People v. Guerra — 65 N.Y. 60

Majority

p. 60

The People of the State of New York, Respondent, Louis Guerra, Appellant.

Argued March 28, 1985;

decided May 9, 1985

POINTS OF COUNSEL

Gerald B. Lefcourt and Erica Horwitz for appellant.

I. The suppression court erroneously believed it lacked the power to

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review the ex parte decision by a Judge of coordinate jurisdiction to issue a warrant, and,, therefore, failed to give appellant’s constitutional and statutory claims meaningful, independent review, denying appellant due process. (United States v White, 401 US 745 ; Matter of De Joy v Zittell, 67 AD2d 1076 ; People v Sossa, 77 Misc 2d 98 ; People v Fusco, 75 Misc 2d 981 ; People v Fox, 56 NY2d 615 ; People v Romney, 77 AD2d 482 .) II. The warrantless seizure of evidence by use of a pen register device, which invaded appellant’s substantial privacy interest in the telephone numbers he called, violated appellant’s rights under the New York Constitution. (United States v New York Tel. Co., 434 US 159 ; Smith v Maryland, 442 US 735 ; Oregon v Hass, 420 US 714 ; People v Smith, 59 NY2d 454 ;People v Adams, 53 NY2d 241 ; People v Elwell, 50 NY2d 231 ; People v Settles, 46 NY2d 154 ; People v Isaacson, 44 NY2d 511 ; Katz v United States, 389 US 347 ; People v Magril, 38 AD2d 698 , 31 NY2d 802 .) III. The eavesdropping violated appellant’s constitutional and statutory rights because the People did not establish the reliability of the informant or his specific information, thereby failing to demonstrate probable cause to believe he was committing drug offenses. (Burger v New York, 388 US 41 ; People v Gnozzo, 31 NY2d 134 ; Aguilar v Texas, 378 US 108 ; People v Elwell, 50 NY2d 231 ; People v Hanlon, 36 NY2d 549 ; People v Rodriguez, 52 NY2d 483 ; People v Hendricks, 25 NY2d 129 ; People v Penna, 53 AD2d 941 ; People v Di Figlia, 50 AD2d 709 ; People v Landy, 59 NY2d 369 .) IV. The application for the eavesdropping warrant failed to establish probable cause to believe appellant’s home telephone was being used to commit drug offenses, thereby violating appellant’s constitutional and statutory rights. (United States v Aloi, 449 F Supp 698 ; United States v Archer, 486 F2d 670 ; People v Martin, 32 NY2d 123 ; Matter of Tejada v Christian, 71 AD2d 527 ; People v Trapier, 47 AD2d 481 ; United States v Di Re, 332 US 581 ; People v Di Carlo, 43 AD2d 797 ; People v Gnozzo, 31 NY2d 134 ; Berger v New York, 388 US 41 ; People v Miller, 36 AD2d 898 .) V. The trial court erroneously refused to order evidentiary hearings on the inclusion in the wiretap application of false statements essential to the finding of probable cause and on the misleading omissions of material facts. (Franks v Delaware, 438 US 154 ; People v Slaughter, 37 NY2d 596 ; People v Solimine, 18 NY2d 477 ; People v Alfinito, 16 NY2d 181 ; People v Elwell, 50 NY2d 231 ; United States v Vazquez, 605 F2d 1269 ; United States v Lefkowitz, 618 F2d 1313 ; United States v Chesher, 678 F2d 1353 ; United States v Rios, 611 F2d 1335 .) VI. Given the People’s utter failure to meet their burden of proof on the minimization issue, the trial court im

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properly denied appellant’s motion for a minimization hearing and for suppression. (People v Floyd, 41 NY2d 245 ; People v Brenes, 42 NY2d 41 ; People v Di Stefano, 38 NY2d 640 ; People v Sardegna, 91 AD2d 671 ; People v Calogero, 75 AD2d 455 ; Scott v United States, 436 US 128 ; People v Frank, 85 AD2d 109 ; People v Castania, 73 Misc 2d 166 ; People v Holder, 69 Misc 2d 863 .)

Robert M. Morgenthau, District Attorney (John Latella and Robert M. Pitler of counsel), for respondent.

I. Defendant’s motion to suppress received full and fair consideration by the court. (People v Ford, 62 NY2d 275 ; People v Foster, 19 NY2d 150 ; People v Versace, 73 AD2d 304 ; People v Basilicato, 114 Misc 2d 619 .) II. The use of a pen register device without prior judicial approval was constitutional. (Franks v Delaware, 438 US 154 ; People v Seidita, 49 NY2d 755 ; People v Penna, 53 AD2d 941 ; People v Di Raffaele, 55 NY2d 234 ; United States v Todisco, 667 F2d 255 , 455 US 906 ; People v Stewart, 73 Misc 2d 399 .) III. The affidavit in support of the warrant established the reliability of both the informant and his information and demonstrated probable cause to believe that defendant was using his home telephone to conduct his illegal drug business. (People v Harrison, 57 NY2d 470 ; People v Oden, 36 NY2d 382 ; People v Nieves, 36 NY2d 396 ; People v Wirchansky, 41 NY2d 130 ; People v Rodriguez, 52 NY2d 483 ; People v McRay, 51 NY2d 594 ; People v Elwell, 50 NY2d 231 ; Aguilar v Texas, 378 US 108 ; People v Landy, 59 NY2d 369 ; People v Comforto, 62 NY2d 725 .) IV. The lower court correctly denied, without a hearing, defendant’s motion to suppress because certain statements in the affidavit in support of the warrant application, even if false, were not material to a finding of probable cause. (Franks v Delaware, 438 US 154 ; People v Plevy, 52 NY2d 58 ; United States v Vazquez, 605 F2d 1269 ; People v Slaughter, 37 NY2d 596 ; People v Solimine, 18 NY2d 477 ; United States v Barnes, 604 F2d 121 , 446 US 907 ; United States v Webb, 623 F2d 758 .) V. The court properly denied defendant’s request for a hearing on the issue of minimization. (People v Kaminski, 58 NY2d 886 ; People v Allweiss, 48 NY2d 40 ; Scott v United States, 436 US 128 ; People v Floyd, 41 NY2d 245 ; United States v Daly, 535 F2d 434 ; United States v Manfredi, 488 F2d 588 ; People v Di Stefano, 38 NY2d 640 ; People v Sardegna, 91 AD2d 671 ; People v Calogero, 75 AD2d 455 .)

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

The defendant pleaded guilty after the denial of his motion to suppress evidence seized pursuant to an eavesdropping warrant.

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The Appellate Division affirmed, without opinion ( 100 AD2d 982 ).

On this appeal the defendant argues that a number of errors were committed in connection with the motion to suppress. Only two points warrant discussion.

First the defendant argues that the court denied his motion to suppress without considering the merits of his contention that the warrant application did not establish probable cause. The defendant notes that the suppression court expressed some reluctance to review the probable cause determination made by the Judge who issued the warrant, a Justice of coordinate jurisdiction (CPL 700.05). This concern was unfounded. By statute the court had jurisdiction to entertain the defendant’s motion to suppress (CPL 710.50) and could not summarily deny it simply because the warrant had been issued by another Justice of the court (CPL 710.60 [2], [3]; cf. Matter of De Joy v Zittell, 67 AD2d 1076 ). Although the Judge who issued the warrant had determined that probable cause existed, the law of the case doctrine did not preclude the defendant from seeking to have that determination reviewed in the context of a motion to suppress submitted to another Judge of that court. The warrant was an ex parte order and the law of the case doctrine does not prevent the defendant from challenging a determination which he had no opportunity to litigate at the time it was made (21 CJS, Courts, § 195, at 334-335; Levy v Paramount Publix Corp., 149 Misc 129 , affd 241 App Div 711 , affd 265 NY 629 ; People v Martin, 97 Mise 2d 441, revd on other grounds 71 AD2d 928 ). To the extent that People v Romney ( 77 AD2d 482 ) holds to the contrary it is erroneous and should not be followed.

However, the defendant is mistaken in his belief that the court rejected his probable cause argument on this procedural ground. The record shows that despite the initial reluctance the court did entertain the motion on the merits and concluded that probable cause was not lacking.

Second, the defendant urges that the suppression court erred in concluding that the police did not violate his constitutional rights by using a pen register on his telephone line without a warrant. Evidence obtained in this manner was later included in the application for the eavesdropping warrant. The defendant concedes that the use of the pen register did not violate his rights under the 4th Amendment (Smith v Maryland, 442 US 735 ), but urges that he is afforded greater protection in this regard under the State Constitution (art I, § 12). This court rejected a similar argument in an analogous case involving toll

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billing records (People v Di Raffaele, 55 NY2d 234 , 241-242). The defendant seeks to distinguish this case on the ground that pen register records are potentially more revealing than toll records because they provide a list of all numbers dialed, both local and long distance or toll calls and therefore are entitled to greater protection from police scrutiny. In each instance, however, the information is available to the telephone company and, as we noted in People v Di Raffaele (supra), the defendant “had no legitimate expectation of privacy in the records maintained by the telephone company”.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Kane^[1] concur in Per Curiam opinion; Judge Alexander taking no part.

Order affirmed.

* Designated pursuant to NY Constitution, article VI, § 2.

Cases cited

United States v. White 401 US 745 SCOTUS 1971-04-05 p. 61
De Joy v. Zittell 67 AD2d 1076 N.Y. App. Div. 1979-02-23 p. 61, p. 63
People v. Sossa 77 Misc 2d 98 N.Y. Crim. Ct. 1974-03-04 p. 61
People v. Fusco 75 Misc 2d 981 Nassau Cty. Ct. 1973-10-17 p. 61
People v. Fox 56 NY2d 615 N.Y. 1982-04-06 p. 61
People v. Romney 77 AD2d 482 N.Y. App. Div. 1980-12-12 p. 61, p. 63
United States v. New York Telephone Co. 434 US 159 SCOTUS 1977-12-07 p. 61
Smith v. Maryland 442 US 735 SCOTUS 1979-06-20 p. 61, p. 63
Oregon v. Hass 420 US 714 SCOTUS 1975-03-19 p. 61
People v. Smith 59 NY2d 454 N.Y. 1983-07-07 p. 61
People v. Adams 53 NY2d 241 N.Y. 1981-06-16 p. 61
People v. Elwell 50 NY2d 231 N.Y. 1980-05-06 p. 61, p. 62
People v. Settles 46 NY2d 154 N.Y. 1978-12-21 p. 61
Katz v. United States 389 US 347 SCOTUS 1967-12-18 p. 61
People v. Magaril 31 NY2d 802 N.Y. 1972-11-02 p. 61
Berger v. New York 388 US 41 SCOTUS 1967-06-12 p. 61
People v. Gnozzo 31 NY2d 134 N.Y. 1972-07-06 p. 61
Aguilar v. Texas 378 US 108 SCOTUS 1964-06-15 p. 61, p. 62
People v. Hanlon 36 NY2d 549 N.Y. 1975-05-08 p. 61
People v. Rodriguez 52 NY2d 483 N.Y. 1981-04-09 p. 61, p. 62
People v. Hendricks 25 NY2d 129 N.Y. 1969-07-02 p. 61
People v. Penna 53 AD2d 941 N.Y. App. Div. 1976-07-08 p. 61, p. 62
People v. DiFiglia 50 AD2d 709 N.Y. App. Div. 1975-11-06 p. 61
People v. Landy 59 NY2d 369 N.Y. 1983-06-30 p. 61, p. 62
People v. Martin 32 NY2d 123 N.Y. 1973-03-23 p. 61
Tejada v. Christian 71 AD2d 527 N.Y. App. Div. 1979-12-20 p. 61
People v. Trapier 47 AD2d 481 N.Y. App. Div. 1975-05-01 p. 61
United States v. Di Re 332 US 581 SCOTUS 1948-01-05 p. 61
People v. Di Carlo 43 AD2d 797 N.Y. App. Div. 1973-12-13 p. 61
Bethlehem Steel Corp. v. New York State Division of Human Rights 36 AD2d 898 N.Y. App. Div. 1971-04-27 p. 61
Franks v. Delaware 438 US 154 SCOTUS 1978-06-26 p. 61, p. 62
People v. Slaughter 37 NY2d 596 N.Y. 1975-10-23 p. 61, p. 62
People v. Solimine 18 NY2d 477 N.Y. 1966-12-29 p. 61, p. 62
People v. Alfinito 16 NY2d 181 N.Y. 1965-10-21 p. 61
People v. Brenes 42 NY2d 41 N.Y. 1977-06-14 p. 62
People v. Di Stefano 38 NY2d 640 N.Y. 1976-02-17 p. 62
People v. Calogero 75 AD2d 455 N.Y. App. Div. 1980-07-10 p. 62
Scott v. United States 436 US 128 SCOTUS 1978-05-15 p. 62
People v. Frank 85 AD2d 109 N.Y. App. Div. 1982-02-26 p. 62
People v. Castania 73 Misc 2d 166 Monroe Cty. Ct. 1973-02-22 p. 62
People v. Holder 69 Misc 2d 863 N.Y. Sup. Ct. 1972-04-25 p. 62
People v. Ford 62 NY2d 275 N.Y. 1984-05-15 p. 62
People v. Foster 19 NY2d 150 N.Y. 1967-02-23 p. 62
People v. Versace 73 AD2d 304 N.Y. App. Div. 1980-03-24 p. 62
People v. Basilicato 114 Misc 2d 619 Albany Cty. Ct. 1982-06-23 p. 62
People v. Seidita 49 NY2d 755 N.Y. 1980-02-07 p. 62
People v. Di Raffaele 55 NY2d 234 N.Y. 1982-02-23 at 241-242 p. 62, p. 64
Central Intelligence Agency v. Holy Spirit Ass'n for the Unification of World Christianity 455 US 906 SCOTUS 1982-01-18 p. 62
People v. Stewart 73 Misc 2d 399 N.Y. Crim. Ct. 1973-03-28 p. 62
People v. Harrison 57 NY2d 470 N.Y. 1982-11-18 p. 62
People v. Oden 36 NY2d 382 N.Y. 1975-04-03 p. 62
People v. Nieves 36 NY2d 396 N.Y. 1975-03-26 p. 62
People v. McRay 51 NY2d 594 N.Y. 1980-12-18 p. 62
People v. Comforto 62 NY2d 725 N.Y. 1984-05-08 p. 62
People v. Plevy 52 NY2d 58 N.Y. 1980-12-22 p. 62
Thomas v. Review Board of the Indiana Employment Security Division 446 US 907 SCOTUS 1980-04-21 p. 62
People v. Kaminski 58 NY2d 886 N.Y. 1983-02-15 p. 62
People v. Allweiss 48 NY2d 40 N.Y. 1979-10-16 p. 62
Levy v. Paramount Publix Corp. 149 Misc 129 N.Y. Sup. Ct. 1933-07-14 p. 63
Levy v. Paramount Publix Corp. 265 NY 629 N.Y. 1934-11-20 p. 63
People v. Martin 71 AD2d 928 N.Y. App. Div. 1979-08-20 p. 63