A unanimous opinion issued by the New York Court of Appeals on July 6 marks a significant shift in the wiretapping jurisprudence of New York's highest court. Following the decision in People v. Martello, police may install pen registers -- devices that monitor numbers dialed from a telephone line -- without obtaining a warrant based on probable cause. A "reasonable suspicion" is now sufficient for pen register surveillance to be initiated.
Most pen registers include a regular wiretapping feature to supplement the number recording feature. It was the potential for abuse of these "dual-feature" pen registers that prompted the New York court's 1993 decision in People v. Bialostok, requiring police to obtain wiretapping warrants for their use. The Bialostok decision noted that "it is the warrant requirement, interposing the magistrate's oversight, that provides to citizens appropriate protection against unlawful intrusion."
In its latest ruling, the Court of Appeals drastically limited Bialostok, holding that it did not apply to investigations conducted under Article 705 of the state Criminal Procedure Law, a 1988 amendment that allows police to obtain a court order authorizing pen register surveillance upon a showing of reasonable suspicion. The Court also held that Bialostok does not apply retroactively to investigations completed prior to 1993. Consequently, the Court refused to suppress pen register evidence against Martello gathered by police from 1990 to 1992.
Additional information on electronic surveillance is available at: http://www.epic.org/privacy/wiretap/
Volume 6.11 July 15, 1999
Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.
http://www.epic.org
In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only.
[posted 7/17/99]
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