Wednesday, February 23, 2011

Eavesdropping Warrant Requirement

On February 15th, the Court of Appeals decided People v Rabb and People v Mason (_NY3d_, 2011 NY Slip Op 01050 [2/15/11]). It reviewed a determination of the Appellate Division that requirements for an eavesdropping warrant had been met in a racketeering investigation into a labor coalition which had been alleged to engage various coercive tactics. The requirements, set forth in CPL 700.15 (4), are that an eavesdropping warrant application must demonstrate that normal investigation procedures had been tried and proven to be unsuccessful, were reasonably unlikely to succeed if tried, or were too dangerous to employ.

Keep in mind that the decision has somewhat limited value as precedent, given that the Court of Appeals' authority to review Appellate Division's factual determinations is limited to whether there is "some" support in the record for the determinations. The Court concluded that there was support for the determination that eavesdropping was not being used as an initial investigative step, noting that it had been alleged in the application that phone records, linking the defendants to the conspiracy, had been examined.

The Court also concluded that the People had adequately demonstrated in their papers that normal investigative procedures would not likely to be fruitful, finding that the People had adequately alleged that the use of a grand jury would not work, as the many of the witnesses themselves were targets of the investigation and the execution of search warrant would tip off the targets.

Judge Lippman dissented, concluding that the majority was improperly relying upon efforts tried and exhausted in separate investigations, efforts both unalleged in the defendants' applications and irrelevant to the analysis. These important principles remain intact:

1) The People must allege in their eavesdropping warrant application in a non-conclusory manner that the requirements of CPL 700.15 (4) had been met.

2) The People must demonstrate in their papers, in a non-conclusory manner, that eavesdropping is not the initial step in the investigation. While bootstrapping is apparently permitted, keep in mind that in Rabb, the allegations against others subject to an earlier portion of the investigation were much more substantial.

3) The People cannot meet their burden of demonstrating that the normal investigative procedures are not likely to be successful by merely alleging that similar, unrelated investigations, conducted without eavesdropping, were unsuccessful. Allegations of investigative efforts must be case specific.

I was tempted to note that Shortstops and Second Basemen are nominally required to have a foot on second base while making the turn in a double play, but in practice the rule is that the infielder need only be "in the neighborhood". If we conclude from Rabb that a substantial showing with regard to one part of a conspiracy supports eavesdropping as to other alleged members of the same conspiracy based on showing a connection, without any further showing as to the new eavesdropping target, then perhaps I should have.

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