NY, Bronx Co.: Wiretap minimization requirements are founded on the Fourth Amendment protection against unreasonable searches and of particularity

Wiretap minimization requirements are founded on the Fourth Amendment protection against unreasonable searches and of particularity. This is the case against NYPD officers accused of ticket fixing. People v. Anthony, 2015 NY Slip Op 25003, 2015 N.Y. Misc. LEXIS 44 (Bronx Co. January 12, 2015)*:

The minimization requirement has its underpinnings in the Fourth Amendment’s prohibition of unreasonable searches and seizures and its mandate that search warrants contain provisions particularly describing the place to be searched and the persons or things to be seized. People v. Floyd, 41 NY2d 245, 249 (1976), citing Berger v. New York, 388 U.S. 41 (1967). To satisfy these constitutional concerns, C.P.L. § 700.30(7) requires that an eavesdropping warrant contain a provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping under Article 700. Minimization has been defined as a good faith and reasonable effort to keep the number of non-pertinent calls intercepted to the smallest practicable number. Id. at 250. The reasonableness of the People’s efforts requires a case by case analysis of the particular facts surrounding the interception. Scott v. United States, 436 U.S. 128, 137-39 (1978). Courts have identified the following factors that bear on the analysis of whether the People’s efforts to minimize were reasonable: 1) the scope of the investigation; 2) the duration and nature of the conversations; 3) the character and sophistication of the targets of the investigation; 4) the extent of official supervision of the surveillance; and 5) the possibility and practicality of determining, contemporaneously with their interception, whether particular conversations are in fact pertinent to the objectives of the investigation. See People v. Brenes, 42 NY2d 41, 46-7 (1977). On a motion to suppress eavesdropping evidence, the burden lies with the People to go forward to demonstrate the legality of the police conduct in the first instance, but it is the moving defendant who shoulders the burden of persuasion. People v. DiStefano, 38 NY2d 640, 652 (1976) [*4] .

With these legal principles in mind, and after an examination of the copious materials submitted in connection with the motion,3 the Court is satisfied that the People have demonstrated that appropriate procedures were established to minimize interception of non-pertinent communications, that a conscientious effort was made to follow such procedures, and that defendants have failed to show that there was an unreasonable interception of a substantial number of non-pertinent communications.