39 N.Y.3d 132 (2023)
Criminal Appeals Lawyer in New York
Issue of Wiretaps and Three-Way Phone Calls:
Whether a defendant who was conferenced into a three-way phone call, which originated from a local jail, is entitled to notice under CPL § 700.70 of the prosecution’s intent to use wiretap evidence at trial.
Holding:
The recorded telephone conversation of a three-way phone call was an intercepted communication under CPL §700.05(3). As such, a defendant, who was conferenced into a three-way phone call, was entitled to notice under CPL §700.70 of the People’s intent to use the wiretap evidence, along with a copy of the warrant and application.
Legal Analysis:
Criminal Procedure Law article 700 prescribes the procedures governing eavesdropping warrants, commonly referred to as wiretaps. We require strict—indeed, “scrupulous”—compliance with the provisions of this statute, and the prosecution has the burden of establishing such compliance (see People v Capolongo, 85 NY2d 151, 159-160 [1995]). In imposing this rigorous standard, we recognize that “[t]he insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one’s individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights” (People v Schulz, 67 NY2d 144, 148-149 [1986]). Our State Constitution contains explicit protections against the unreasonable interception of telephonic communications (NY Const, art I, § 12), and “our interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect” (Schulz, 67 NY2d at 148 [alterations omitted]).
Pursuant to CPL 700.70, the “contents of any intercepted communication, or evidence derived therefrom,” cannot be used at trial unless the People, “within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved.”
An “intercepted communication” is defined, as relevant here, as “a telephonic . . . communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver” (CPL 700.05 [3] [a]). In People v Diaz (33 NY3d 92 [2019]), we held that “detainees, informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls” (id. at 95). In such circumstances, detainees “impliedly consent to the ‘taping’ of those conversations” (People v Williams, 35 NY3d 24, 46 [2020]). The recording made by the local jailwas made with the consent of A.J.—the sender—and accordingly was not an “intercepted communication” (see CPL 700.05). THE LOCAL JAIL could “share the recording[ ] with law enforcement officials and prosecutors . . . without violating the Fourth Amendment” (Diaz, 33 NY3d at 95). That does not end our inquiry, however. The issue here is whether the recorded conversation obtained from the local jailwas “derived” from an “intercepted communication.”
The wiretap and the recording made by the local jail are separate and distinct pieces of potential evidence, and the fact that they captured the same information does not affect this analysis.
Guided by the principle that “article 700 and all its integral parts [should] not be treated lightly or with cavalier disregard” (Schulz, 67 NY2d at 149 ), we interpret the statute to require an independent consent analysis for the eavesdropping conducted pursuant to the warrant. The wiretap and the recording made by the local jail are separate and distinct pieces of potential evidence, and the fact that they captured the same information does not affect this analysis. Indeed, “it is not unusual for evidence to be inadmissible for one reason, and yet, admissible under a different theory” (People v Simmons, 86 Misc 2d 737, 744 [Sup Ct, NY County 1976], affd 54 AD2d 624 [1st Dept 1976] [admitting into evidence consensual recordings of phone conversations while suppressing recordings of the same conversations obtained pursuant to an unlawful wiretap]).
Just as the existence of the wiretap does not convert the jail recording into an “intercepted communication,” the consent given to the local jail does not convert the wiretap into a consensual recording and vitiate the protections of CPL article 700. The fact that the sender consented to recording by the detention facility has no bearing on the status of the communication overheard on the wiretap. Authorization for the Attorney General’s Office to listen to and record the call came from the eavesdropping warrant, not A.J.’s consent. When the Attorney General’s Office intercepted the call, it was “intentionally . . . recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver” (CPL 700.05 [3] [a]). The wiretap was therefore an “intercepted communication” within the meaning of CPL 700.05.
See Also the following Blogs on Wiretaps
The Blog Page of a Criminal Appeals Lawyer
Wiretaps beyond the borders of New York State
Wiretaps and Exhausting Normal Investigative Measures
Wiretaps and Parents can Consent to Eavesdrop on their Children
Facts of the case and the phone call in question:
The three-way phone call began with a prisoner, Adrian Jones, at a local jail in Onandaga, New York when he called Mr. Dudley Harris. Mr. Harris made the call a three-way conference call when he called Mr. Artel Clarke. Mr. Clarke’s phone was tapped as part of a distinct drug investigation by the New York State Attorney General. During the call, Clarke handed the phone to Mr. Myers, the appellant here, who then had a brief conversation with Mr. Harris. Unbeknownst to Harris and Myers, the exchange between them was recorded by both the wiretap obtained by the New York State Attorney General and by the recording devices at the Onandaga County Jail.
During the phone call, Myers allegedly made admissions about being involved in a hit and run accident. He was eventually charged criminally with the hit and run, and the prosecution sought to introduce a recording of the phone call at trial. The prosecution asserted that because the call was recorded by the jail that the participants in the phone call were not entitled to notice under CPL § 700.70. However, the call was also being recorded by the New York State Attorney General as part of a separate and distinct investigation.