Petition for Writ of Certiorari — Turetsky v. New York

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SUPPFME CO;

MICHAEL RUUAK JR.

Supreme Court of the United States

October Term, 1973

— r 4 —— ameeED

No. 73- 1 8 6 6

FRED TURETSKY,

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JUN 12 197

Petitioner,

US.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE NEW

YORK SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

tilo2) LUTZ APPELLATE PRINTERS, INC.

Lew and Financia! Printing

South River, N.J. New York, N.Y. Philacelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 865-6377 (215) 563-5587 (202) 783-7288

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One.

— A, Mec AN HORE IS INE AS ANOLE aor re ok SONNE

TABLE OF CONTENTS

Page

, I a ee 1

a eee ee ee eee Pe ae 2

Sa Tes Hae ESE aso Rei ar Gh Oe ee ERE 2

EI a ee Se 2

Constitutional and Statutory Provisions Involved ... . 3

5 EGRESS es EZ Se we by Pau A Pf Ee et ee 4

Argument:

Point:

I. Police law enforcement officers equipped a

cooperating witness with a clandestine

recording device in an effort to obtain a

recording of a conversation with petitioner

Turetsky which would be incriminating and

could thus be used against him at a criminal

trial. No court order was obtained, nor was

petitioner made aware of the existence of this

device. Petitioner alleges that United States v.

White, 401 U.S. 745 does not and did not

authorize this invasion of privacy. ...... 8

II. The prosecution used a surreptitious tape

recorder in an effort to entrap petitioner,

SD REGRET NRRL RD 1 ERE SOE RED Eat eS i

u

Contents

Page

who was a police sergeant, by engaging him in

a conversation concerning an alleged bribe. . 17

Ill. The use of electronic surveillance cannot be

dismissed as de minimus since both the Court

and the prosecutor emphasized it in the

charge and the summation respectively. The

Court removed from the jury’s consideration

the important factual issue as to whether a

tape recorder had even been employed, by

instructing them that they must assume it

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TABLE OF CITATIONS

Cases Cited:

Berger v. New York, 388 U.S.41 .......... .12, 15

Desist v. United States, 394 U.S. 244 ........... 13

Gelbard v. United States, 408 U.S.41 .......... 15

Hoffa v. United States, (1966) 385 U.S.293 ...... 12

Holmes v. Burr, 9 Cir. 1973, __F.2d___, 14 Cr. L. 2060

ea igine ete al a iatg gh anel ea are Sane. 9,11, 13, 14

Katz v. United States, 389 U.S.347 ......... ‘

ia eta etaed te a aes 2. 8, 9, 11, 12, 13, 14, 15

ul

Contents

Page

Lee v. Florida, (1968) 392 U.S.378 ........--. 12, 16

Lewis v. United States, (1966) 385 U.S. gas 12

Linkletter v. Walker, 381 U.S.618 ....---+-+++-> 9

Lopez v. United States, 373 in 2. , sea eecare 8,11, 12

Mapp v. Ohio, 367 U.S. 643... -- + +e eres 9,12

On Lee v. United States, 343 U.S. 747 ....- - 8,11, 12, 13

Osborn v. United States, 385 U.S. 323 .......-- 12, 16

Rathbun v. United States, (1957) 355 U.'S.107 ..... 12

Russell v. United States, 411 U.S.423 .......-.- 16, 17

Schwartz v. Texas, (1952) 344 U.S.199 ......---- 12

Silverman v. United States, (1961) 365 U.S.505 .... 12

Sherman v. United States, 356 U.'S.369 .......--. 18

United States v. White, 401 U.S.745 ....-.-+---

ee ee ee ee 2, 8, 9, 12, 13, 14, 15, 16

iv

Contents

Page

; ‘Statutes Cited:

| Omnibus Crime Control and Safe Street Acts of 1968,

: IS eae as ko ey BERG 6 ak ae wo 3, 16

| ae er a a eee 12

SOUR. Gee SGGMR) ow. eee es 2

i ae ae ee 16

BS UDA ee BOI) tee 3

18 U.S.C. Section 2518(8)(d)(3) ............. 3

18 U.S.C. Section 2518(10)(iii) .............. 3

18 U.S.C. Section 2518(10)(a)(ii) .. 2... 2... ee, 3

N.Y. Criminal Procedure Law:

co es er 3, 16

I ns ee ie ae S 3, 16

ee to dk we oe ae we 16

New York Penal Law:

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INE Shih 078 ht gee ried, ev oe ee ao 3

PI Se Wd onal ghoul ig yw a eee ko 3

Tite? aw neat

u

Contents

Page

United States Constitution Cited:

Fourth Amendment ......- - 3, 9,10, 13, 14, 16, 17, 18

Fifth Amendment ....-----**s*eee°° 3, 18,19

Sixth Amendment .....-----*******%° . 3,18

Fourteenth Amendment .. = ee ee 10

Rule Cited:

Exclusionary Rule ....---- eee ere terrte 10

Other Authority Cited:

ee. Judicial Control of Informants, Spies,

Stoolpigeons and Agents Provocateurs, 60 Yale

L.J. 1091, 1111 (1951)... --- 2 essere’ 17

APPENDIX

Order of Appellate Division Dated November 9,1971 . la

Certificate Denying Leave Dated December 8,1971 .. 3a

Certificate Denying Leave Dated March 14, ) a

PRL ELITES TEBE AIG AD ENG

RETIRE ae

oe

In The

Supreme Court of the Hnited States

October Term 1973

>

No. 73-

FRED TURETSKY,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE NEW

YORE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT

STATEMENT

Petitioner, Fred Turetsky petitions this Court and prays that

it grant a writ of certiorari to review the order of the Appellate

Division, First Department, rendered the ninth day of November,

1971, affirming the judgment of the Supreme Court, New York

County rendered the seventh day of January, 1970, convicting

petitioner of bribe receiving (New York Penal Law §200.10); petit

larceny; and attempted petit larceny, after trial. The Court of

Appeals of the State of New York denied leave to appeal on the

eighth day of December, 1971, but a rehearing and reconsideration

of the application for leave to appeal was denied on the fourteenth

day of March, 1974.

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OPINION BELOW

The Appellate Division, First Department, rendered no

opinion in unanimously affirming the judgment of conviction. The

Court of Appeals did not render an opinion in denying leave to

appeal.

JURISDICTION

The jurisdiction of this Court is predicated upon 28 U.S.C.

Section 1257(3). A motion for leave to appeal to the Court of

Appeals was denied on March 14, 1974 upon reargument and

reconsideration. Copies of the orders in question are annexed to

the petition.

QUESTIONS PRESENTED

1. Whether this Court’s plurality opinion in United States v.

White, 401 U.S. 745, which concerned a case predating Karz v.

United States, 389 U.S. 347, was intended to permit secret

recordings of conversations betwcen a Government agent and a

defendant merely because the Government agent consented to the

electronic surveillance?

2. Whether United States v. White, 401 U.S. 745, should be

limited to the peculiar circumstances of that particular case and

whether this Court should now declare that recordings of

conversations shall be inadmissible without a court order

authorizing electronic surveillance, unless both parties consent to

the electronic surveillance?

3. Whether this Court should now rule that court orders or

warrants are necessary to conduct electronic surveillance of any

prospective defendant by law enforcement authorities, even when

one party to the conversation has consented to the recording?

4. Whether petitioner was denied a fair trial when the Court

invaded the province of the jury by expressing an opinion as to the

importance of a fact issue and when the District Attorney trying

the case made inflammatory statements?

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourth. Fifth, and Sixth Amendments of the United

States Constitution are involved herein as well as Sections 200.10,

155, and 110 of the Penal Lawand Sections 700.30(5)(7), 700.35(1),

and 700.50(3)(4) of the Criminal Procedure Law. In addition, 18

U.S.C. Section 2518(5); 2518(8)(d)(3); 2518(10)(ili); and

2518(10)(a)(ii) are involved herein. Other authorities involved are

the Omnibus Crime Control and Safe Streets Act of 1968, Title III.

5. Whether petitioner was entrapped by the surreptitious

electronic recording of a conversation between Turetsky and a

police informer?

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THE FACTS

The petitioner herein, a career New York City Police

Sergeant, attached to the New York City Police Department, was

indicted under three counts which charged bribery by Turetsky

from one Jay Shaw. for the alleged consideration of agreeing to

accept $160 so that Shaw would not receive complaints or

summonses for violations in connection with remodeling work he

was doing in the Borough of Manhattan. In addition, the

indictment charged that petitioner stole” $60 from Shaw and also

attempted to steal $100 from him (SM42-43)'.

The facts of the case are relevant only to the point of

highlighting the Constitutional issues involved here.

The complainant, Jay Shaw, was supervising a renovation of a

building at 234 East 18th Street in the Borough of Manhattan and

testified that on June 2, 1969, during these renovations, the

petitioner approached him and sought to obtain certain moneys, in

consideration of which Shaw would not be bothered with tickets or

summonses for double-parked trucks, nor for any other violations

caused by the work that was in progress (SM57-63).

Shaw notified the police and was ccached by law enforcement

authorities as to what to do in any future conversation with the

petitioner. In this connection, a recording device was used as well

as certain marked money (SM64-65, SM458). The tape recorder

was set up on Shaw’s desk and was operating when petitioner came

in.

1. Numerals in parentheses preceded by the prefix “SM” refer to pages of the official

court reporter's minutes of the trial.

5

Shaw testified that he agreed to pay $160 to the petitioner

during the period of construction and actually gave Turetsky $60,

promising to give another sum about August Ist when the job

would be finished (SM69-76).

Petitioner was then followed to a patrol car and was

subsequently arrested (SM76, SM257, SM331, SM465, SM618-

622; SM663).

Officer Fitzpatrick, who was present when the petitioner was

arrested, stated that he did not find any money on Turetsky’s

person, but the complainant Shaw testified that he saw Turetsky

throw the money to the ground (SM70, SM465, SM470).

A test was conducted on Turetsky’s hands for the presenceof

fluorescent powder which allegedly had been dusted on the money

which Shaw said he had handed to Turetsky. The test, however,

proved negative (SM475-477).

The prosecution played the tape recording which had been

obtained under the aegisofthe police, withtheconsentof Shaw, but

without the knowledge or consent of Turetsky.

In his defense, the petitioner called several witnesses,

including Patrolman Morris of the 13th Precinct, who testified that

he was petitioner’s driver on June 2, 1969 and that during that

morning he did not take Turetsky to the building in question.

Patrolman Grabowsky testified that on June 3, 1969, he and

Patrolman Gilbride drove Sergeant Turetsky to the building at 234

East 18th Street. When petitioner came out of the building and re-

entered the police car, Grabowsky recalled that Captain

Fitzpatrick arrested petitioner. Grabowsky further declared that

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he did not see Turetsky put his hands into his pockets or throw any

money to the ground, nor did he see anyone bend down and pick

up any money (SM608, SM618-621, SM623-625).

Patrolman Gilbride also testified for the petitioner and

substantially corroborated the testimony of Grabowsky. Gilbride

also stated that he heard no mention of any marked money,

powdered money, or any tape recording machine (SM666,

SM679).

Several other officers testified as well and each declared that

they had not seen or heard any tape recording. Moreover, Sergeant

Zgombic stated that petitioner had not refused to submit to any

ultraviolet ray test and that at the precinct he had not seen any

marked money, tapes, or tape recorders (SM749-751)2.

In summation the prosecution relied to a great extent upon the

tape recording, stating, inter alia:

“I submit to you, ladies and gentlemen, that we have

proven the guilt of this defendant of the charge beyond all

doubt. And we are able to do that because we have here this

tape, which is a transcription of a conversation which took

place between this defendant and the complainant, Mr.

Shaw” (SM1068).

Shortly before concluding his address to the jury, the District

Attorney said to them the following:

2. It must be noted, however, that at the trial there was an issue as to the identity of the

voices on the tape recording since petitioner never admitted his voice was on that tape

recording.

SS ee

“Now, I suggest to you ladies and gentlemen that a lot of

people are interested in your verdict. There are fifteen

sergeants mentioned on the tape. They are not on trial. But

they are interested in the verdict. So is the whole Police

Department” (SM1069).

Defense counsel objected to this statement on the ground that

it was “highly prejudicial and improper” (SM1069). His objection

was overruled (SM1069).

The Court, in its charge, also informed the jury of the tape

recorder (SM1088), stating:

“There was other testimony that no one was seen bringing

into the precinct the attache case, tape recorder, ot satchel

with the ultraviolet equipment. However, these items were

evidently there as they were used.” (Emphasis supplied.)

After the Court had concluded the charge, counsel for the

defendant moved for a mistrial because of “the Court’s. . forcing

its opinion as to the guilt or innocence of the defendant on the jury”

(SM1116).

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ARGUMENT

POINT I

Police law. enforcement officers equipped a cooperating

witness with a clandestine recording device in an effort to obtain a

recording of a conversation with petitioner Turetsky which would

be incriminating and could thus be used against him at a criminal

trial. No court order was obtained, nor was petitioner made aware

of the existence of this device. Petitioner alleges that United States

v. White, 401 U.S. 745 does not and did not authorize this invasion

of privacy.

as Tie

The prosecution elected to use electronic surveillance in this

case in an effort to corroborate the statements of the sole witness

against petitioner, namely Jay Shaw.

The use of electronic surveillance where only one party

consents to the eavesdropping has been employed very widely since

the Supreme Court’s decision in United States v. White, 401 U.S.

745. It, of course, had also been used previous thereto, but many

law enforcement agencies apparently look upon White as

authorization or carte blanche to use this method of electronic

surveillance. .

It is respectfully contended that White wasa plurality opinion

of the Supreme Court of the United States and concerned a case

which predated Katz v. United States, 389 U.S. 347, 364.

Just a mere plurality of the Supreme Court voted to save the

“misplaced confidence” doctrine of On Lee v. United States, 343

U.S. 747 and Lopez v. United States, 373 U.S. 427.

9

This “misplaced confidence” exception to the normal warrant

requirement is inconsistent with the “reasonable expectation of

privacy” standard of Katz v. United States, 389 U.S. 347, and we

maintain should therefore be abolished. (See Holmes v. Burr, 9

Cir. 1973. F.2d 14 Cr.L. 2060.)

It will be recalled that Justice Black’s cryptic concurrence in

United States v. White, supra, mentioned the fact that it did not

apply since this was pre- Katz eavesdropping.

Justice Black cast the “swing”vote in United States v. Whiteand

his concurrence in the judgment of the Court was for the reason set

forth in his dissent in Katz v. United States, 389 U.S. 347, 364. He,

however, also noted “his adherence” to “his views expressed in

Linkletter v. Walker, 381 U.S. 618.” In Linkletter, Mr. Justice

Black maintained that Mapp v. Ohio, 367 U.S. 643, should have

been applied retroactively.

It must be borne in mind that in his concurrence in United

States v. White, Justice Black reasserted the position which he had

taken in Katz namely that electronic surveillance was not within

the ambit of the Fourth Amendment.

In Katz v. United States, however, the Supreme Court made it

very clear that seizure of the spoken word was within the purview

of the Fourth Amendment and, consequently, Black’s concurring

and controlling fifth vote is inapplicable in view of Katz v. United

States.

It is argued that: (1) electronic recording produces more

reliable evidence than human recollection; (2) that law

enforcement authorities need unhampered electronic surveillance

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to protect us from crime; and (3) that the exclusion of evidence

obtained in this way hurts society. These arguments do not hold

up.

Evidence obtained by machine is not necessarily more reliable

than human recollection. A machine has considerable ability to

distort. It focuses on a single element in a total environment and

can yield deceptive results. A recorder captures voices without

facial expressions, gestures, and other subtle details. Nor is a

picture any more accurate. But the reliability argument really is

irrelevant. Evidence obtained by illegal search or seizure is

excluded not because of unreliability, but because of the values its

exclusion protects.

As for the second argument, the Government’s legitimate

interest in detecting and preventing crime must be balanced against

the individual’s freedom from unjustified intrusions. That balance

was struck by the draftsman of the Fourth Amendment when they

required advance authorization of searches and seizures by a

magistrate upon a showing of probable cause.

Rarely articulated but frequently evinced hostility to the

Exclusionary Rule underlies the third argument:

“The case presents some of the most vexing and pressing

problems of our day: What are the constitutional

limitations on governmental electronic intrusions into

privacy? Do the Fourth and Fourteenth Amendments

circumscribe warrantless electronic intrusions as

effectively as they limit corporeal invasions of privacy? Are

the protections of the Fourth and Fourteenth

11

Amendments diluted if the person subjected to the

warrantless electronic intrusion is suspected of a crime?”

(Dissent of Hufstedler, J. in Holmes v. Burr, supra.)

The dissenting opinion in Holmes v. Burr, supra, went-on to

explain the impact of warrantless surveillance:

“The corrosive impact of warrantless participant

monitoring on our sense of security and freedom of

expression is every bit as insidious as electronic

surveillance conducted without the consent of any of the

parties involved. In terms of the individual’s reluctance to

speak freely, no qualitative difference exists between the

danger posed by third party interception and the risk that

his auditor has sanctioned a secret recording of their

conversation... .”

The holding of Olmstead was finally overruled in Kaitz v.

United States. There the Court explained:

“The Fourth Amendment protects people, not places.”

Tucked into Olmstead was a passing reference to the theory

that persons subjected to warrantless electronic interception

volunteer their statements to the Government by their very act of

talking to each other. This theory later emerged as the constructive

consent and assumption of the risk fictions relied on in On Lee v.

United States, supra, 343 U.S. at 753-54 and Lopez v. United

States, supra, 373 U.S. at 439. In Lopez the majority added the

variation that a person talking face-to-face with a known

SNE USL Ay nity

12

Government agent assumes the risk that the agent will be able to

repeat the conversation either by total persona! recall or by a

corroborative recording which in its nature is more reliable than

human recollection. The theme was replayed in a slightly different

key by the plurality on United States v. White.

Using familiar jurisprudential tools, Holmes can _ be

successfully distinguished from every Supreme Court decision

directly bearing on the case other than Katz. Thus, On Lee and

Lopez not only are factually dissimilar but, more importantly,

were based on trespassory concepts discredited by Silverman v.

United States, (1961) 365 U.S. 505; Osborn v. United States, 385

U.S. 323, and Berger v. New York, 388 U.S. 41, and destroyed by

Katz.

Rathbun v. United States, (1957) 355 U.S. 107 dealt with

Governmental eavesdropping by extension telephone without

electronic recording, and the decision was confined to an

interpretation of Section 605 of the 1934 Federal Communications

Act (47 U.S.C. Section 605). Schwartz v. Texas, (1952) 344 U.S.

199 involved facts similar to Rathbun, but the decision was based

on the pre- Mapp authority refusing to apply the exclusionary rule

to state Courts. Schwartz was overturned by Lee v. Florida, (1968)

392 U.S. 378, a post-Mapp case, holding inadmissible under

Section 605 telephone conversations overheard on a party line and

recorded. Lewis v. United States, (1966) 385 U.S. 206 and Hoffa v.

United States, (1966) 385 U.S. 293, like Holmes, concerned the use

of confidants who were secretly Governmental informers, but in

neither case was electronic surveillance employed.

13

The facts in White were closer to those in On Lee than to

Olmstead or Holmes. But of much greater significance, White

necessarily applied pre- Katz law because the electronic surveillance

of White occurred before Katz was decided and Katz had been

earlier held nonretroactive in Desist v. United States, 394 U.S. 244,

United States v. White, is nevertheless important because it reveals

continuing reliance by some of the Justices on the assumption of

the risk doctrine. (See United States v. White, at 754 (White, J.).)

Although the holding in White was based upon the

nonretroactivity of Katz, several of the Justices did express views

on the effect of Katz on participant electronic surveillance. Mr.

Justice White, writing for the Chief Justice and Justices Stewart

and Blackman, suggested that On Lee remained sound law.

Justices Brennan, Douglas, Harlan and Marshall each wrote

separate opinions arguing that the result in On Lee could not

survive Katz. Mr. Justice Black, concurring in the judgment of the

Court, did not address this issue, merely reasserting the position

taken in his Katz dissent that electronic surveillance was not within

the ambit of the Fourth Amendment.

Proponents of the assumption of the risk doctrine, apparently

recognizing the significant intrusion upon an individual’s privacy

caused by participant monitoring do not say that everyone must

anticipate and risk warrantless surveillance; rather, they limit its

application to those who contemplate illegal activity. But never do

these proponents explain how, absent the Fourth Amendment

requirement of antecedent justification before a neutral

magistrate, the sinful can be separated from the saintly without

probing everyone or leaving the selection to the unbridled

discretion of Government agents.

RE LE

14

Adoption of the assumption of the risk theory ultimately rests

on the cynical conclusion that a warrantless search is justified by

what it reveals. |

In the conclusion of her dissenting opinion, Judge Hufstedler,

in Holmes v. Burr, supra, sets forth a cogent argument indicating

how destroying a right protected by the Fourth Amendment

because of distaste for the remedy, ultimately destroys the Fourth

Amendment itself. In 14 Cr.L. 2063, the dissent explained:

“Dissatisfaction with the exclusionary rule as the

predominant remedy for conduct violating the Fourth

Amendment is understandable and defensible. Attacks on

» the constitutional right of privacy as the means of

expressing dissatisfaction with the remedy are

intellectually indefensible and dangerous. A constitutional

right continuously diluted becomes no right. Destroying a

right protected by the Fourth Amendment because. of

distaste for the remedy makes little more sense than

destroying a patient for failure to respond to chosen

medication. If the remedy is wrong, it is time to reexamine

the remedy, not to diminish the right.” (Emphasis added.)

We recognize that this Court has not specifically interpreted

the significance of United States v. White, supra, since. its

promulgation by this Tribunal. Apparently the Court below, as

well as prosecutors, have assumed that invasions of privacy are

perfectly legitimate so long as one party to a conversation consents.

In Katz v. United States, supra, we submit, this Court

indicated’ a contrary sentiment, namely. that the Fourth

Amendment protects people and not places. Moreover, the clear.

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15

thrust of Katz is that the party to whom Kazz placed a call in the

public telephone booih that was “bugged”, could not have

consented to the “bug” which was placed without a warrant.

In Berger v. New York, 388 U.S. 41, this Court recognized that

invasions of privacy by electronic listening devices represents one

of the most dangerous and fearsome incursions upon privacy and

civil liberty.

United States v. White, supra, represents a plurality opinion

only and has never been dealt with by a majority of the Court.

In Gelbard v. United States, 408 U.S. 41, this Court indicated

that a person whu has suffered an invasion of privacy through

illegal methods cannot even be made the subject of a Grand Jury

- subpoena if the purpose is to examine him concerning material

obtained through improper electronic surveillance. We submit that

petitioner herein had every reason to believe that his conversations

with Shaw were not being recorded and were private. Shaw was

obviously playing out a scenario suggested to him by the

authorities and, consequently, elicited conversations designed to

incriminate. There was no free and natural flow of conversation

from the standpoint of Shaw. This was an undoubted invasion of

privacy from the viewpoint of Turetsky who believed the

conversation was private.

We submit that under those circumstances a Court order

should have been obtained before the Government undertook to

equip Shaw with this listening device.

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16

We remind this Tribunal that in Osborn v. United States, 385

U.S. 323 at 330, this Court explained that since District Judges

granted what amounted to a warrant authorizing the use of a

recording device. that this was the only reason for upholding the

invasion of privacy apparent therein. This Court explained:

“There could hardly be a clearer example of ‘the procedure

of antecedent justification before a magistrate that is

central to the Fourth Amendment’ as ‘a precondition of

lawful electronic surveillance’.”

In Russell v. United States, 411 U.S. 423, this Court indicated

that “outrageous” conduct by law enforcement officers or agents

would be dealt with in an appropriate manner.

Similarly, in Lee v. Florida, 392 U.S. 378, this Court made it

clear that barring such improper eavesdropping was the only

effective deterrent to such lawless conduct.

We urge this Court, therefore, to clarify United States v.

White, supra, and rule that a court order is required before any

electronic surveillance, even with the consent of one party, is

conducted under Government auspices, otherwise the evidence

must be suppressed.

We ask this Court to also consider the warrant requirements

of the Omnibus Crime Control and Safe Streets Act of 1968, Title

Ill, and, particularly, Sections 700.30(5)(7) and 700.35(1) and

700.50(3)(4) of the New York Criminal Procedure Law, as well as

18 U.S.C. Section 2518.

17

We would also cite this Court the Fourth Amendment as

indicating the general need for warrants where any invasion of

privacy is involved.

POINT ll

The prosecution used a surreptitious tape recorder in an effort

to entrap petitioner, who was a police sergeant, by engaging him in

a conversation concerning an alleged bribe.

The petitioner maintains that he was the victim of entrapment,

and perhaps of forgery, since he never conceded that his voice was

on the tape recording

“Clearly entrapment is a facet of a broader problem. Along

with illegal search and seizures, wiretapping, false arrest,

illegal detention and the third degree, it is a type of lawless

law enforcement. They all spring from common

motivations. Each is condoned by the sinister sophism that

the end, when dealing with known criminals or the criminal

classes, justifies the employment of illegal means.”

Donnelly, Judicial Control of Informants, Spies,

Stoolpigeons and Agents Provocateurs, 60 Yale L.J. 1091,

1111 (1951).

In Russell v. United States, 411 U.S. 423, this Court indicated

that entrapment is a valid defense unless a predisposition is shown

on the part of the accused. In the case at bar, we submit that there

was no evidence of any predisposition.

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a ree ee ae ee ae eee ae

18

Since an invasion of privacy without a warrant was utilized in

this case, it smacked of improper Governmental action in violation

of the Fourth, Fifth and Sixth Amendments since Shaw was

undoubtedly playing out a scenario as a cooperating agent of law

enforcement.

It may well be that Shaw was, in essence, seeking to bring

charges against a completely innocent police officer (Turetsky)

because the latter was trying to do his duty too diligently. We must

bear in mind that Shaw was the only witness to testify to any

criminality, since the tape recording was not a testimonial

declaration and was merely a repetition of Shaw's sworn

statements. The recordings had no independent testimonial value.

Additionally, the ultraviolet test for the presence of

flourescent powder on Turetsky’s hands proved negative.

In Sherman v. United States, 356 U.S. 369, the concurring

opinion of Justice Frankfurter at 380 aptly explains:

“The courts refuse to convict an entrapped defendant, not

because his conduct falls outside the proscription of the

statute, but because, even if his guilt be admitted, the

methods employed on behalf of the Government to bring

about conviction cannot be countenanced . . .insofar as

they are used as instrumentalities in the administration of

criminal justice, the federal courts have an obligation to set

their face against enforcement of the law by lawless means

or by means that violate rationally vindicated standards of

justice, and to refuse to sustain such methods by

effectuating them.”

RSI Be SOP BSR So oP ae, =

:

19

POINT Ill

The use of electronic surveillance cannot be dismissed as de

minimus since both the Court and the prosecutor emphasized it in

the charge and the summation respectively. The Court removed

from the jury’s consideration the important factual issue as to

whether a tape recorder had even been employed, by instructing

them that they must assume it had.

We have previously quoted certain portions of the summation

of the prosecution which refer to the tape recording which

appeared to be the single most important factor in the mind of the

District Attorney (SM1008, 1069).

The Court in essence removed the question of fact from the

jury as to whether there was or was not a tape recording by, in

effect, charging them that the tape recorder was used.

It must be recognized that a number of police officers stated

that although they were present in or about the scene of the arrest

or at the stationhouse to where petitioner was taken, they did not

see any tape recordings nor tapes. This in effect removed an

essential element from the consideration of the jury, thus depriving

petitioner of a fair trial in violation of the Fifth Amendment.

20

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

s Irving Anolik

Attorney for Petitioner

la

APPENDIX

ORDER OF APPELLATE DIVISION

DATED NOVEMBER 9, 1971

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on November 9, 1971.

Present—

Hon. Louis J. Capozzoli, Justice Presiding

Hon. Arthur Markewich,

Hon. Francis T. Murphy, Jr.,

Hon. Aron Steuer,

Hon. Samuel W. Eager, Justices

The People of the State of New York,

Respondent,

against

Fred Turetsky,

Defendant-Appellant.

An appeal having been taken to this Court by the defendant-

appellant from the judgment of the Supreme Court, New York

County (Baer, J.) rendered on January 7, 1970, convicting him of

Bribe Receiving (Penal Law § 200.10), -Petit Larceny (Penal Law

§155.25) and Attempted Petit Larceny (Penal Law §§110.00,

NS Ee ee ET Te PN ae ee ny oe

4 Sait Nita

4

3

3

a

3

2a

Order

155.25). and said appeal having been argued by Mr. Victor J.

Herwitz. of counsel for the appellant, and by Mr. Paul A. Sobell, of

counsel for the respondent; and due deliberation having been had

thereon.

It is unanimously ordered and adjudged that the judgment so

appealed from be and the same is hereby, in all things, affirmed.

ENTER:

HYMAN W. GAMSO

Clerk.

3a

CERTIFICATE DENYING LEAVE DATED

DECEMBER 8, 1971

STATE OF NEW YORK

COURT OF APPEALS

Before: Hon. John F. Scileppi, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK,

against ,

FRED TURETSKY,

Appellant.

re

I, JOHN F. SCILEPPI, Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that, upon

application timely made by the above named appellant for a

certificate pursuant to § 460.20 of the Criminal Procedure

Law and upon the record and proceedings herein, there is no

question of law presented which ought to be reviewed by the Court

of Appeals and permission to appeal is hereby denied.

Dated at Kew Gardens, New York

December 8, 1971

s/John F. Scileppi

Associate Judge

PAN DN hits SPs (Ra aed Nate eee OERROIS Lv Absa ER a

4a

CERTIFICATE DENYING LEAVE DATED

MARCH 14, 1974

STATE OF NEW YORK

COURT OF APPEALS

Before: Hon. Charles D. Breitel, Chief Judge

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

-against-

FRED TURETSKY,

Defendant-Appellant.

I, CHARLES D. BREITEL, Chief Judge of the Court of

Appeals of the State of New York, do hereby certify that, upon

application for reconsideration of a prior denial of an application

made by the above-named appellant for a certificate pursuant to

CPL 460.20 and upon the proceedings herein,* there is no question

of law presented which ought to be reviewed by the Court of

Appeals and permission to appeal is hereby denied.

Dated at:

New York, New York

March 14, 1974

* a

5a

Certificate Denying Leave Dated

March 14, 1974

s/Charles D. Breitel

Chief Judge

Irving Anolik, Esq.

225 Broadway

New York, New York 10007

Hon. Richard H. Kuh

District Attorney, New York Co.

155 Leonard Street

New York, New York

Clerk, Court of Appeals

*Description of Order: 11-9-71 App. Div. Ist affmd. Sup. Ct.

N.Y.Co 1-7-70