From convictions based upon guilty pleas entered before the United States District Court for the Northern District of New York, Roger J. Miner, Judge, defendants appeal the denial of a motion to suppress evidence arrived at through a wiretap allegedly obtained illegally, in violation of 18 U.S.C. § 2518(1)(c) and N.Y. Crim. Proc. Law §§ 700.15(4), 700.20(2)(d).
Feinberg, Chief Judge, Oakes, Circuit Judge, and Bonsal, District Judge.*fn*
This appeal presents the issue whether the affidavit of a New York state trooper applying for an eavesdropping warrant provided sufficient information that normal investigative procedures reasonably appeared unlikely to succeed if tried. We hold that the affidavit was insufficient under both N.Y. Crim. Proc. Law §§ 700.15(4) and 700.20(2), (3), as well as 18 U.S.C. § 2518(1) (c), and, with one exception, reverse the appellants' convictions, based on guilty pleas with reservations of rights for certain drug offenses,*fn1 by the United States District Court for the Northern District of New York, Roger J. Miner, Judge.
The affidavit in question in this case was sworn out by Kenneth T. Cook, a state trooper whose assignment at the time involved investigation of persons engaged in the sale and criminal possession of marijuana and other controlled substances in the Loudonville, New York area. See N.Y. Penal Law §§ 105, 110, 220, 221 (McKinney 1975, 1980, and Supp. 1982-83). The affidavit revealed that in April, 1980, Cook was told by an informant that Michael Lilla was selling cocaine and marijuana; the informant indicated that arrangements to purchase drugs could be made by phone. On April 10, 1980, Trooper Cook listened in on an extension while the informant spoke with Lilla at Unified Auto and Equipment Inc., Lilla's place of work. In response to the informant's inquiry as to the "flake situation," Lilla said that "somebody's going to bring some up in a week or two." When asked how the "lumbo" was, Lilla replied, "It's not that great," but further conversation was to the effect that Lilla would sell "a whole one" for $475.
According to the affidavit, the trooper then accompanied the informant to the Schenectady garage occupied by Unified Auto and Equipment, was introduced to Michael Lilla, and paid him $475 for a pound of "weed" or marijuana. The trooper then discussed purchasing cocaine, and Lilla said that his brother was in Florida making arrangements to bring "coke" and "grass" to Schenectady that would be available in a week or two. Lilla then gave the trooper both his home and work telephone numbers. Analysis conducted by the State Police laboratory confirmed that the pound of "weed" was marijuana. The trooper's affidavit pointed out that he had attended a two-week seminar on narcotics sponsored by the Federal Drug Enforcement Administration and some drug seminars at the New York State Police Academy and that he had worked as an undercover officer and in his experience the word "flake" was used to refer to cocaine and "lumbo" and "weed" to marijuana.
Rather surprisingly, the affidavit then goes on to state:
I am able to conclude that this investigation involving the illicit trafficking in the sale and distribution of controlled substances involves other unknown co-conspirators and that no other investigative method exists to determine the identity of these other persons involved and of obtaining legally sufficient evidence of their guilt except by wiretapping. I can further state that it is the common practice of persons engaged in narcotics trafficking to conduct their business on the telephone only with persons known to them and that they purposely use the telephone at irregular hours, day and night.
The final paragraph of the affidavit stated:
Although probable cause exists from the facts set forth above to support the issuance of Arrest and/or Search Warrants, such action at this time would preclude the obtaining of the seizure of the operation and other persons involved, a factor in the grade of crime being committed. Since from my police experience and training in such investigations, I am able to conclude that an operation such as set forth above, must involve others and that an arrest and or search at this time would not stop the whole conspiracy operation, but only move it to continue elsewhere, requiring new leads and information, which might not be so readily available and no other investigative procedures exist to determine the identity of other persons participating and conspiring and of obtaining legally sufficient evidence of the guilt, except by wiretapping.
On the basis of this affidavit, Judge Dominick J. Viscardi, Supreme Court, Schenectady County, issued an eavesdropping warrant authorizing the wiretapping of Lilla's home and work phone numbers. An extension of this original warrant was obtained, as well as another warrant dated May 8, 1980, in Saratoga County by a trooper assigned to the same unit as Trooper Cook, on the basis of telephone conversations intercepted under the April 23, 1980, warrant issued by Judge Viscardi.