Admissibility of Evidence - Evidence Illegally Obtained. – Unlawful Entry, Search and Seizure and Electronic Surveillance of Family Conversations – Exceptions for Custody and Article 10 Cases
Evidence unlawfully seized by police authorities through an unlawful entry or unlawful search and seizure is inadmissible in evidence and may be suppressed upon motion. The Fourth Amendment to the Constitution of the United States protects against “unreasonable governmental intrusion” into the privacy of a person's home;[1] and any evidence discovered as a result of such governmental intrusion is constitutionally tainted and inadmissible in a State court criminal trial.[2] The similar provisions of the Constitution of New York State also relate solely to the sovereign authority and to its agencies and protect individuals against unreasonable search and seizures.[3]
However, in an action for divorce, evidence of adultery or any other evidence obtained by a spouse through unlawful entry will not be suppressed, since the federal and state constitutional protection against unreasonable search and seizure by governmental action is not intended to be a limitation upon other than governmental agencies.[4]
It has been held that the exclusionary rule must yield to the best interests of the child. In Matter of Diane P, [5] the issue was whether there must be suppression of illegally seized evidence when the matter to be tried is a child protective proceeding under Family Court Act article 10. The events that precipitated the proceeding began when respondent's 13-year-old daughter entered the offices of the Ossining Police Department and complained that her mother had struck her with a broom. Based on this complaint, at approximately 3 o'clock in the morning of September 10, 1983, a uniformed police officer and several representatives of petitioner Westchester County S.P.C.C. went to respondent's apartment. According to respondent, they awakened her from a sound sleep by banging loudly on her door, obtained her signature on a form consenting to the temporary removal of her daughter, and then undertook a warrantless search of the apartment without obtaining respondent's consent. During the course of this search, they uncovered and seized a broom and a shoe, one or both of which had allegedly been used to beat the child. The Appellate Division held that upon weighing the likely deterrent effect of the exclusionary rule against its detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children, the rule should not be applied in such proceedings. The Court concluded that because a child protective proceeding itself is not punitive in nature and the deterrent effect of the exclusionary rule will be adequately served by precluding use of the evidence in any related criminal proceeding, the State's interest in protecting its children mandates the admissibility of relevant evidence seized during an illegal search.
The rule in Matter of Diane P was extended to custody proceedings in Young v Young,[6] where the Appellate Division held that Family Court did not err in summarily denying the mother's motion to suppress certain evidence which she alleged was obtained illegally. It stated that in a custody case, the court is required to determine "solely what is for the best interest of the child, and what will promote its welfare and happiness, and make award accordingly. It held that the application of the exclusionary rule to prevent the court from considering factors relevant to that determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule.[7]
Unlawful bugging or wiretaps also involve illegally obtained evidence. There are both federal and state laws on this subject and an illegal bugging or wiretap may incur both criminal and civil remedies. The New York provision[8] and the federal statutes[9] differ in language and in the result.
Wiretapping or electronically eavesdropping on a spouse's conversations is a Class E felony under New York law[10] and illegal under federal law.[11] Civil Practice Law and Rules Rule 4506 renders inadmissible "the contents or any overheard or recorded communication, conversation or discussion, or evidence derived therefrom" that was obtained "by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law." The ban applies to all kinds of proceedings, civil and criminal.
New York Penal Law §250.00 states that a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation. "Wiretapping means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than the sender or receiver, by means of any instrument, device or equipment . . . Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment." The federal statutes, however, have received a conflicting interpretation, depending upon whether or not a "marital exception" is read into the statute.[12]
The Federal Communications Act[13] provides: "No person not being authorized by the sender shall intercept any radio communication, and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person."
[1] Silverman v. United States, 365 U. S. 505, 511.
[2] Mapp v. Ohio, 367 U. S. 643; People v. Loria, 10 N Y 2d 368
[3] N. Y. Const., art. I, §12; Civil Rights Law, Consol.Laws Ch. 6, § 8.
[4] Sackler v Sackler (1962, 2d Dept) 16 App Div 2d 423, 229 NYS2d 61, affd 15 NY2d 40, 255 NYS2d 83, 203 NE2d 481.
[5] Matter of Diane P, 110 A.D.2d 354, 494 N.Y.S.2d 881, 54 USLW 2273
(2d Dept 1984).
[6] Matter of Young v Young, 84 A.D.3d 972921 N.Y.S.2d 895(2 Dept. 2010).
[7] Id.
[8] See Civil Practice Law and Rules Rule 4506 and New York Penal Law §738.
[9] 47 USCA §605 (Fed Communications Act) in substance provides that "no person, not being authorized by the sender shall intercept and communication and divulge or publish the . . . contents of such intercepted communication." This statute was enacted 6 years after Olmstead v United States, 277 US 438 (1914) had held that neither the Fourth Amendment prohibition of illegal searches and seizures nor the Fifth Amendment privilege against self incrimination precluded the admissibility of wire tap evidence. Katz v United States, 389 US 347 (1968), reversed Olmstead and held that the Fourth Amendment did apply.
[10] New York Penal Law §250.00.
[11] 18 USCA §2510.
[12] In Anonymous v Anonymous (1977, CA2 NY) 558 F2d 677, the Second Circuit held for the marital exception in a case where the eavesdropper recorded conversations between his ex-wife and their daughter over the telephone in his home. The daughter was living with him.
[13] 47 USCA §605.
Evidence unlawfully seized by police authorities through an unlawful entry or unlawful search and seizure is inadmissible in evidence and may be suppressed upon motion. The Fourth Amendment to the Constitution of the United States protects against “unreasonable governmental intrusion” into the privacy of a person's home;[1] and any evidence discovered as a result of such governmental intrusion is constitutionally tainted and inadmissible in a State court criminal trial.[2] The similar provisions of the Constitution of New York State also relate solely to the sovereign authority and to its agencies and protect individuals against unreasonable search and seizures.[3]
However, in an action for divorce, evidence of adultery or any other evidence obtained by a spouse through unlawful entry will not be suppressed, since the federal and state constitutional protection against unreasonable search and seizure by governmental action is not intended to be a limitation upon other than governmental agencies.[4]
It has been held that the exclusionary rule must yield to the best interests of the child. In Matter of Diane P, [5] the issue was whether there must be suppression of illegally seized evidence when the matter to be tried is a child protective proceeding under Family Court Act article 10. The events that precipitated the proceeding began when respondent's 13-year-old daughter entered the offices of the Ossining Police Department and complained that her mother had struck her with a broom. Based on this complaint, at approximately 3 o'clock in the morning of September 10, 1983, a uniformed police officer and several representatives of petitioner Westchester County S.P.C.C. went to respondent's apartment. According to respondent, they awakened her from a sound sleep by banging loudly on her door, obtained her signature on a form consenting to the temporary removal of her daughter, and then undertook a warrantless search of the apartment without obtaining respondent's consent. During the course of this search, they uncovered and seized a broom and a shoe, one or both of which had allegedly been used to beat the child. The Appellate Division held that upon weighing the likely deterrent effect of the exclusionary rule against its detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children, the rule should not be applied in such proceedings. The Court concluded that because a child protective proceeding itself is not punitive in nature and the deterrent effect of the exclusionary rule will be adequately served by precluding use of the evidence in any related criminal proceeding, the State's interest in protecting its children mandates the admissibility of relevant evidence seized during an illegal search.
The rule in Matter of Diane P was extended to custody proceedings in Young v Young,[6] where the Appellate Division held that Family Court did not err in summarily denying the mother's motion to suppress certain evidence which she alleged was obtained illegally. It stated that in a custody case, the court is required to determine "solely what is for the best interest of the child, and what will promote its welfare and happiness, and make award accordingly. It held that the application of the exclusionary rule to prevent the court from considering factors relevant to that determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule.[7]
Unlawful bugging or wiretaps also involve illegally obtained evidence. There are both federal and state laws on this subject and an illegal bugging or wiretap may incur both criminal and civil remedies. The New York provision[8] and the federal statutes[9] differ in language and in the result.
Wiretapping or electronically eavesdropping on a spouse's conversations is a Class E felony under New York law[10] and illegal under federal law.[11] Civil Practice Law and Rules Rule 4506 renders inadmissible "the contents or any overheard or recorded communication, conversation or discussion, or evidence derived therefrom" that was obtained "by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law." The ban applies to all kinds of proceedings, civil and criminal.
New York Penal Law §250.00 states that a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation. "Wiretapping means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than the sender or receiver, by means of any instrument, device or equipment . . . Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment." The federal statutes, however, have received a conflicting interpretation, depending upon whether or not a "marital exception" is read into the statute.[12]
The Federal Communications Act[13] provides: "No person not being authorized by the sender shall intercept any radio communication, and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person."
[1] Silverman v. United States, 365 U. S. 505, 511.
[2] Mapp v. Ohio, 367 U. S. 643; People v. Loria, 10 N Y 2d 368
[3] N. Y. Const., art. I, §12; Civil Rights Law, Consol.Laws Ch. 6, § 8.
[4] Sackler v Sackler (1962, 2d Dept) 16 App Div 2d 423, 229 NYS2d 61, affd 15 NY2d 40, 255 NYS2d 83, 203 NE2d 481.
[5] Matter of Diane P, 110 A.D.2d 354, 494 N.Y.S.2d 881, 54 USLW 2273
(2d Dept 1984).
[6] Matter of Young v Young, 84 A.D.3d 972921 N.Y.S.2d 895(2 Dept. 2010).
[7] Id.
[8] See Civil Practice Law and Rules Rule 4506 and New York Penal Law §738.
[9] 47 USCA §605 (Fed Communications Act) in substance provides that "no person, not being authorized by the sender shall intercept and communication and divulge or publish the . . . contents of such intercepted communication." This statute was enacted 6 years after Olmstead v United States, 277 US 438 (1914) had held that neither the Fourth Amendment prohibition of illegal searches and seizures nor the Fifth Amendment privilege against self incrimination precluded the admissibility of wire tap evidence. Katz v United States, 389 US 347 (1968), reversed Olmstead and held that the Fourth Amendment did apply.
[10] New York Penal Law §250.00.
[11] 18 USCA §2510.
[12] In Anonymous v Anonymous (1977, CA2 NY) 558 F2d 677, the Second Circuit held for the marital exception in a case where the eavesdropper recorded conversations between his ex-wife and their daughter over the telephone in his home. The daughter was living with him.
[13] 47 USCA §605.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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