of a small amount of narcotics by an informant who dealt directly with the defendant and was accompanied by an undercover officer at the time of the purchase. On the facts presented, the court concluded that the government had failed to demonstrate that normal investigative techniques were unlikely to be successful.
The facts presented here are readily distinguishable from those in Lilla. There is no indication in this case that officers working in undercover capacities have engaged in any criminal transactions or conversations with the Orenas or their associates. Similarly, there is no basis to believe that the government had available informants willing to testify at trial and privy to ongoing criminal conversations between the Orenas, Audino and Cascio at the time of the Fanning affidavit. The facts presented here are much closer to those involved in United States v. Gotti, 771 F. Supp. at 546, in which the court upheld a finding of impracticality pursuant to Section 2518(3)(c) despite the government's access to numerous informants. See also United States v. Crozzoli, 698 F. Supp. 430, 434 (E.D.N.Y. 1988).
In sum, the electronic surveillance which the government sought to undertake in this case was intended to develop evidence about ongoing criminality by members of one faction in a violent, intense war for control of the Colombo crime family. As indicated by the reports of physical surveillance described in the Fanning affidavit, and confirmed by several of the intercepted conversations recounted in the second Fanning affidavit, the Orenas, Audino and Cascio were particularly conscious of being followed by law enforcement officers and took steps to avoid surveillance. Particularly when viewed in this context, the information presented to Judge Nickerson, none of which has been called into serious question, provided a substantial basis to conclude that normal investigative methods were not likely to be successful and that electronic surveillance was appropriate. Accordingly, defendants' motion to suppress pursuant to Section 2518(3)(c), or in the alternative for a hearing on the availability of alternative investigative means, should be denied.
D. Immediacy of Sealing
Defendants' final challenge to the introduction of the intercepted communications is brought pursuant to Section 2518(8). This section requires immediate sealing of recordings of intercepted conversations upon the expiration of the Order authorizing electronic surveillance, or extensions of it, unless the government has presented a satisfactory explanation for the delay. A satisfactory explanation is required, however, only by a delay in sealing that goes beyond two days. See, e.g., United States v. Massino, 784 F.2d 153, 156 (2d Cir. 1986); United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979). Here, it is undisputed that the recordings made pursuant to the original Order of authorization were sealed two days after that Order expired. Moreover, the original Order of authorization in this case was extended, and the tapes of all recorded interceptions were sealed well before the expiration of the extension Order.
Accordingly, no explanation is required in this case, and defendants' motion pursuant to Section 2518(8) should be denied.
III. BEVACQUA'S MOTION TO SUPPRESS FRUITS OF ARREST
Defendant Paul Bevacqua was arrested on March 27, 1992 while driving in Brooklyn, New York. In connection with the arrest, law enforcement officers seized a gun, a holster and certain documents which were in Bevacqua's possession at the time. Defendant Bevacqua argues that the government lacked probable cause to stop his car and place him under arrest, and that the items seized from him pursuant to that arrest should therefore be suppressed.
A suppression hearing was held before me on March 16, 1995. At that hearing, the government presented the testimony of Federal Bureau of Investigation Special Agents Tom Kwiatkowski and Joseph Phalen and of New York City Police Detective Christine McNulty. These law enforcement officers testified about their participation in the surveillance and arrest of Paul Bevacqua on March 27, 1992.
The evidence presented at the hearing established that there was probable cause to arrest Bevacqua for driving with a suspended license in violation of New York Vehicle and Traffic Law § 509. Agent Kwiatkowski testified that, on March 19, 1992, he obtained a report from the New York State Department of Motor Vehicles which indicated that Paul Bevacqua's driver's license had been suspended. Hg.Tr. at 11-12.
Detective McNulty, the arresting officer, testified that she received instructions from her supervisor to stop Bevacqua's car and place him under arrest. According to Detective McNulty, she was made aware prior to the arrest that Bevacqua was driving with a suspended license. Hg.Tr. at 75. Agent Phalen testified that he was present in an automobile with supervisors from the Federal Bureau of Investigation and the New York City Police Department when the decision to arrest Bevacqua was made. Agent Phalen stated that these supervisors determined that there was sufficient probable cause to arrest Bevacqua for driving with a suspended license. Hg.Tr. at 122.
Bevacqua, relying upon a report written by a Police Department supervisor which makes no mention of the traffic violation, contends that the arresting officers had no knowledge of his traffic violation at the time of his arrest. The overwhelming evidence presented at the hearing, however, was to the contrary, and I find that evidence to be credible.
While it is apparent that the joint FBI-NYPD surveillance and arrest of Paul Bevacqua was not undertaken for the purpose of removing an unlicensed driver from the streets of New York, the Second Circuit in United States v. Scopo, 19 F.3d 777 (2d Cir. 1994), rejected the argument that an otherwise valid arrest for a traffic violation was rendered illegal because the arrest was a pretext for furthering the investigation of other crimes. The Court specifically held that
where the arresting officer had probable cause to believe that a traffic violation ... was occurring in the officer's presence, and was authorized by state or municipal law to effect a custodial arrest for the particular offense, the resulting arrest will not violate the fourth amendment.
19 F.3d at 784. Accordingly, because there was ample probable cause to conclude tat Bevacqua was committing a traffic violation, his arrest was lawful and his motion to suppress should be denied.
IV. GOVERNMENT'S MOTION TO QUASH SUBPOENAS
Defendants have served several subpoenas pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. These subpoenas fall into two general categories. First, defendants have served virtually identical subpoenas upon the Office of the United States Attorney for the Eastern District of New York, the Federal Bureau of Investigation, the Nassau County Police Department, the Suffolk County Police Department, and the New York State Organized Crime Task Force. These subpoenas seek production of logs photo graphs and other documents reflecting surveillance by these law enforcement agencies of the defendants and seven enumerated locations from March 1, 1991 through December 31, 1993. See Defs.' Mem. Opp. Gov't's Mot. to Quash, Ex. A. Second, defendant Petrizzo has served a subpoena seeking documents from Richard Meltsner, an accountant who apparently prepared tax returns for Carmine Sessa and his family. Sessa is expected to testify for the government at trial. The government has filed a motion to quash directed to each of these subpoenas.
A. The Law Enforcement Subpoenas
Discovery in criminal cases is governed by Rule 16 of the Federal Rules of Criminal Procedure. With the exception of those documents specifically enumerated in Rule 16(a)(1), Rule 16(a)(2) prohibits
discovery or inspection of reports, memoranda or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.