People v. Kramer, 1998 N.Y. Int. 0142 (Nov. 20, 1998).

STANDING - SUPPRESSION OF EVIDENCE - AGGRIEVED PERSONS

ISSUE & DISPOSITION

Issue

Whether Defendants lacked standing to seek judicial suppression of telephonically acquired evidence.

Disposition

No. CPL 710.20(7) allows "aggrieved" persons to move for suppression of evidence obtained by unlawfully or improperly by means of a pen register or trap and trace device. Although not specifically included in CPLR 4506(2), partial standing exists for Defendants whose telephone numbers were captured by a pen register and a trap and trace device. In addition, standing is granted to remaining Defendants as evolved targets of the investigations.
 

SUMMARY

Two distinct groupings of prosecutions arose out of criminal investigations of the State Organized Crime Task Force (OCTF).

In January 1995, a judicial pen register and trap and trace order allowing the installation of devices on several telephone poles and lines assigned to Defendant Kramer was issued. Authorization identified the targets of the investigation as "Daniel P. Kramer, his agents, co-conspirators and others yet unknown." The authorization was extended on two other occasions. The pen register devices had the capacity to intercept and record either digital or aural transmissions, depending on whether they were set for "audio off" or "audio on." Using information it obtained from the pen register devices, the OCTF applied for and received an eavesdropping warrant. Defendants moved to suppress direct and derivative evidence obtained through the various devices, claiming that under People v. Bialostock, 80 N.Y.2d 738 (N.Y. 1993), the devices initially used by the investigators were not simply pen registers but rather required probable cause basis before they could be installed and used. The Westchester County Court found that Defendants had standing to challenge the pen register evidence. Subsequently, the court determined that the pen registers used functionally constituted eavesdropping devices under Bialostock and, because no eavesdropping warrant was obtained prior to installation, the court suppressed all of the pen register evidence. The Appellate Division reversed. The Court of Appeals reversed and remitted the case to the Appellate Division. The Court determined that Defendants had standing by analogy to CPLR 4506(2).

In October 1995, a judicial pen register and trap and trace order allowing the installation of devices on telephone lines of Defendant Feeny was issued in relation to a bookmaking investigation conducted by the OCTF. Authorization identified the targets of the investigation as Feeney and "others now known and unknown." Pen registers were installed along with trap and trace devices. Defendant Andriello's telephone number was captured by a trap and trace device. Based on this evidence, an eavesdropping warrant was obtained. With the pen registers switched to "audio on," an incriminating conversation between Defendant Andriello and Defendants Amiel and Feeney was recorded. Defendants moved to suppress evidence in part on the contention that the initial pen registers violated the Bialostock rule that might require a higher level of probable cause. The County Court suppressed all evidence obtained from the pen register and subsequent eavesdropping and search warrants as to all Defendants because the pen register violated Bialostock. The Appellate Division reversed. The Court of Appeals reversed and remitted the case to the Appellate Division. The Court determined that Defendants had standing by analogy to CPLR 4506(2).

Prepared by the liibulletin-ny Editorial Board.