People v. Schneider
N.Y. Slip Op. 03486
Decided on June 3, 2021
Issue:
Do New York Judges Have National Authority to Wiretap Cell Phones?
Whether a New York State Supreme Court Justice had authority to issue wiretap orders under Title III’s enabling statute, 18 U.S.C. § 2516(2), of the Omnibus Crime Control and Safe Streets Act of 1968 and under New York’s CPL article 700.05(4) on a mobile phones located outside of New York State when all calls originate and terminate outside of New York.
Eavesdropping Warrants are ‘Executed’ Where and When the Listening Occurs
Holding:
The Court of Appeals held that under both 18 U.S.C. § 2516(2) and CPL article 700.05(4), eavesdropping warrants are “executed” in the geographical jurisdiction where the communications are rerouted, heard, and accessed by authorized law enforcement, and that the Brooklyn Judge, in this case, had jurisdiction to issue to warrant on cell phones in California because, although the calling and receiving cell phones were outside of New York, the calls were rerouted by the phone company to Brooklyn and first listened to in Brooklyn.
Facts:
Defendant Joseph Schneider is a lifelong resident of California who operated his own gambling website. Police in Kings County conducted a two-year investigation into the illegal gambling enterprise. The evidence against Schneider consisted of conversations recorded over the course of a six-month wiretap investigation beginning in December 2015, although the warrant applications did not allege that Schneider had any contact with the state of NY or that he had any customers in NY. Instead, the People summarized four conversations between Schneider and a New Jersey-based bookmaker as evidence that Schneider operated a gambling website. The warrant application described Schneider’s business as “national in scope,” noting that he had placed calls to numbers in California, Arkansas, Colorado, Florida, Michigan, Hawaii, and Nevada. However, New York was not among the states listed, and the warrant application did not suggest that Schneider had communicated by phone with anyone located in New York. Nevertheless, the NY Supreme Court issued the warrant and the wiretap commenced.
The wiretapping failed to turn up evidence that Schneider made or received calls to or from anyone located in Kings County, but he was indicted, along with seven others, for enterprise corruption, promoting gambling and related crimes. The indictment alleged that in Kings County, Schneider and his accomplices received illegal sports wagers on his gambling website. Schneider moved to suppress the evidence obtained from the wiretapping, arguing that the Kings County Supreme Court Justice lacked the authority to issue the eavesdropping warrants because Schneider and his cell phones were not located in NY and his intercepted call participants who were not physically present in NY. He also claimed that the People violated his due process rights, the separate sovereign doctrine and other constitutional limitations because California law does not include gambling offenses as designated crimes for eavesdropping.
The suppression court denied the motion, concluding that there was probable cause to believe that Schneider committed the gambling crimes in Kings County, that the warrant was executed at a facility in Kings County where the communications were overheard and accessed by law enforcement, and that the warrants were properly issued. The Appellate Division affirmed the judgment, holding that CPL article 700 authorized the Supreme Court Justice in Kings County to issue warrants that would be “executed” in that court’s judicial district, meaning where the communications would be “intentionally overheard and recorded” (176 A.D.3d 979, 980 112 N.Y.S.3d 248 [2d Dept. 2019]).
Analysis:
Interception is not Execution, Listening Is Execution
At issue, in this case, is the interpretation of the statutory language of both Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and CPL article 700. Under CPL 700.05(4), “any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed” is authorized to issue an eavesdropping warrant.
“Eavesdropping” contemplates three specific acts by the government: wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. The warrants, in this case, authorized the interception of both telephone and electronic communications. Telephonic communications, when “intentionally overheard or recorded…by means of any instrument, device, or equipment” are “intercepted communications” as are electronic communications that are “intentionally intercepted and accessed.” (CPL 700.05[3]; Penal Law § 250.00[6])
The Court explained that “wiretapping” occurs upon “the intentional overhearing or recording of telephonic communications” and that statutory definition expressly excludes the actions of telecommunications providers in their normal operations (Penal Law § 250.00[1]), though it is the telecommunications providers who must intercept and re-reroute the calls for police.
New York defines telephonic communication as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station…” An “aural transfer” means “a transfer containing the human voice at any point between and including the point of origin and the point of reception.” (Penal Law § 450.00[4]).
Based on these definitions, the Court held that execution of the warrants occurs not at interception, but at the point where law enforcement listens or records the human voice contained in the telephonic communications and intentionally accesses the transferred signals or data in the electronic communications, notwithstanding the target’s location, the target’s communication devices, or the participants engaged in the call.
Defendant argued that under this approach a judicial warrant allows law enforcement to “re-route phone calls being made anywhere in the country to Kings County and thereby have nation-wide jurisdiction.” The dissent argued, however, that defendant’s claim turned on the word “executed,” a term that is not defined by the statute.
“Listening Post” Rule
Beginning with U.S. v. Rodriguez, 968 F.2d 130 (2d Cir. 1992) every federal Circuit Court interpreting the language of section U.S.C. 2518 has endorsed a “listening post” rule, which focuses on the point of “interception” in analyzing the court’s jurisdiction to issue warrants. In Rodriguez, the Second Circuit concluded that “interception” occurred at both the site of the target phone in New Jersey and at the “place where the redirected contents were first heard” in the Southern District of New York (968 F.2d at 136). The Second Circuit held that the listening post rule served the key goal of the eavesdropping statute, which was to protect constitutional privacy interests from law enforcement abuse while providing technological tools to advance designated criminal investigations when normal investigative procedures are insufficient (id. at 136). Other high courts have followed the federal listening post rule, concluding that under their respective state statutes modeled on Title III, the location of cell phones or call recipients does not drive the analysis, and execution of a warrant occurs at the place of interception—even where both parties to the calls or communications are not within the state (see State v. Ates, 217 N.J. 253, 273, 86 A.3d 710 [2014]; see also Davis v. State, 426 Md. 211, 226-227, 41 A.3d 1044 [2012].
The Court, therefore, argued that both the federal and state statutes link a court’s jurisdiction to issue warrants to the point of interception. Accordingly, the order of the Appellate Division was affirmed.