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Wiretap Applications – Criminal Procedure Law §§ 700.15 and 700.20 Exhaustion of Normal Investigative Techniques.


PEOPLE V. RABB

DECIDED FEBRUARY 15, 2011 NEW YORK COURT OF APPEALS

Issue: whether it was established that the police established that normal investigative mearsures had been exhausted or were reasonably unlikely to succeed if tried or were too dangerous to employ before they made an application for a wiretap under Criminal Procedure Law §§ 700.15(4) and 700.20(2)(d).

Holding: Court of Appeals found that the People did demonstrate that they had used other investigative techniques or that normal investigative techniques would prove fruitless.

Facts: 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.

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. 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.

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 did not meet the dictates of CPL 700.15(4). 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.

Legal Analysis :

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" 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 court-authorized eavesdropping warrants with federal standards.

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.

The Court of Appeals found that there was a record to supprt the findings that the People’s application complied wit section 700.15(4) and 700.20(2)(d). The People had used an undercover posing as a contractor who obtained a phone number registered to Carol Rabb. The cross checking of phone numbers also showed that there were a number of phone calls between Walker and Rasberry and someone named Divine. The police wiretapped these phones and heard Walker and Rabb discussing collusion between two rival coalitions. Police used surveillance to try and identify Rabb, but were unsuccessful.

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].

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.

Here, the People provided "some basis for concluding that less intrusive investigative procedures [were] not feasible: 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 [*7]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 conventional investigatory techniques. 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.

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.