Opinion
January 27, 1984
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Hancock, Jr., Green, O'Donnell and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, in accordance with the following memorandum: During a gambling investigation, the police applied for and received an eavesdropping warrant for the express purpose of determining the scope of the alleged criminal enterprise. Later, as a result of information obtained from the authorized wiretaps, warrants were obtained to search two premises for gambling records. Defendants' motion to suppress evidence seized pursuant to the eavesdropping and search warrants was granted on the ground that the eavesdropping warrant was not supported by a sufficient showing that the police exhausted normal investigative procedures (CPL 700.15, subd 4; 700.20, subd 2, par [b]). Based on the affidavits supporting the eavesdropping warrant and testimony at a hearing, the court found that the warrant should not have been issued by another County Court Judge. The People's contention that the court improperly reviewed a determination made by a fellow Judge is without merit. Application of the "law of the case" doctrine is a matter of judicial discretion and is not without limitations ( Matter of Silverberg v Dillon, 73 A.D.2d 838). In this case the application for the eavesdropping warrant was made ex parte. Its veracity and the claimed existence of a confidential informant were questioned by the defendants on their motion to suppress. The court made its decision based not only on the affidavits submitted with the application, but also on additional facts established at the hearing. Under these circumstances the court did not abuse its discretion in entertaining the suppression motion (see CPL 710.50, subd 1, par [a]; People v Versace, 73 A.D.2d 304; Matter of De Joy v Zittell, 67 A.D.2d 1076; see People v Romney, 77 A.D.2d 482; see, also, People v Martin, 97 Misc.2d 441, 444-445, revd on other grounds 71 A.D.2d 928; 1 Carmody-Wait 2d, N Y Prac, § 2:68, p. 82). The court erred, however, in granting the motion to suppress on the ground that the police did not exhaust normal investigative procedures before applying for the eavesdropping warrant. During the five-month investigation preceding the application the police were unable to gather any evidence against the higher echelon of the conspiracy. There is no requirement that the police use eavesdropping only as a last resort after every other imaginable method of investigation has proved unsuccessful. The law simply requires that the police "`inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods'" ( People v Versace, supra, p. 308, quoting United States v Hinton, 543 F.2d 1002, 1011). The required showing must be "`tested in a practical and commonsense fashion'" ( United States v Lilla, 699 F.2d 99, 103; see, also, People v Versace, supra, p. 307) in the context of the objectives of the investigation as delineated in the People's application (see People v Romney, supra; People v Versace, supra; see, also, United States v Bailey, 607 F.2d 237). Under the circumstances in this case issuance of the warrant was not an abuse of discretion (see People v Romney, supra, pp 484-485). Nevertheless, the evidence seized during the search of premises located at 908 Hudson Avenue, Rochester, New York, should be suppressed. Although the police knew that a warrant had been signed and was en route, they entered and searched the premises without the warrant in their possession. The entry may have been proper (see People v Mahoney, 58 N.Y.2d 475), but the search which was conducted for gambling records before the warrant arrived cannot be justified. Obviously, without the warrant in their possession the police could not know the terms of the warrant and the limitations imposed by the issuing Judge. Thus, the search which was conducted was tantamount to a warrantless search. There is no reason why the searching officers could not have waited a short time until the warrant arrived. Other grounds for suppression have been examined and found to be without merit.