
    The People of the State of New York, Respondent, v. Leonard Grossman, Michael Scandifia and Lawrence Pistone, Appellants, et al., Defendant.
    Argued May 31, 1967;
    decided July 7, 1967.
    
      
      Abraham H. Brodsky, Albert C. Aronne and Rubin & Gold for appellants.
    I. Section 813-a of the Code of Criminal Procedure, authorizing' the overhearing and recording of conversations, is unconstitutional if it authorizes a physical invasion upon a constitutionally protected area. (Mapp v. Ohio, 367 U. S. 643; Wong Sun v. United States, 371 U. S. 471; Ker v. California, 374 U. S. 23; Lopez v. United States, 373 U. S. 427; Silverman v. United States, 365 U. S. 505; Lanza v. New York, 370 U. S. 139; Marron v. United States, 275 U. S. 192; Stanford v. Texas, 379 U. S. 476.) II. No statute purporting to authorize the issue of orders for eavesdropping would be constitutional because the Fourth and Fifth Amendments prohibit any attempt to authorize a hunt for incriminating admissions. (United States v. Lefkowits, 285 U. S. 452; Harris v. United States, 331 U. S. 145; Abel v. United States, 362 U. S. 217; Gouled v. United States, 255 U. S. 298; Boyd v. United States, 116 U. S. 616; Hayden v. Warden of Maryland Penitentiary, 363 F. 2d 647.) III. The evidence was properly suppressed. (Sgro v. United States, 287 U. S. 206; People v. Beshany, 43 Misc 2d 521; People v. McCall, 17 N Y 2d 152; People v. Cohen, 18 N Y 2d 650; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; People v. Robinson, 13 N Y 2d 296; People v. Rodrigues, 11 N Y 2d 279; People v. O’Neill, 11 N Y 2d 148.)
    
      Aaron E. Koota, District Attorney (Aaron Nussbaum of counsel), for respondent.
    I. Section 813-a of the Code of Criminal Procedure is fully responsive to the imperatives of reasonableness under the Fourth Amendment. (People v. Berger, 18 N Y 2d 638; People v. McCall, 17 N Y 2d 152; McDonald v. United States, 335 U. S. 451; People v. Chiagles, 237 N. Y. 193; Brinegar v. United States, 338 U. S. 160; On Lee v. United States, 343 U. S. 747; Johnson v. United States, 333 U. S. 10; Giordenello v. United States, 357 U. S. 480; Jones v. United States, 362 U. S. 257; Chapman v. United States, 365 U. S. 610; Ker v. California, 374 U. S. 23.) II. Intangible “ evidence of crime ” may be constitutionally intercepted by valid court order predicated upon “reasonable grounds ”. (Mapp v. Ohio, 367 U. S. 643; Johnson v. United States, 333 U. S. 10; Preston v. United States, 376 U. S. 364; People v. Portelli, 15 N Y 2d 235, 16 N Y 2d 537, 382 U. S. 1009; Schmerber v. California, 384 U. S. 757; Osborn v. United States, 385 U. S. 323; Cooper v. California, 386 U. S. 58; Gouled v. United States, 255 U. S. 298; People v. Carroll, 38 Misc 2d 630; People v. Scandifia, 41 Misc 2d 320; Boyd v. United States, 116 U. S. 616.) III. The eavesdropping order constituted no “general search”. (Harris v. United States, 331 U. S. 145; Ker v. California, 374 U. S. 23; United States v. Barone, 330 F. 2d 543; People v. Loria, 10 N Y 2d 368; People v. Lombardi, 18 A D 2d 177, 13 N Y 2d 1014.) IV. The court-ordered electronic interception at bar met the prescribed constitutional ‘ precondition of lawful electronic surveillance ’ ’, namely, ‘ ‘ the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment.” (Osborn v. United States, 395 U. S. 323; Clinton v. Virginia, 377 U. S. 158; Lopez v. United States, 373 U. S. 427; Carroll v. United States, 267 U. S. 132.) V. The search warrant was validly predicated on probable cause. VI. Appellants Grossman and Pistone lack standing. (Jones v. United States, 362 U. S. 257; Wong Sun v. United States, 371 U. S. 471; Elkins v. United States, 364 U. S. 206; United States v. Beigel, 370 F. 2d 751; People v. Lane, 10 N Y 2d 347; People v. De Leo, 12 N Y 2d 913, 375 U. S. 816; People v. Portelli, 15 N Y 2d 235, 16 N Y 2d 537, 382 U. S. 1009; People v. De Vivo, 23 A D 2d 753.)
   Breitel, J.

Defendants appeal from an order of the Appellate Division reinstating an indictment against them following that court’s reversal of an order granting their motions to suppress. The suppressed evidence consisted of recorded conversátions obtained through the use of electronic devices authorized by an order of eavesdropping pursuant to section 813-a of the Code of Criminal Procedure. Also involved were two pistols obtained as incident to arrests made on the basis of information obtained under the eavesdropping order. The Supreme Court had not only granted the motions to suppress but as a further consequence of the suppression dismissed the indictment. The recent decision in Berger v. New York (388 U. S. 41) by the Supreme Court of the United States held unconstitutional the applicable eavesdropping statute. In consequence, the court is constrained to hold that the evidence obtained in this case, as well as the “fruits” of such evidence (the two pistols), were illegally obtained and they must be suppressed (Mapp v. Ohio, 367 U. S. 643), and the indictment dismissed.

Defendants had been indicted for conspiracy to commit murder and for possession of revolvers. Defendants’ conversations had been overheard and recorded by electronic devices. The conversations revealed a plot to murder witnesses against the defendants (who have been identified as associated with organized crime) in a larceny investigation including the obtaining of suitable weapons sufficient to “ blow big holes in stoolies ” with especially deadly “dum dum” bullets. The electronic devices had been installed as a part of the larceny investigation by the police after obtaining a éourt order under a statute of a kind that for many years had been sustained as valid in the State courts and had never been struck down by the Supreme Court. The police, therefore, were acting in good faith under a statute believed valid by many.

Of course, the statute now having been held invalid, as violative of the Fourth Amendment of the Federal Constitution, it is as if there had never been any valid authority for the police to act as they did. However, it is not the Fourth Amendment which excludes expressly evidence obtained illegally but decisional rules developed by the courts and applied to the States under the holding in Mapp v. Ohio (367 U. S. 643, 648, 650-653, 657-660, supra). These were adopted as a necessary corollary to deter police officials from deliberately violating constitutional rights in order to further their prosecutorial ends with practical impunity. With this policy of deterrence there may no longer be any quarrel. The trouble in eases like this, however, is that the police were acting in good faith under .statutes they had reasonable basis to believe to be valid. Indeed,- they were under a duty to use the statutes until some high court would determine otherwise. Under such circumstance the policy of deterrence of public officials who misconduct themselves is not applicable. If the policy were limited to bad faith situations the results would be completely understandable and logically defensible. Yet the exclusionary rules have been applied without recognition of these differences and the would-be murderers must go free. This is not easy to understand or to explain.

Accordingly, the order of the Appellate Division must be reversed, the motion to suppress granted, and the indictment dismissed.

Keating, J.

(concurring). I concur in reversal under constraint of Berger v. New York (388 U. S. 41).

The Supreme Court in Berger noted the specific defects it found in the present New York statute. It appears that a procedure for the authorization of the use of electronic devices may be formulated, consonant with the provisions of the Fourth Amendment. It is hoped that the Legislature or perhaps the Constitutional Convention will give high priority to adoption of appropriate statutes or constitutional amendments to that effect. If there were any question that such authorization is necessary, it surely is dispelled by the very facts of this case, in which the lives of a number of individuals were apparently -saved as a result of what the police discovered during the court-authorized eavesdropping.

As one who has always been concerned with unreasonable and unwarranted intrusions into the privacy of the home (see, e.g., People v. Williams and Edwards, 20 N Y 2d 388 [decided herewith]; People v. Schnitzler, 18 N Y 2d 457, 461-464 [dissenting opn.], mot. for rearg. den. 19 N Y 2d 633), I am not unaware of the dangers that unrestricted and uncontrolled eavesdropping poses. Such eavesdropping was not authorized by the present statute and would not be authorized under a statute drafted in accordance with the standards enunciated in Berger.

In seeking to limit the extent of governmental intrusion on constitutionally protected rights, we must be aware of the dangers of creating a society in which the individual is secure in his home and person only from governmental intrusion and not from the intrusion of those whose criminal conduct truly threatens the free society in which we live.

Chief Judge Fuld

(concurring). Although I would, in any event, be for reversal (see People v. Berger, 18 N Y 2d 638, 640, dissenting opn.), I cannot join in the court’s opinion since I do not subscribe to certain observations contained in its last paragraph. In view of the Supreme Court’s recent decision holding section 813-a of the Code of Criminal Procedure unconstitiitional “ on its face” (Berger v. New York, 388 U. S. 41, 55, revg. 18 N Y 2d 638), it necessarily follows that evidence procured in this case by means of the electronic eavesdropping device, “authorized” by an order issued pursuant to that statute — as well as the “fruits ” of such evidence — -was illegally obtained and was properly suppressed by Supreme Court Justice Sobel. (See Mapp v. Ohio, 367 U. S. 643; Silverthorne Lbr. Co. v. Umted States, 251 U. S. 385; People v. Rodriguez, 11 N Y 2d 279, 286.) As the Supreme Court declared in the Berger case (388 U. S., at pp. 62-63), “we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement, * * * it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.”

Since there was no evidence incriminating the defendants other than that which was illegally procured, the court had no alternative but to dismiss the indictment against them.

Opinion by Judge Breitel in which Judges Van Voorhis, Burke and Scileppi concur, Judge Keating in a separate opinion in which Judges Van Voorhis, Burke and Scileppi also concur, and Chief Judge Fuld in a separate opinion concurring in result in which Judge Bergan concurs.

Order of Appellate Division reversed and that of the Supreme Court, Kings County, reinstated.  