
    The People of the State of New York, Respondent, v. James McDonnell, Appellant.
    Argued December 1, 1966;
    decided December 30, 1966.
    
      Anthony F. Gorreri and Henry W. Schober for appellant.
    
      
      William Calm, District Attorney (Henry P. De Vine of counsel), for respondent.
   Fuld, J.

There can be no doubt, as we recently had occasion to observe, that in the case of eavesdropping orders, “ as in the case of search warrants, there is a significant need for an adequate factual basis on which the Judge will be able to decide whether or not the order or warrant will issue.” (People v. McCall, 17 N Y 2d 152, 159.) However, before considering the existence of such “ adequate factual basis ” for the eavesdropping order before us, we are faced with a threshold question of the defendant’s standing to challenge the validity of the order.

The information, charging the defendant with crimes of bookmaking (Penal Law, § 986) and conspiracy (Penal Law, § 580), alleged, in effect, that he had arranged and conspired with one Peter Urbinati and his wife for the use of their telephone as an “ answering service ” for book-making and gambling operations in Nassau County. Although that telephone was not listed in the defendant’s name, there can be no doubt —indeed, it is the very theory of the prosecution itself — that, if the charges were true, the phone was actually being maintained and used for the defendant’s benefit. Accordingly, the defendant had standing to challenge and question the lawfulness of the eavesdropping order which permitted the police to tap the Urbinati phone and intercept communications over it. (Cf. Jones v. United States, 362 U. S. 257.)

It follows that the defendant was entitled to an adjudication on the merits as to whether the eavesdropping order was improperly issued and the evidence secured by the consequent interception illegally obtained. The defendant properly asserted the lack of an “adequate factual basis” to support the order on his pretrial motion to suppress and, again, at his trial when he objected to the reception of the evidence secured as a result of the wiretapping. (See People v. Habel, 18 N Y 2d 148.) Relief was denied in both instances solely for the reason that he lacked standing and, as a result, the prosecution has never been required to substantiate the validity of the order. Our conclusion that the defendant had standing makes it incumbent upon the People, for the first time, to demonstrate that the order relating to the Urbinati telephone was based on reasonable grounds and, thus, the evidence of guilt legally procured. Accordingly, before we consider whether the defendant’s conviction is free from error, the People should be afforded an opportunity of showing that there was a ‘ ‘ reasonable ground to believe that evidence of crime [might] be * * * obtained ” by tapping the telephone or otherwise eavesdropping on it (Code Crim. Pro., § 813-a). We shall, therefore, withhold determination of this appeal (cf. People v. Cardaio, 18 N Y 2d 924; People v. Malinsky, 15 N Y 2d 86, 96), pending a hearing in the trial court to decide whether the County Court Judge, to whom the application for the eavesdropping order was made, had reasonable grounds to issue it.

The determination of this appeal should be withheld and the case remitted to the District Court of Nassau County for further proceedings in accordance with this opinion.

Keating, J.

(dissenting). In my view, the appellant is totally without ‘ ‘ standing ’ ’ to challenge the validity of the wiretap or the validity of the subsequent search.

Whether probable cause existed to authorize the tap or to justify the search is irrelevant so far as the appellant is concerned. His wire was not tapped and his premises were not searched. In brief, his privacy was not invaded.

We must remember that privacy is the essence of the Fourth Amendment and that the exclusion of evidence is merely the mode adopted to fully secure it.' The right is personal, and, where a person’s privacy has not been violated, he has no cause to complain merely because the violation of another person’s right (if that be the case) reveals evidence incriminating him. (See People v. Portelli, 15 N Y 2d 235.) Thus, in Jones v. United States (362 U. S. 257, 261), upon which the majority relies, Justice Frankfurter said:

“ The restrictions upon searches and seizures were obviously designed for protection against official invasion of privacy and the security of property. They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial. The exclusion [of such evidence] is a means for making effective the protection of privacy.
‘ ‘ Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search * * * that he himself was the victim of an invasion of privacy.”

Two grounds existed for the decision in Jones, neither of which, in my view, is present here.

In J ones, the basic element of the crimes charged was possession and, as the Supreme Court pointed out, the lower courts were requiring the petitioner to assert possession in order to establish standing. Thus, the petitioner was, in effect, being required to confess to the crime in order to challenge the search. As Justice Frankfurter said (362 U. S., supra, pp. 263-264), “ It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government.”

Second, the court in Jones held that the petitioner, who was using a friend’s apartment, had a sufficient interest in the premises to claim a right of privacy therein and that he need not own the apartment to do so.

In the present case, of course, the appellant does not (and apparently cannot) claim that he owned the telephone tapped or the premises searched. Indeed, for all that appears, his primary concern throughout was to avoid any interest or contact with the phone or premises.

As to the other point, I would only comment that if, as the proof seems to indicate, the appellant was no more than a “user” of the phone — in the limited sense that others used it in furtherance of his criminal purposes — this falls short of’ the rationale of Jones. The appellant is not charged with possession. He need not admit the crime in order to challenge the tap and the search. He need only indicate that some right of his to privacy was violated, and this, quite clearly, he is unable to do.

It is, to my mind, quite irrelevant that the appellant is charged with conspiring with the owners of the phone and the possessors of the apartment. The charge resulted from the fruits of the tap — but the fact that the tap revealed appellant’s participation did not ipso facto give appellant standing to challenge either.

The judgment should be affirmed.

Chief Judge Desmond and Judges Van Voorhis, Burke and Bergan concur with Judge Fuld; Judge Keating dissents and votes to affirm in an opinion in which Judge Scileppi concurs.

Determination of the appeal withheld and the case remitted to the District Court, Nassau County, for further proceedings in accordance with the opinion herein.  