An Ex Parte Order May Not Serve the Function of a Search Warrant Under the Fourth Amendment To Authorize a Physical Intrusion in Connection With a “Search” for Conversations–People v. Grossman
There was probable cause to believe that defendant Scandifia was implicated in a larceny of jewelry by false pretenses. Pursuant to section 813-a of the New York Code of Criminal Procedure, the Supreme Court in New York County issued an ex parte order authorizing the installation of an eavesdropping device in a service station owned by Scandifia. Shortly thereafter, police broke into the station’s private office and installed a microphone. Conversations were overheard which indicated that defendant Grossman had in his possession two pistols received from Scandifia. An affidavit setting forth these conversations supplied the sole probable cause for a warrant authorizing a search of a car owned by Grossman and seizure of the pistols. On the basis of the evidence thus obtained, the defendants were indicted for illegal possession of weapons and conspiracy. They moved to suppress the tangible product of the. search-the pistols-on the ground that the probable cause for the issuance of the warrant was based on information obtained in violation of their rights under the fourth and fourteenth amendments. Held, motion granted. Under the fourth and fourteenth amendments, no warrant may issue for a search and seizure of mere evidence. Electronic eavesdropping, which is inherently a quest for mere evidence, must be prohibited regardless of judicial authorization, once the protection against unreasonable searches and seizures has been brought into play by the occurrence of a trespass.