:
(O)n May 12, 1980, conversations were seized wherein MARK LILLA received a call on (the telephone listed to Adrian Lilla) from a male who identified himself as "PETE." PETE asks MARK what's up? MARK replies, "DOUG" is supposed to call me later tonight. PETE replies, I could use a couple of OZ's. MARK replies if DOUG calls me tonight, I'll be able to call you from the body shop tomorrow and let you know. PETE replies, OK.
(O)n May, 16, 1980, conversations were seized wherein MARK LILLA received a call on (the telephone listed to Unified Auto) from a male who identified himself as "PETE." PETE asked MARK, did you hear anything yet? MARK replied, no, he called me, as soon as he finds something good, he's going to bring it up. PETE replied, then when he does call, it will be two or three days after that, right? MARK replied, ya. PETE said, I just wanted to get an idea so I could tell some people, you know.
(O)n May 19, 1980, conversations were seized wherein a male who identified himself as "DOUG" called on (the telephone listed to Unified Auto) and talked to MARK LILLA. DOUG said, we have got to get together and talk. MARK replied, yeah when? DOUG replies, I'll call your house (Adrian Lilla's telephone) tonight. MARK replied, alright, because everybody is pretty ready around here. DOUG replied, ya I know, there's a couple of things in the wind now.
(O)n May 20, 1980, conversations were seized wherein ROBERT LILLA received a call on (the telephone listed to Unified Auto) from a male who identified himself as "CHRIS." CHRIS asked BOB, you know, 714, you know anybody that wants? BOB replies, no, uh I know what your talking about, I have customers here, when you get a chance stop down and we'll talk.
(O)n May 20, 1980, conversations were seized wherein ROBERT LILLA received a call on (the telephone listed to Unified Auto) from a male who identified himself as "RICK". RICK asked, I was wondering if you got anymore of those "wheels". BOB replied, no, they're not in yet, I called and they said maybe the end of the week. RICK replied, OK, I could probably use quite a few of them. BOB replied, I'll let you know.
(On) May 20, 1980, conversations were seized wherein MARK LILLA received a call on (the telephone listed to Adrian Lilla) from an unknown male. The unknown male asked, is there anything around? ...