Factual Background: As part of an illegal gambling enterprise investigation, the Kings County DA sought eavesdropping warrants for three of Mr. Schneider’s cell phones. Neither the phones, Mr. Schneider, nor the other call participants were present in New York. Based in part on the evidence gathered from these intercepted calls, Mr. Schneider and multiple others were indicted for enterprise corruption, promoting gambling and related crimes.

Mr. Schneider moved to suppress the evidence obtained from the warrants. He argued that the Kings County Supreme Court lacked the authority to issue the eavesdropping warrants because they could not be “executed” in New York given his presence in California. 

Issue Before the Court:

Whether the Kings County Supreme Court had authority to issue eavesdropping warrants for cell phones that were not present in New York.



Holding & Reasoning:  

Yes, it did.

Criminal Procedure Law article 700 authorizes issuance of an eavesdropping warrant by a “justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed.” 700.05(4).

While “executed” is not defined in the statute, the 5-member majority (led by Judge DiFiore) determined that eavesdropping warrants are “executed” in the geographical jurisdiction where the communications are intentionally intercepted by authorized law enforcement officers. Here, because the warrants were “executed” (i.e. the calls were listened to) in Kings County, the Kings County court had jurisdiction.

CAL Observes:

If there is one thing we know for certain about Governor Cuomo’s Court of Appeals, it is that the Court will go out of its way to expand policing powers. Its reflexive response to any question that begs “can the government do this” is an emphatic “yes,” particularly where law enforcement is concerned.

Here, though, they have gone too far (pun intended). The majority essentially gives New York judges nationwide jurisdiction in issuing eavesdropping warrants. So long as the calls will be listened to by law enforcement in the judge’s county, it doesn’t matter if the parties involved in the call are up the street or live on a beach in Kauai. It is not as if New York state law enforcement needed more encouragement in this area. 28% of all state wiretap applications granted are granted by New York state judges. For comparison, SDNY accounts for just 4% of the federal total. 

As Judge Wilson points out in dissent (joined by Judge Rivera), the majority’s conclusion does not follow from the various premises it lays out in support. The majority relies on the federal “listening post” rule despite the absence of the word “execute” in the federal wiretapping statute, and makes policy arguments completely untethered from reality.

The majority appears personally affronted by Judge Wilson’s dissent, and calls it “absurd.” (Apparently judges don’t mind such language when they’re the ones using it?)

But all is not lost…yet. The controversy here was relatively discrete, focused as it was on the definition of the word “execute” in C.P.L. 700.05(4). Constitutional challenges still lie and should be vigorously pursued.