699 F.

2d 99

UNITED STATES of America, Appellee,

v.
Michael LILLA, Mark Lilla, Robert Lilla, Douglas Pintka,
Raymond C. Colehammer, Christopher Burch, Richard
Strack, Michael Bouck, Frank Benson, and
Peter Santos, Appellants.
Nos. 404, 382-87, 391, 394, 461, Dockets 82-1210, 82-1212,
82-1214, 82-1216, 82-1218, 82-1220, 82-1222,
82-1224, 82-1226, 82-1260.

United States Court of Appeals,

Second Circuit.
Argued Nov. 17, 1982.
Decided Jan. 27, 1983.

Stephen R. Coffey, O'Connell & Aronowitz, P.C., Albany, N.Y. (John R.

Massaroni, Parisi, DeLorenzo, Gordon, Pasquariello & Weiskopf, P.C.,
Schenectady, N.Y., of counsel), for appellants Mark Lilla, Christopher
Burch and Douglas Pintka.
John R. Massaroni, Parisi, DeLorenzo, Gordon, Pasquariello & Weiskopf,
P.C., Schenectady, N.Y. (Stephen R. Coffey, O'Connell & Aronowitz,
P.C., Albany, N.Y., of counsel), for appellant Robert Lilla.
John K. Sharkey, Higgins, Roberts, Beyerl & Coan, P.C., Schenectady,
N.Y., for appellant Michael Bouck.
E. Stewart Jones, Jr., Troy, N.Y. (Leonard W. Krouner, Jeffrey Sherrin,
Albany, N.Y., of counsel), for appellant Raymond Colehammer.
George J. Camino, Schenectady, N.Y., for appellant Michael Lilla.
Paul V. French, Albany, N.Y. (Paul E. Cheeseman, Albany, N.Y., on the
brief, Thomas P. O'Sullivan, Albany, N.Y., of counsel), for appellant
Strack.
Jerome K. Frost, Troy, N.Y., for appellants Benson and Santos.

George Yanthis, Asst. U.S. Atty., Albany, N.Y. (Frederick J. Scullin, Jr.,
U.S. Atty., N.D.N.Y., Albany, N.Y., on the brief), for appellee.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and BONSAL,
District Judge.*
OAKES, Circuit Judge:
This appeal presents the issue whether the affidavit of a New York state
trooper applying for an eavesdropping warrant provided sufficient
information that normal investigative procedures reasonably appeared
unlikely to succeed if tried. We hold that the affidavit was insufficient
under both N.Y.Crim.Proc.Law Secs. 700.15(4) and 700.20(2), (3), as
well as 18 U.S.C. Sec. 2518(1)(c), and, with one exception, reverse the
appellants' convictions, based on guilty pleas with reservations of rights
for certain drug offenses,1 by the United States District Court for the
Northern District of New York, Roger J. Miner, Judge.

I. BACKGROUND
1

The affidavit in question in this case was sworn out by Kenneth T. Cook, a state
trooper whose assignment at the time involved investigation of persons
engaged in the sale and criminal possession of marijuana and other controlled
substances in the Loudonville, New York area. See N.Y.Penal Law Secs.
105.00, 110.00, 220.00, 221.00 (McKinney 1975, 1980, and Supp. 1982-83).
The affidavit revealed that in April, 1980, Cook was told by an informant that
Michael Lilla was selling cocaine and marijuana; the informant indicated that
arrangements to purchase drugs could be made by phone. On April 10, 1980,
Trooper Cook listened in on an extension while the informant spoke with Lilla
at Unified Auto and Equipment Inc., Lilla's place of work. In response to the
informant's inquiry as to the "flake situation," Lilla said that "somebody's going
to bring some up in a week or two." When asked how the "lumbo" was, Lilla
replied, "It's not that great," but further conversation was to the effect that Lilla
would sell "a whole one" for $475.

According to the affidavit, the trooper then accompanied the informant to the
Schenectady garage occupied by Unified Auto and Equipment, was introduced
to Michael Lilla, and paid him $475 for a pound of "weed" or marijuana. The
trooper then discussed purchasing cocaine, and Lilla said that his brother was in
Florida making arrangements to bring "coke" and "grass" to Schenectady that
would be available in a week or two. Lilla then gave the trooper both his home

and work telephone numbers. Analysis conducted by the State Police

laboratory confirmed that the pound of "weed" was marijuana. The trooper's
affidavit pointed out that he had attended a two-week seminar on narcotics
sponsored by the Federal Drug Enforcement Administration and some drug
seminars at the New York State Police Academy and that he had worked as an
undercover officer and in his experience the word "flake" was used to refer to
cocaine and "lumbo" and "weed" to marijuana.
3

Rather surprisingly, the affidavit then goes on to state:

I am able to conclude that this investigation involving the illicit trafficking in

the sale and distribution of controlled substances involves other unknown coconspirators and that no other investigative method exists to determine the
identity of these other persons involved and of obtaining legally sufficient
evidence of their guilt except by wiretapping. I can further state that it is the
common practice of persons engaged in narcotics trafficking to conduct their
business on the telephone only with persons known to them and that they
purposely use the telephone at irregular hours, day and night.

The final paragraph of the affidavit stated:

Although probable cause exists from the facts set forth above to support the
issuance of Arrest and/or Search Warrants, such action at this time would
preclude the obtaining of the seizure of the operation and other persons
involved, a factor in the grade of crime being committed. Since from my police
experience and training in such investigations, I am able to conclude that an
operation such as set forth above, must involve others and that an arrest and or
search at this time would not stop the whole conspiracy operation, but only
move it to continue elsewhere, requiring new leads and information, which
might not be so readily available and no other investigative procedures exist to
determine the identity of other persons participating and conspiring and of
obtaining legally sufficient evidence of the guilt, except by wiretapping.

On the basis of this affidavit, Judge Dominick J. Viscardi, Supreme Court,

Schenectady County, issued an eavesdropping warrant authorizing the
wiretapping of Lilla's home and work phone numbers. An extension of this
original warrant was obtained, as well as another warrant dated May 8, 1980, in
Saratoga County by a trooper assigned to the same unit as Trooper Cook, on
the basis of telephone conversations intercepted under the April 23, 1980,
warrant issued by Judge Viscardi.

II. DISCUSSION
A. The Cook Affidavit
8

The May 8 warrant was granted on the strength of drug related conversations
intercepted under the April 23 warrant. Thus, there is no doubt that if the April
23 warrant falls, so does the May 8 warrant. Chief Judge Munson upheld the
earlier warrant against the defendants' challenge that the supporting affidavit
failed to demonstrate that other investigative procedures had been used or were
unlikely to succeed if tried, stating that "marginally sufficient facts were
presented to justify a reasonable belief that normal investigative measures
would be unavailing." United States v. Lilla, 534 F.Supp. 1247, 1260
(N.D.N.Y.1982). In reaching this conclusion, Judge Munson stated that
common sense would suggest that Michael Lilla's operation involved several
individuals, one of whom was in Florida supplying Lilla's brother with cocaine.
While we agree with this observation, we do not think that it follows that the
statutory requirement of exhausting other investigative procedures was
complied with, or even said to have been complied with.

Judge Munson held that the validity of the warrant must be measured by New
York law. For practical purposes the federal and New York statutory
requirements are the same.2 Both require a showing that investigative
procedures less intrusive than a wiretap have been tried or are unlikely to
succeed if tried. We have previously cited the parallel provisions together, e.g.,
United States v. Fury, 554 F.2d 522, 529 n. 6 (2d Cir.1977), cert. denied, 436
U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978), and cited alternatively federal
and state cases. Id. at 530. New York's highest court has held that the New
York statute was designed to harmonize " 'state standards for court authorized
eavesdropping warrants with federal standards,' " People v. McGrath, 46
N.Y.2d 12, 26, 385 N.E.2d 541, 547, 412 N.Y.S.2d 801, 807 (1978) (quoting
Governor's Memorandum, L. 1969, ch. 1147, N.Y.Legis.Ann. 586 (1969)), and
we discern no difference between the federal and state case law relating to this
requirement.3

10

The Supreme Court has told us that the requirement is "simply designed to
assure that wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime," United States v.
Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974),
and while traditional surveillance techniques need not be exhausted first if they
are "impractical" or costly and inconvenient, United States v. Robertson, 504
F.2d 289, 293 (5th Cir.1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43
L.Ed.2d 778 (1975), nevertheless Congress--and, we may add, the New York

legislature-11
evinced
the clear intent to make doubly sure that the statutory authority be used with
restraint .... These [wiretap] procedures were not to be routinely employed as the
initial step in criminal investigation. Rather, the applicant must state and the court
must find that normal investigative procedures have been tried and failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous.
12

United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d
341 (1974). To this end, both the New York and the federal statute require a
"full and complete statement" explaining whether other investigative
procedures have been tried and have failed, or appear "unlikely to succeed" or
are "too dangerous." Although the required showing is to "be tested in a
practical and commonsense fashion," S.Rep. No. 1097, 90th Cong., 2d Sess.
101, reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2190; People v.
Versace, 73 A.D.2d 304, 307, 426 N.Y.S.2d 61, 64 (App.Div.1980), an
affidavit offered in support of a wiretap warrant must provide some basis for
concluding that less intrusive investigative procedures are not feasible.

13

Previous cases from our own court show the care taken, even when wiretap
warrants have been upheld, to ensure that normal investigative procedures have
been tried or at least considered. For example, in United States v. Hinton, 543
F.2d 1002 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589
(1976), a case involving a major New York City drug conspiracy, ongoing
nonwiretap surveillance had indicated that one of the defendants was likely
involved in an expansive narcotics operation. 4 The issuance of a wiretap
warrant was upheld on the ground that "normal investigative techniques had
become increasingly unsuccessful." Id. at 1011. Similarly, in United States v.
Fury, 554 F.2d at 530, the supporting affidavit set forth that on thirteen specific
dates normal investigative techniques had been attempted but the subjects were
"difficult to 'tail' because they were 'very careful and ... constantly changing
routes.' " United States v. Vazquez, 605 F.2d 1269 (2d Cir.), cert. denied, 444
U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979), which involved a New Jersey
statutory provision virtually identical to the New York and the federal
provisions, illustrates the sort of investigative procedures that might be utilized
before resorting to wiretapping. 5 In Vazquez the prosecutor's office had
interviewed informants, had conducted physical surveillance, and had checked
bank, telephone, motor vehicle, utility, and police records. Id. at 1282. Finally,
In United States v. Martino, 664 F.2d 860, 868 (2d Cir.1981), cert. denied, --U.S. ----, 102 S.Ct. 2020, 72 L.Ed.2d 474 (U.S.1982), the affidavit described
attempts to have a confidential informant introduce an undercover agent to the
defendant in hopes that the agent might ferret out the identity of his sources, but

the defendant spurned the agent and demanded that he leave the vicinity. As in
Fury, attempts to "tail" the defendant proved futile.
14

The New York cases are quite to the same effect. Thus, where the location of
the subjects of the investigation precludes the use of informants or nonwiretap
surveillance, see People v. Penna, 53 A.D.2d 941, 942, 385 N.Y.S.2d 400, 402
(App.Div.1976) (isolated dwelling in extremely rural setting), wiretap warrants
have been upheld. Wiretaps have also been approved where the police have
attempted and failed to infiltrate a criminal conspiracy involving individuals
with prior records who were "careful and evasive" following the unsuccessful
use of search warrants, People v. Versace, 73 A.D.2d at 308, 426 N.Y.S.2d at
64, and where the nature of the offense is such that only electronic surveillance
can produce the evidence necessary for conviction. See People v. Teicher, 52
N.Y.2d 638, 655-56, 422 N.E.2d 506, 515, 439 N.Y.S.2d 846, 855 (1981)
(videoelectronic surveillance of dentist suspected of sexually abusing female
patients while they were heavily sedated upheld). Wiretap warrants have been
invalidated, however, where the record indicated that other procedures might
have been used successfully. For example, in People v. Brenes, 53 A.D.2d 78,
80, 385 N.Y.S.2d 530, 531-32 (App.Div.1976), aff'd, 42 N.Y.2d 41, 364 N.E.2d
1322, 396 N.Y.S.2d 629 (1977), it was held that the State failed to establish
that normal investigative procedures were unavailing where, as here, informers
and undercover operatives had access to the building and were able to observe
the comings and goings of suspected couriers. In contrast to those New York
cases and cases from our own court where wiretap warrants have been upheld,
in this case, as in Brenes, the "use of the wiretap was merely a useful additional
tool" and therefore "should never have been authorized." 53 A.D.2d at 80, 385
N.Y.S.2d at 532.

15

Neither the New York nor the federal statute requires that any particular
investigative procedures be exhausted before a wiretap may be authorized.
Wiretaps are "neither a routine initial step nor an absolute last resort." Note,
The United States Courts of Appeals: 1975-76 Term Criminal Law and
Procedure, 65 Geo.L.J. 209, 247 (1976). The requirement of a "full and
complete statement" regarding procedures attempted or considered prior to the
application for a wiretap serves both to underscore the desirability of using less
intrusive procedures and to provide courts with some indication of whether any
efforts were made to avoid needless invasion of privacy. Like other courts, we
reject generalized and conclusory statements that other investigative procedures
would prove unsuccessful. United States v. DiMuro, 540 F.2d 503, 510-11 (1st
Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977);
United States v. Feldman, 535 F.2d 1175, 1178-79 (9th Cir.), cert. denied, 429
U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Vento, 533

F.2d 838, 849-50 (3d Cir.1976); United States v. Kalustian, 529 F.2d 585, 58990 (9th Cir.1975); see also United States v. Williams, 188 U.S.App.D.C. 315,
580 F.2d 578, 589, cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127
(1978) (affiant's conclusion as to the need for wiretap upheld when read in
conjunction with other portion of affidavit containing "detailed descriptions of
the investigative events" attempted prior to wiretap request).
16

The record in this case does not support the conclusion that other investigative
procedures were either unlikely to succeed or were too dangerous to use. If
anything, the record establishes the contrary proposition: the normal
investigative procedures that were used were successful. Trooper Cook was
able, through his informant, to "make a buy" from Michael Lilla and was told
that Lilla's brother was in Florida working on a cocaine and marijuana deal.
Lilla was apparently not apprehensive about dealing with Cook; he told Cook to
call a week or so after the initial marijuana purchase to check on the status of
the cocaine and marijuana that was to be sent up from Florida. Yet the affidavit
does not reveal what, if any, investigative techniques were attempted prior to
the wiretap request. Instead, the affidavit merely asserted that "no other
investigative method exists to determine the identity" of individuals who might
have been involved with Lilla. The affidavit fails to specify the facts upon
which Cook based this conclusion; there is no indication why simple
surveillance of Lilla's place of work or his home would not have been useful.
The affidavit does not enlighten us as to why this narcotics case presented
problems different from any other small-time narcotics case; if anything, Lilla
operated more openly than most and with less care in terms of evading
detection. In short, we agree with counsel at argument who stated that the only
useful purpose that might be served by the trooper's affidavit in this case is as
an exhibit at a police training academy of how not to conform to the federal and
state statutory requirements.

17

The Government argues that physical surveillance of the auto body shop where
Lilla worked would have been unavailing because legitimate customers as well
as drug purchasers would come to call. But the drug-related customers at the
auto body shop would presumably have no interaction with the shop concerning
their cars, a matter that might have been easily detected by simple surveillance
of those who visit the shop or through examination of the shop's business
records. The Government's argument that this was a "far flung ... conspiracy
involving numerous unknown persons" whose identity could be discovered
only through wiretapping simply does not square with common sense.6 We see
no reason why surveillance of Michael Lilla or the use of informants could not
have yielded this information. The affidavit supporting the application for the
wiretap does nothing to allay our fears that the State in this case relied on

wiretapping as a substitute for standard investigative procedures, a result that

both the New York and the federal statutes are designed to avoid.7 The
statutory requirements are not so lightly to be regarded.
B. Michael Lilla's Conviction
18

Lilla, who sold Trooper Cook a pound of marijuana before the April 23 warrant
was issued, argues on appeal that Judge Munson erred in denying a pretrial
request for disclosure of, inter alia, the identity of Trooper Cook's informant.
We find no error in this ruling. The defendant bears the burden of establishing
the need for disclosure, see Socialist Workers Party v. Attorney General, 565
F.2d 19, 23 (2d Cir.1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57
L.Ed.2d 1129 (1978), and this requires some demonstration that in the absence
of such disclosure the defendant will be denied a fair trial. See Roviaro v.
United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957).
Whether disclosure is appropriate is a matter left in the first instance to the
district court's discretion. See, e.g., United States v. Turbide, 558 F.2d 1053,
1060-61 (2d Cir.), cert. denied, 434 U.S. 934, 98 S.Ct. 421, 54 L.Ed.2d 293
(1977); United States v. Soles, 482 F.2d 105, 108-09 (2d Cir.), cert. denied, 414
U.S. 1027, 94 S.Ct. 455, 38 L.Ed.2d 319 (1973). Lilla made no showing to the
trial court--and presents no argument on appeal--suggesting that denial of the
disclosure request impaired his ability to prepare a defense. We note that Judge
Munson did conduct an in camera review of government materials relating to
the informant, an approach we have approved in the past as a "highly
appropriate and useful means of dealing with claims of governmental
privilege." Socialist Workers Party, 565 F.2d at 23, quoting Kerr v. United
States District Court, 426 U.S. 394, 406, 96 S.Ct. 2119, 2125, 48 L.Ed.2d 725
(1976). Lilla's final claim--that his sentence of one year and one day is
excessive--is without merit.

19

Judgment reversed in part, affirmed in part.

Of the United States District Court for the Southern District of New York,
sitting by designation

The defendants' motion to suppress evidence seized as a result of the

eavesdropping warrants and extensions was denied by the United States
District Court for the Northern District of New York, Howard G. Munson,
Chief Judge. United States v. Lilla, 534 F.Supp. 1247 (N.D.N.Y.1982). The
defendants then entered various guilty pleas before Judge Miner, but reserved
their rights to appeal from Chief Judge Munson's order. Defendants Mark and

Robert Lilla received sentences of six years and fines of $10,000 for conspiring
to violate 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute a
controlled substance); defendants Raymond Colehammer, Richard Strack,
Douglas Pintka, Christopher Burch, Frank Benson, Peter Santos, and Michael
Bouck pleaded guilty to violations of 21 U.S.C. Sec. 843(b) (use of
communication facility to commit or aid in the commission of a crime under
Chapter 13 of Title 21). All of the defendants except Bouck received prison
sentences and fines for the Sec. 843(b) violations. Michael Lilla pleaded guilty
to a charge of violating 21 U.S.C. Sec. 841(a)(1) (possession with intent to
distribute a controlled substance) based on his sale of marijuana to a state
trooper posing as a drug purchaser and received a one year and one day
sentence and a $2,000 fine
2

18 U.S.C. Sec. 2518 (1976 & Supp. V 1981) provides that:

(1) Each application for an order authorizing or approving the interception of a
wire or oral communication under this chapter shall be made in writing upon
oath or affirmation to a judge of competent jurisdiction and shall state the
applicant's authority to make such application. Each application shall include
the following information:
....
(c) a full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous....
N.Y.Crim.Proc.Law Sec. 700.15 (McKinney 1971) provides that:
An eavesdropping warrant may issue only:

Upon an appropriate application made in conformity with this article; and

....

Upon a showing that normal investigative procedures have been tried and have
failed, or reasonably appear to be unlikely to succeed if tried, or to be too
dangerous to employ
N.Y.Crim.Proc.Law Sec. 700.20 (McKinney 1971) provides that:

An ex parte application for an eavesdropping warrant must be made to a justice

in writing, and must be subscribed and sworn to by an applicant

The application must contain:

....
(d) A full and complete statement of facts establishing that normal investigative
procedures have been tried and have failed or reasonably appear to be unlikely
to succeed if tried or to be too dangerous to employ, to obtain the evidence
sought....

We held in United States v. Sotomayor, 592 F.2d 1219, 1225 (2d Cir.), cert.
denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979), that failure to
comply with state statutory requirements would not preclude admissibility in a
federal proceeding if the requirements, like those governing sealing, are
"essentially evidentiary in character." Sotomayor suggested, however, that more
stringent state requirements would control if they were designed to protect an
individual's right of privacy. Id. The requirement at issue here is obviously
designed to protect privacy. Thus, if the New York statute held state authorities
to a higher standard of "exhaustion" than the federal statute, Sotomayor would
suggest that the validity of the wiretap warrant must be measured with
reference to state law

Simple surveillance of the apartment used in the Hinton case revealed that
several individuals later named as defendants were observed "frequently
entering and leaving" an apartment used as a drug mill "carrying paper bags,
attache cases, and suitcases." 543 F.2d 1002, 1006 (2d Cir.), cert. denied, 429
U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). It was only after surveillance
efforts fanned outward to encompass the movements of the defendants and their
accomplices that a wiretap warrant was approved. In this case there was
apparently no surveillance of Lilla's workplace or residence after the initial
marijuana buy

The legislative history suggests that "[n]ormal investigative procedure would

include, for example, standard visual or aural surveillance ... general
questioning or interrogation under an immunity grant, use of regular search
warrants, and the infiltration of conspiratorial groups by undercover agents or
informants." S.Rep. No. 1097, 90th Cong., 2d Sess. 101, reprinted in 1968
U.S.Code Cong. & Ad.News 2112, 2190

The individuals involved in this conspiracy, "far flung" or otherwise, would

obviously remain "unknown" until some sort of investigative efforts were
attempted. This case appeared to involve a relatively small number of
individuals dealing with Michael Lilla and perhaps with each other; ultimately,
drugs and money were exchanged in transactions that might have been
observed through simple surveillance. If the crimes in question were planned

and consummated only by means of telephone, e.g., if Lilla used the phone as a
broker to bring together other buyers and sellers with whom he never had any
other contact, the argument that wiretapping was the only option might seem
more persuasive. But even in this unlikely case, pen registers would be less
intrusive than wiretapping. See Smith v. Maryland, 442 U.S. 735, 745-46, 99
S.Ct. 2577, 2582-83, 61 L.Ed.2d 220 (1979) (no warrant required for
installation of pen register)
7

The government seems to argue that wiretapping is appropriate because drug

dealers often use the telephone at "irregular" or "unusual" hours. But this
observation is germane to most forms of criminal activity that involve more
than one willing participant and require some degree of planning. Without
question, it would be in some sense more efficient to wiretap whenever a
telephone was used to facilitate the commission of a crime. But the statutory
requirement that other investigative procedures be exhausted before
wiretapping reflects a congressional judgment that the cost of such efficiency in
terms of privacy interests is too high. See United States v. Kalustian, 529 F.2d
585, 589 (9th Cir.1975)