The People v. Steven Mason The People v. Reginald Rabb
Annotate this Case
Download PDF
=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 2
The People &c.,
Respondent,
v.
Reginald Rabb,
Appellant.
----------------------No. 3
The People &c.,
Respondent,
v.
Steven Mason,
Appellant.
Case No. 2:
Kerry S. Jamieson, for appellant.
Susan Axelrod, for respondent.
Case No. 3:
Barbara Zolot, for appellant.
Susan Axelrod, for respondent.
PIGOTT, J.:
Defendants Reginald Rabb and Steven Mason--who ran P&D
Construction Workers Coalition, a minority labor coalition1-challenge the People's March 31, 2005 eavesdropping warrant
1
Such coalitions originated in the 1960s as a legitimate
means of assisting minority workers to obtain work in the
construction industry.
- 1 -
- 2 -
Nos. 2/3
application on the ground that the People failed to establish
that normal investigative measures had been exhausted, were
reasonably unlikely to succeed if tried, or were too dangerous to
employ (see CPL 700.15 [4]; 700.20 [2] [d]).
Supreme Court
denied defendants' motions to suppress and defendants pleaded
guilty.
The Appellate Division affirmed the judgments upon their
guilty pleas, holding that the People's application adequately
explained why normal investigative measures would be reasonably
unlikely to succeed if tried.
Because there is record support
for that conclusion, we now affirm.
I.
In 2002, the Labor Racketeering Unit of the New York
County District Attorney's Office (LRU) began investigating the
activities of a minority labor coalition called Akbar's Community
Services.
Akbar was run by Derrick Walker and his associate
Frederick Rasberry, who utilized the coalition to force
construction companies, under the threat of vandalism or
intimidation, to hire coalition workers and/or pay money for
"security" from intimidation from other labor coalitions.
During
a three-year investigation into Akbar's practices, the LRU's
investigatory techniques included, among other things, placing a
senior LRU investigator undercover as a construction company
owner whereby he paid Rasberry $800 a month for "security" from
other coalitions and conducting numerous interviews with
construction company personnel about Akbar's practices.
- 2 -
- 3 -
Nos. 2/3
The Akbar investigation uncovered certain coercive
techniques engaged in by P&D.
During one interview with a
construction company president in May 2004, an LRU investigator
inquired as to whether he had been contacted by Walker or
Rasberry.
He responded that he had not, but that he had been
contacted by P&D.
He produced a business card listing the name
"Divine"2 and a cellular phone number.
Upon analyzing the
billing records for Walker's and Rasberry's cell phone,
investigators learned that the "Divine" cell phone number was
registered to one Carol Rabb.
LRU cross-referenced the number
with a minority labor coalition list and discovered that the
contact person for P&D went by the name of "Divine Organizer."
Moreover, according to billing records, between January and July
2004, over 70 calls were made between the "Divine" number and the
numbers belonging to Walker and Rasberry.
On January 19, 2005, with the support of an affidavit
from a senior LRU investigator, the People obtained eavesdropping
warrants against the Akbar targets, Walker and Raspberry.3
2
Rabb has not contested that he went by the name of
"Divine" and, unless otherwise noted, he will be referred to by
his real name.
3
The application stated that, during the 30-month
investigation into Akbar's activities, physical surveillance had
been ineffective in discerning the true nature of the
relationships Walker and Rasberry had with the contractors, that
a grand jury investigation would be futile since the witnesses
were either participants in the crimes (who would receive full
transactional immunity) or coalition victims wary of retaliation,
and that the use of search warrants would be of little help in
- 3 -
- 4 -
Nos. 2/3
Shortly after obtaining an extension of the Walker/Rasberry
warrant on February 1, 2005, a representative of another
construction company advised an LRU investigator that she had
been approached by a P&D "business agent" who demanded that she
put workers from the community on the job site, and left her his
business card, which had the name "CEO Divine Allah" typed on the
card and the same cellular phone number given to the other
contractor.
After obtaining a second extension against Walker and
Rasberry on March 1, 2005, the People obtained an eavesdropping
warrant against Rabb on March 31, 2005, setting forth the same
goals that they had relative to the Walker/Rasberry
investigation: to determine the full scope of Rabb's leadership
position in P&D and gather sufficient evidence to prosecute the
participants in that illegal conduct.
The People later obtained
an eavesdropping warrant against Mason's cell phone on November
9, 2005 in furtherance of the same goals.
Defendants were indicted by the New York County Grand
Jury for, among other crimes, enterprise corruption and grand
larceny in the second degree.
They moved pursuant to CPL 710.20
to suppress evidence obtained from the eavesdropping warrants,
claiming that the March 31, 2005 application for the
eavesdropping warrant for Rabb's cell phone--the only application
assisting law enforcement in determining Walker's supervisory
role in directing coalition members to violate the law.
- 4 -
- 5 -
Nos. 2/3
that defendants challenge on this appeal4--did not meet the
dictates of CPL 700.15(4).
After Supreme Court denied
defendants' respective motions, Rabb pleaded guilty to enterprise
corruption, grand larceny in the second degree (two counts),
attempted grand larceny in the second degree and criminal
possession of a weapon in the fourth degree, and was sentenced as
a second felony offender to an aggregate term of 8 ½ to 17 years'
imprisonment.
Mason pleaded guilty to the same crimes--save for
the criminal possession of a weapon charge--and was sentenced as
a second felony offender to an aggregate term of 7 ½ to 15 years'
imprisonment.
Each defendant appealed the judgment upon his
guilty plea to obtain review of the denial of his suppression
motion.
The Appellate Division affirmed and a Judge of this
Court granted defendants leave to appeal.
II.
Criminal Procedure Law 700.15 (4) provides that an
eavesdropping warrant may issue only
"[u]pon a showing 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 to
employ."
In addition, an application for an eavesdropping
warrant must contain "[a] full and complete statement of facts"
4
It is defendants' position that, should the March 31, 2005
application fall, so too should the subsequent applications.
- 5 -
- 6 -
Nos. 2/3
establishing that one of the requirements of section 700.15(4)
has been met (CPL 700.20 [2] [d]).
It is not coincidental that
the language of the aforementioned CPL provisions is
substantively identical to federal standards set forth in 18 USC
§ 2518 (3) (c) and (1)(c), respectively, since it was the
Legislature's intention to "conform 'State standards for courtauthorized eavesdropping warrants with federal standards'"
(People v McGrath, 46 NY2d 12, 26 [1978] cert denied 440 US 972
[1979] quoting Governor's Memorandum, L 1969, ch 1147, 1969 NY
Legis Ann, at 2586; see United States v Lilla, 699 F2d 99, 102
[2d Cir 1983]).
These statutory requirements ensure that
wiretaps are not routinely employed as an initial step in a
criminal investigation and are used only after the applicant
states, and the court finds, that the dictates of sections 700.15
(4) and 700.20 (2)(d) have been met (see generally United States
v Giordano, 416 US 505, 515 [1974] [referencing the federal
statutory counterparts to the state provisions]).
The Legislature sought, through its enactment of CPL
article 700, to balance competing policies, namely, the
protection of "[t]he right to privacy, to which unsupervised
eavesdropping poses a great threat . . . against society's
interest in protecting itself against crime" (Report of the New
York State Joint Legislative Committee on Crime, Its Causes,
Control & Effect on Society, 1968 NY Legis Doc No 81, at 44).
Significantly, the Legislature took special note of the
- 6 -
- 7 -
Nos. 2/3
importance of eavesdropping as it related to organized crime,
observing that, "[d]ue to the tight structure of organized crime
groups, the use of brutal force to discourage informants, and the
high degree to which key members have insulated themselves from
criminal liability, standard law enforcement techniques generally
result in the conviction of only lower echelon rank and file
members" of those groups (id.).
Then-Governor Rockefeller
likewise acknowledged that the eavesdropping law would afford law
enforcement "greater flexibility in the employment of
eavesdropping as an effective weapon against crime" and, in
particular, organized crime, "where the obtaining of evidence for
successful prosecutions is often extremely difficult" (Governor's
Memorandum, L 1969, ch 1147, 1969 NY Legis Ann, at 2586-2587).
With those objectives in mind, we now address the merits of
defendants' arguments.
III.
Defendants do not challenge Supreme Court's conclusion
that the eavesdropping warrant was issued based upon probable
cause; it is evident from this record that the People established
probable cause to believe that defendants were committing
designated criminal offenses and that communications concerning
those offenses would be obtained through eavesdropping (see CPL
700.15 [2], [3]).
Rather, defendants assert, in essence, that
the People improperly utilized eavesdropping as a first step in
the Rabb/Mason investigation and failed to provide a
- 7 -
- 8 -
Nos. 2/3
particularized showing that normal investigative procedures were
unlikely to succeed, relying instead on conclusory statements
concerning their experience in the Walker/Rasberry investigation.
Defendants further claim that the successful use of physical
surveillance, undercover operations, witness interviews and
search warrants in the Walker/Rasberry investigation demonstrated
that the warrant application here failed to establish that normal
investigative procedures were unlikely to succeed against
defendants.
We disagree and conclude that there is record support
for the findings by Supreme Court and the Appellate Division that
the People's application complied with sections 700.15 (4) and
700.20 (2) (d) (see People v Wheeler, 2 NY3d 370, 373 [2004]).
Contrary to defendants' contention, it is evident from the
People's application that LRU did not resort to wiretapping as a
routine, initial step in its investigation of P&D.
The
application refers to the May 2004 contact between a P&D
representative and a construction contractor, explains that the
phone number given to the contractor was registered to Carol
Rabb, and states that the LRU's cross-referencing of that number
with a list of minority coalitions indicated the name "Divine"
and "Divine's" phone number as contact information for P&D.
Moreover, LRU's undercover officer, who was posing as a
construction contractor, asked Rasberry if there were any other
coalitions that could cause trouble at his job site, and Rasberry
- 8 -
- 9 identified P&D as one of them.
Nos. 2/3
Finally, analysis of billing
records for the "Divine" cell phone unearthed numerous calls to
Walker and Raspberry, calls to construction companies with known
ties to organized crime, and calls to construction companies that
were also contacted by Akbar.
The application also outlined collusive efforts between
Akbar and P&D members.
For instance, LRU uncovered evidence that
between February 2, 2005 and March 25, 2005, there were 63 calls
between Walker's and Rabb's cell phones, some having been
intercepted as a result of the Walker eavesdropping warrant.
LRU
investigators heard Walker and Rabb discussing collusive efforts
between Akbar and P&D, including sharing information about job
sites and assisting each other's coalitions in coercing
construction companies to hire their respective coalition
members.
At that point in the investigation, it was reasonable
for LRU to surmise that Akbar and P&D, although rival coalitions,
joined forces when the opportunities presented themselves and
that these coalitions shared similar objectives.
LRU thereafter
tried to identify Rabb by surveilling meetings that had been set
up on intercepted calls but these efforts proved unsuccessful.
Thus, there is plainly record support that LRU did not resort to
eavesdropping as a first step in its investigation of defendants
and, to the extent that defendants disagree with the lower
courts' interpretation of the facts in the application, such
factual determinations are not further reviewable by this Court
- 9 -
- 10 -
Nos. 2/3
(see People v McRay, 51 NY2d 594, 601 [1980]).
There is likewise record evidence supporting the
findings of the lower courts that LRU demonstrated that normal
investigative procedures were unlikely to succeed.
Although
eavesdropping may not be used as a routine first step, law
enforcement need not "exhaust all conceivable investigative
techniques before resorting to electronic surveillance" (United
States v Concepcion, 579 F3d 214, 218 [2d Cir 2009][citation
omitted]).
Indeed, "[a]n affidavit describing the standard
techniques that have been tried and facts demonstrating why they
are no longer effective is sufficient to support an eavesdropping
order even if every other possible means of investigation has not
been exhausted" (United States v Terry, 702 F2d 299, 310 [2d Cir
1983] [emphasis supplied], cert denied 461 US 931 [1983]).
Nor
is law enforcement "required to resort to measures that will
clearly be unproductive" (id.).
CPL 700.20 (2) requires, among other things, that the
applicant advise the authorizing judicial officer of the nature
and progress of the investigation along with an explanation as to
what investigative techniques have been tried and failed or why
it would be difficult to employ normal law enforcement
techniques.
This language "is simply designed to assure that
wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime"
(United States v Kahn, 415 US 143, 153 n.12 [1974] [discussing 18
- 10 -
- 11 -
Nos. 2/3
USC § 2518 [1], the federal statutory counterpart to CPL 700.20
[2]).
Of course, the application must include more than
"generalized and conclusory statements that other investigative
procedures would prove unsuccessful" (Lilla, 699 F2d at 105).
Here, the People provided "some basis for concluding
that less intrusive investigative procedures [were] not feasible"
(United States v Howard, 350 Fed Appx 517, 519 [2d Cir 2009]).
For instance, the LRU investigator explained that physical
surveillance was of limited use because, although it might show
subjects meeting with each other, it would rarely allow LRU to
hear the conversations, and that any attempts by LRU
investigators to get closer to the subjects to hear the
conversations would render it more likely that the subjects would
discover they were under investigation.
He explained that,
notwithstanding the undercover role he had assumed as a
contractor--which was limited to his paying Rasberry $800 a
month--other undercover efforts would not have enabled LRU to
expose the full scope of Akbar's activities, and were unlikely to
be more successful with P&D.
The application further explained
the futility of conducting a grand jury investigation because
many of the witnesses were participants in the criminal conduct,
and victims of that conduct would be unlikely to testify out of
fear of retaliation.
Furthermore, the issuance of grand jury
subpoenas to witnesses and custodians of business records would
publicize the investigation, thereby foreclosing the use of other
- 11 -
- 12 conventional investigatory techniques.
Nos. 2/3
Finally, the execution of
search warrants would compromise the confidentiality of the
investigation and assuredly apprise its targets, increasing the
likelihood that they would destroy inculpatory records.
Because the People supported their application with
reasons why normal investigative techniques would be ineffective
as to Rabb, it is of no moment that they also utilized their
experiences from the Walker/Rasberry investigation to inform
their allegations against P&D.
Contrary to defendants'
contentions, the People did not seek to eavesdrop based solely
and primarily on how Akbar operated; the People had learned,
through their interception of Walker/Rasberry conversations with
P&D, the collusive nature of the relationship between Akbar and
P&D, how P&D operated its business, and the similarity of their
organizations and objectives.
Therefore, it cannot be said that
the People relied solely on past investigations into minority
labor coalitions in general to support their assertion that
normal investigative techniques would be generally unproductive
in the P&D investigation (see United States v DiMuro, 540 F2d
503, 510-511 [1st Cir 1976], cert denied 429 US 1038 [1977]).
Equally unavailing is defendants' argument that,
because normal investigatory measures had succeeded in the
Walker/Rasberry investigation--including the use of physical
surveillance, undercover operations, witness interviews and
search warrants--the warrant application failed to establish that
- 12 -
- 13 normal investigative measures were unlikely to succeed.
Nos. 2/3
The
People explained why normal law enforcement techniques would be
unlikely to succeed as against these defendants and there was a
factual basis for these assertions. "Merely because a normal
investigative technique is theoretically possible, it does not
follow that it is likely" (Concepcion, 579 F2d at 218 [citation
and quotation marks omitted]).
IV.
Upon conducting our limited review, we are satisfied
that there is record support for the conclusions reached by the
lower courts that the People's application demonstrated that
normal investigative measures would reasonably have been unlikely
to succeed if tried.
Accordingly, in each case, the order of the
Appellate Division should be affirmed.
- 13 -
People v Reginald Rabb and People v Steven Mason
No. 2 and 3
LIPPMAN, Chief Judge(dissenting):
In 1967, the United States Supreme Court struck down
New York State's eavesdropping statute as unconstitutional
(Berger v State of New York, 388 US 41 [1967]).
More than
adumbrating what it would do only months later when it issued its
decision in Katz v United States (389 US 347 [1967]) overruling
Olmstead v United States (277 US 438 [1928]), the Berger Court
held that electronic eavesdropping constituted a search within
the meaning of the Fourth Amendment (Berger, 388 US at 52-53)
and, accordingly, that when the government sought to listen to
the private conversations of its citizenry it was obliged first
to obtain a warrant from a neutral magistrate issued upon
probable cause supported by oath or affirmation, and particularly
describing the object of the contemplated intrusion.
It followed
as well that fruits of unauthorized eavesdropping were subject to
the exclusionary rule, which by the time of Berger had been
applied to the States (id. at 53 citing Mapp v Ohio, 367 US 643,
655 [1961]).
The New York statute challenged in Berger was deemed
facially deficient on numerous grounds, but principally for its
- 1 -
- 2 -
No. 2 and 3
failure to meet the Fourth Amendment's requirement of
particularity and for the open-ended authority it conferred upon
a successful eavesdropping applicant (388 US at 58-59).
These
inadequacies were specially troubling given eavesdropping's
"inherent dangers" (id. at 60).
The practice, the Court noted,
had been historically disfavored and, indeed, universally
outlawed, except for law enforcement purposes (id. at 45-49), in
which context it remained highly problematic by reason of its
unusually intrusive, indiscriminate and insidious capacities.
While acknowledging the representations of numerous highly
respected prosecutors as to the utility of electronic
eavesdropping, particularly in the investigation of organized
crime (id. at 60-62),
the Court responded,
"we cannot forgive the requirements of the
Fourth Amendment in the name of law
enforcement. This is no formality that we
require today but a fundamental rule that has
long been recognized as basic to the privacy
of every home in America. While '(t)he
requirements of the Fourth Amendment are not
inflexible, or obtusely unyielding to the
legitimate needs of law enforcement,' Lopez v
United States, supra, at 464 (dissenting
opinion of Brennan, J.), it is not asking too
much that officers be required to comply with
the basic command of the Fourth Amendment
before the innermost secrets of one's home or
office are invaded. Few threats to liberty
exist which are greater than that posed by
the use of eavesdropping devices. Some may
claim that without the use of such devices
crime detection in certain areas may suffer
some delays since eavesdropping is quicker,
easier, and more certain. However, techniques
and practices may well be developed that will
operate just as speedily and certainly
and-what is more important-without attending
- 2 -
- 3 -
No. 2 and 3
illegality" (id. at 62-63 [emphasis added]).
Responding to Berger's constitutionally based concerns
and holding, Congress in 1968 enacted Title III of the Omnibus
Crime Control and Safe Streets Act (18 USC § 2510, et seq.),
setting forth baseline standards governing the issuance of
eavesdropping warrants (18 USC § 2518) and making those standards
applicable to the States (18 USC § 2516 [2]) while permitting
them to enact still more restrictive provisions (id.).
To the
extent, then, that the New York Legislature one year later, in
enacting New York's conforming electronic eavesdropping statute
(subsequently codified as CPL article 700) engaged in any
balancing of the relevant competing interests, the exercise was
largely academic; the essential balancing had already been
performed by the Supreme Court and Congress.
The State
Legislature, as noted, had the option of being more protective of
personal privacy than Congress had been, but it retained no power
to alter the balance struck at the federal level in the opposite
direction.
It is suggested that New York's eavesdropping statute
was motivated by some policy to make eavesdropping more readily
available in the investigation of organized crime.
But the
thrust of Berger was in precisely the opposite direction, and, in
fact, the ensuing federal enactment, to the extent here relevant,
contained no special dispensation for organized crime
investigations.
Rather, that enactment and its New York
analogue, in undoubted recognition of the "inherent dangers" of
- 3 -
- 4 -
No. 2 and 3
electronic eavesdropping (see Berger, 388 US at 60, 62)
insufficiently appreciated in New York's former eavesdropping
statute, contain what to all appearances are uniformly applicable
presumptions against resort to eavesdropping that can be overcome
only when the proponent of electronic surveillance proffers "a
full and complete statement" of facts establishing either that
normal, less intrusive investigative techniques have been tried
and have failed, or that they reasonably appear unlikely to
succeed in uncovering the sought evidence1 (18 USC § 2518 [1]
[c]; CPL §§ 700.15 (4) and 700.20 [2] [d]).
The question now
presented is whether the affidavit offered in support of the
application for the subject eavesdropping warrant, issued March
31, 2005, met this condition with respect to defendant Rabb.2
Permission to tap the cell phone subsequently found to
have been used by defendant Rabb was sought after a long pending
and then still ongoing investigation of a minority labor
coalition known as Akbar Community Services (Akbar) and its
1
The presumption may also be overcome by a showing that
"normal" investigation would be too dangerous, but that ground is
not here raised.
2
In the course of the electronic surveillance conducted
pursuant to the March 31, 2005 warrant's authority investigators
became aware of the cell phone whose use was eventually traced to
defendant Mason. Permission to eavesdrop on the Mason phone was
sought in subsequent warrant applications. Inasmuch, however, as
those subsequent warrants were premised upon information obtained
pursuant to the March 2005 warrant authorizing the tap of the
"Divine" cell phone, the crucial predicate for the disposition of
each appellant's suppression motion was that set forth in the
supporting March 31, 2005 affidavit.
- 4 -
- 5 -
No. 2 and 3
principals Derrick Walker and Frederick Rasberry, involving
witness interviews, document review, visual surveillance,
undercover work, search warrant execution and, finally,
electronic eavesdropping, disclosed that a cell phone in the name
of one Carol Rabb was being used by an individual then identified
only as "Divine" to communicate respecting racketeering related
activities in which the user was evidently involved.
It was
thought based on information obtained in the course of the Akbar
investigation, most notably phone records and conversations
intercepted under eavesdropping warrants pertaining to the cell
phones used by Walker and Rasberry,3 that "Divine" was a leader
of P&D Construction Workers (P&D).
Although little was actually
known about P&D, it appeared that it was a fledgling minority
labor coalition in competition with the better established Akbar
and that it was to some unascertained extent involved in corrupt
practices.4
Authorization to eavesdrop on the "Divine" cell phone,
used under an account in the name of Carol Rabb, was first sought
in March 2005 in the context of an application seeking to extend
the previously issued Walker and Rasberry eavesdropping warrants.
3
The validity of these warrants is not here at issue.
4
The majority takes considerable liberty when it attributes
to the People at the time of the warrant application of knowledge
of "how P&D operated it business" (majority opinion at 12).
Virtually nothing was known about P&D's structure or operations
at that time.
- 5 -
- 6 -
No. 2 and 3
The applicant's supporting affidavit, dated March 31, 2005,
contains extensive analysis of phone records and lengthy excerpts
of conversations intercepted on the Walker and Rasberry cell
phones purporting to demonstrate in accordance with the
requirements of CPL 710.15 (2) and (3) that there was probable
cause to believe that the investigation's targets were committing
specified crimes and that particular communications respecting
the suspected crimes would be captured through the sought
eavesdropping.
The sufficiency of these probable cause
allegations is not the issue before us; it is, rather, the
adequacy of the immediately following allegations purporting to
demonstrate the need for eavesdropping.
Those allegations, under
the heading "Need for Eavesdropping," occupying only 3 1/2 of the
affidavit's 64 pages, are notably general and conclusory, and
make virtually no attempt to differentiate between the
longstanding Akbar investigation and its corporeal targets and
the practically nascent investigation into P&D and its supposed
leader "Divine."
They are, in fact, barely distinguishable from
those comprising the "Need For Eavesdropping" section of the
affidavit filed in support of the March 1, 2005 eavesdropping
extension application, which targeted only the Walker and
Raspberry cell phones; the relevant paragraphs of the March 31,
2005 application differ from those of the March 1 application
only in their occasional, unelaborated references to "Divine" or
"P&D."
- 6 -
- 7 -
No. 2 and 3
Apart from noting "a number" of attempts during the
preceding month at identifying "Divine" through visual
surveillance of meetings between Walker and Rasberry and their
associates, the affidavit does not trouble to show in accordance
with the first prong of CPL 700.15 (4) that, with respect to P&D
and Divine, "normal investigative procedures [had] been tried and
[had] failed."5
The affidavit instead appears to address itself
to the statute's alternative prong under which the requisite
showing of need can be premised on a demonstration that "normal
investigative procedures . . . reasonably appear to be unlikely
to succeed if tried."
In this connection, the affiant alleges as
he had previously, almost completely without particular
reference, that although physical surveillance might establish
"some useful facts" it would be inadequate to achieve the
investigation's goals and might risk the investigation's secrecy
as investigators attempted to draw near to the targets of their
scrutiny; that eavesdropping is necessary because the targeted
corrupt activities are widespread and involve numerous
participants, and because victims of those activities would
5
While the majority finds relevant the additional
circumstance that a "Divine" business card had, during the Akbar
investigation, been obtained from a contractor who claimed that
it had been left with him by a P&D agent who demanded that
community workers be employed at his worksite, the affiant
apparently did not deem this transaction pertinent to his
explanation of the need for eavesdropping.
This is
understandable since the receipt of the business card and its
ensuing use in identifying P&D as an investigative target in no
way showed that eavesdropping was necessary.
- 7 -
- 8 -
No. 2 and 3
likely be afraid to testify; that, although the affiant in an
undercover capacity had succeeded in transacting illicit business
with Rasberry, additional undercover efforts would be
impracticable because the members of "this group" had long time
associations and family connections precluding the insertion of a
government agent; that a grand jury investigation would be futile
because witnesses would be afraid to testify and, if they did,
would have to be granted immunity;
that grand jury subpoenas
would tip off the investigation's targets, foreclosing other
conventional avenues of inquiry; and, that the execution of
search warrants would be "premature" and would likely result in
the destruction of valuable evidence.
The relevant portion of
the affidavit concludes that evidence necessary for the
successful investigation of "this case," meeting the goals of
"this investigation," can only be obtained through electronic
surveillance.
The sought warrant was granted by a Justice of the
Appellate Division, Second Department and thereafter upheld by
Supreme Court and the Appellate Division, First Department over
claims by both appellants that the need for eavesdropping on
their cell phones had not been made out in accordance with the
requirement of CPL §§ 700.15 (4) and 700.20 (2) (d) by the March
31, 2005 warrant applicant.
This court now affirms upon the
ground that there is record support for the conclusions of those
courts.
Supreme Court, however, never found that there had been
- 8 -
- 9 -
No. 2 and 3
an individualized showing that ordinary investigative techniques
would likely be unavailing with respect to "Divine" and P&D.
In
denying defendant Rabb's suppression motion, it found instead
that such a showing was unnecessary because the futility of
ordinary investigative measures had been shown with respect to
Walker and Raspberry, and "Divine" was allegedly engaged in the
same type of criminal activity.6
The Appellate Division affirmed
without making any additional factual findings.
It refined the
rationale of Supreme Court only to the extent of theorizing that
"[t]he affiant's reliance on experience obtained in a closely
related investigation into similar activities by other suspects
[Walker and Raspberry] was proper, because the affidavit was
sufficiently specific in showing the connection between the two
6
Supreme Court stated:
The People did not have to conduct a
preliminary investigation of defendant as a
prerequisite to establishing that normal
investigative procedures could not be
utilized to investigate defendant's alleged
criminal conduct. The People had already
shown that such measures had been tried and
failed or that they reasonably appeared to be
unlikely to succeed if employed against
Walker and Raspberry. Defendant allegedly
engaged in the same type of criminal
enterprise and criminal activity as that
allegedly engaged in by defendants Walker and
Raspberry. Under those circumstances, the
People were not required to make a more
individualized showing that such measures
would be unlikely to succeed against
defendant or that such measures had been
attempted and failed."
- 9 -
- 10 investigations" (66 AD3d 487 [2009]).
No. 2 and 3
To the extent, then, that
this Court now affirms upon the ground that there were findings
specific to Rabb and P&D to support the conclusion that normal
investigative methods would likely be futile as to them, it acts
as a factfinder in excess of its jurisdiction; no court has to
this point upheld the challenged warrant upon such grounds.
The reason for this is that the warrant application
simply does not state, much less state "fully and completely,"
why normal investigative techniques would not likely be useful in
obtaining evidence implicating the "Divine" cell phone user and
P&D in corrupt labor practices.
What it does do is reiterate,
practically verbatim, a summary explanation of why normal
investigative methods would not be productive with respect to
Akbar and its principals -- an explanation whose sufficiency did
not rest upon the affidavit's assemblage of generic assertions
respecting the "Need for Eavesdropping," but upon the elsewhere
documented 30-month history of the Akbar investigation, in which
ordinary investigative methods had been extensively used.
There,
of course, was no remotely comparable history to recount with
respect to the newly commenced investigation of "Divine" and P&D,
and in its absence the affidavit's pat recitation of difficulties
endemic to organized crime probes was patently insufficient to
explain why ordinary investigative means would likely be
fruitless with respect to "Divine" and P&D.
In view of the circumstance that the baseline standard
- 10 -
- 11 -
No. 2 and 3
for a showing of necessity in justification of electronic
eavesdropping is federal, it is clear that the decisions of the
federal courts applying that standard are of special relevance to
our inquiry, which, minimally, must be whether there is evidence
to permit the inference that the federally compelled standard has
been satisfied.
The People agree that this is so and list in a
decontextualized way numerous bromides to demonstrate that
necessity is not a rigorous requirement, but merely one that may
be met by a showing that electronic surveillance is not being
"routinely employed as the initial step in criminal
investigation" (United States v Giordano, 416 US 505, 515
[1974]).
We are in this vein reminded that resort to traditional
investigative methods need not be exhaustive (see United States v
Robledo, 254 Fed Appx 850 [2nd Cir 2007]), or entirely useless
(see United States v Maxwell, 25 F3d 1389, 1394 [8th Cir 1994]),
before a wiretap may be deemed necessary, and that an
investigator's prior experience may have relevance to a judgment
that less intrusive investigative techniques would not be
efficacious (see United States v Ashley, 876 F2d 1069, 1072 [1st
Cir 1989]).
It is in addition impressed upon us that the federal
cases employ a "common sense approach" in evaluating the
government's assessment of the utility of alternative
investigative methods (see United States v Blackmon, 273 F3d
1204, 1207).
But none of these maxims have actually been applied
as the People essentially contend they should be here,
- 11 -
- 12 -
No. 2 and 3
effectively to relieve a warrant applicant of the burden of
specifying why less intrusive alternatives to eavesdropping would
be unavailing in advancing the investigation of a particular
target.
That electronic surveillance is not the very first step
in an investigation is not license for it to be the second or
third step; such a literal-minded application of Giordano's
dictum to effectively supplant the statutory requirement was
never intended.7
It is true that the applicant need not show that
alternative methods have actually been tried and have failed, but
in lieu of demonstrating necessity by that means, there must, if
the necessity requirement is not to be rendered practically
nugatory, be some equivalently "full and complete" explanation
under the statutory second prong as to why the use of traditional
methods would be ineffective to meet reasonably defined
7
This is clear when the quotation is read in context:
"Congress legislated in considerable detail
in providing for applications and orders
authorizing wiretapping and evinced the clear
intent to make doubly sure that the statutory
authority be used with restraint and only
where the circumstances warrant the
surreptitious interception of wire and oral
communications. These procedures were not to
be routinely employed as the initial step in
criminal investigation. Rather, the applicant
must state and the court must find that
normal investigative procedures have been
tried and failed or reasonably appear to be
unlikely to succeed if tried or to be too
dangerous" (416 US at 515 [emphasis added]).
- 12 -
- 13 investigational objectives.
No. 2 and 3
What is required is a factually
detailed statement "establishing" (CPL 700.20 [2] [d]) that the
evidence sought through a particular wiretap, or its probative
equivalent, is not reasonably likely to be acquired through
"normal" means.
This was never provided as to "Divine" and P&D,
and until now was never found to have been.
Rather, what was
found was that necessity had been shown to justify the Walker and
Rasberry wiretaps and that because Akbar and P&D were similar, or
because their investigations were connected, the necessity
predicate as to the Akbar principals could be transferred to
justify the tapping of the cell phones of P&D principals.
The
legal issue before us is the propriety of that predicate
transfer.
This is not a mixed question of law and fact, but
entirely one of law as to which federal cases have spoken with
great clarity.
In United States v Santora (600 F2d 1317 [9th Cir
1979]), the court reviewed eavesdropping warrants issued in
connection with an investigation into a numerously populated
conspiracy to traffic in stolen airline tickets.
Although
upholding the electronic surveillance warrants initially issued
in the investigation, the court found that the need for certain
additional wiretaps subsequently authorized within the same
investigation, had not been sufficiently made out.
It noted that
the validity of the prior wiretap authorizations did not entitle
the government to "dispense with the required showing when
- 13 -
- 14 -
No. 2 and 3
applying to tap the telephones of other conspirators" and cited
United States v Abascal (564 F2d 821, 826 [9th Cir 1977]) for the
proposition that “[i]t is not enough that the agents believe the
telephone subscribers they wish to tap are all part of one
conspiracy. Less intrusive investigative procedures may succeed
with one putative participant while they may not succeed with
another” (600 F2d at 1321).
Similarly, in United States v
Gonzalez, Inc., (412 F3d 1102 [9th Cir 2005]), the validity of
prior eavesdropping warrants issued in connection with an
investigation into an immigration smuggling ring, permitting the
tapping of certain phones at a bus terminal, was held
insufficient to demonstrate the necessity of subsequent wiretaps
placed on phones at a different location:
"[the government] attempted to shoe-horn the
significant investigatory work the government
conducted before applying for the Terminal
wiretap into its application for the Blake
Avenue wiretap. But the government is not
free to transfer a statutory showing of
necessity from one application to
another-even within the same investigation.
This court has held that an issuing judge may
not examine various wiretap applications
together when deciding whether a new
application meets the statutory necessity
requirement. Each wiretap application must
separately satisfy the necessity requirement"
(id. at 1115 [emphasis added]).
Here, while we deal with what in the investigator's
eyes was one investigation into the corrupt practices of minority
labor coalitions, the investigation, objectively, had numerous
distinct targets.
P&D and Akbar were separate, indeed by the
- 14 -
- 15 People's description, rival, entities.
No. 2 and 3
While they may have
shared similar goals for their respective memberships and
leaders, and there was some evidence that they occasionally
colluded, there was no basis to suppose that they were part of a
single overarching criminal conspiracy or enterprise.
Moreover,
even if there had been, it is clear from Santora and Gonzalez
that the showing of necessity made in justification of the Akbar
wiretaps, was not transferrable to support the P&D wiretaps.
Indeed, the showing of necessity made with respect to Walker and
Rasberry would not even have been transferrable to justify
eavesdropping on the phones of other Akbar principals.
That normal means had, after extensive and often
useful application, reached a point of diminishing returns in the
Akbar investigation, did not "establish" that such means were
unlikely to be productive in the relatively recently commenced
investigation of P&D and its principals.
If the two entities
were comparable as the People contend, the early success of the
Akbar investigation using ordinary means of inquiry, would seem
to suggest that such means would have been similarly efficacious
in the early stages of the P&D investigation.
If, on the other
hand, the entities were, as defendants contend, quite different,
there would appear to be no ground to suppose that the experience
in investigating Akbar had much predictive value in assessing the
utility of "normal" techniques in the investigation of P&D.
is, in any case, not consistent with the constitutionally
- 15 -
It
- 16 -
No. 2 and 3
grounded statutory presumption against electronic eavesdropping
that there should be a proliferation of wiretaps based upon
necessity findings turning on the mere relatedness or similarity
of investigations or their targets.
If that were permitted,
wiretapping would, in a broad range of situations defying
judicial containment, routinely become among the first
investigative means employed, rather than a necessary supplement
to ordinary, less intrusive measures.
It does not seem to me wise to avoid this squarely
presented problem, and particularly to do so by denominating the
legal issue before us as a "mixed question."
Today's decision,
while perhaps narrowly intended, will, given its factual
underpinning, be taken as granting broad permission to dispense
with the necessity requirement in a wide range of circumstances
based simply upon the supposed similarity of targets or the
connectedness of investigations.
These theories undeniably have
their attraction; it may well seem a foregone conclusion borne
out by an investigator's experience in probing other apparently
similar criminal enterprises that the entity with which he or she
is now confronted will not be amenable to penetration by ordinary
means and that the investigation's ultimate objective -- the
complete extirpation of the criminal organism's many roots and
tendrils -- will not be achievable except with the aid of
electronic surveillance.
But it is in this context a court's
obligation under the law to check the impulse toward the
- 16 -
- 17 -
No. 2 and 3
expedient use of wiretaps and remind those in the often
competitive business of ferreting out crime that the "fact 'that
traditional investigation methods do not reveal all are generic
problems of police investigation [and that] [t]heir generic
nature does not dissipate simply because the government claims a
vast investigative purpose . . . The government may not cast its
investigative net so far and wide as to manufacture necessity in
all circumstances'" (United States v Gonzalez, Inc., 412 F3d at
1114-1115, quoting United States v Blackmon, 273 F3d at 1211).
Because I believe that the tack now taken by this Court affords
government a net far more capacious than the law permits, either
in its federal or conforming state iteration, I would reverse,
grant the motions for suppression of communications obtained by
means of the wiretaps authorized in reliance upon the March 31,
2005 warrant, and remit the matters for further proceedings.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
In Each Case: Order affirmed. Opinion by Judge Pigott. Judges
Graffeo, Read and Smith concur. Chief Judge Lippman dissents and
votes to reverse in an opinion in which Judges Ciparick and Jones
concur.
Decided February 15, 2011
- 17 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.