NY district court allows wiretap evidence over multiple objections from defendant

In United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D.N.Y. 2012), the court denied the suppression of wiretap evidence over arguments that probable cause did not exist, the necessity requirement was not established, and minimization was not followed.

The defendant allegedly worked to defraud Medicare of over $100 million and sought to suppress evidence from wiretaps (among other searches), arguing that probable cause did not exist and the applications did not show necessity for a wiretap. The court first found that probable cause existed, and then addressed the necessity requirement.

Under the Wiretap Act, allowance for a wiretap requires law enforcement to "demonstrate 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.'" 18 U.S.C. § 2518(1)(c). Wiretaps should not be used routinely "as the initial step in criminal investigation," but law enforcement need not exhaust all other means.

The defendant claimed that "little to no investigation was done" prior to the wiretapping and that the language for showing necessity was essentially boilerplate. However, the court held that using such boilerplate language does not alone make it invalid and found that the wiretapping was reasonably believed to be more effective than other methods of investigation.

The court, in a detailed analysis, also held that the government sufficiently followed the minimization requirement which requires the wiretap to "be conducted in such a way as to minimize the interception of communications not" related to the investigation. 18 U.S.C. § 2518(5).