03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … trained on the gathering storm across the Atlantic (or, in the case of many Republican representatives, on the New Dealer in the White House), remind us that "the time may come not when some district attorney will have trouble in convicting someone, not when the rights of some crook ought to be forgotten and he ought to be in jail, not when a crook may or may not get convicted, but the time may come in this State when times will become political, and you will be a convict in the eyes of the other fellow if you don't believe in his political philosophy. If there is any excuse for a written constitution, if [*30]there has ever been any excuse for a written constitution, it is to write in there the protection for the minority against the aggression and the greed and the brute force of the majority." (Revised Record at 465) The concern of this case, like the concern of the delegates' generation, is not with crime waves, but with the protection of the individual against the power of the government. "The issue," in the language of 1938, "is both clear and simple. It is one of honesty, plain and simple. Shall we say what we mean, and shall we mean what we say? Shall we prohibit wiretapping in one breath and admit the evidence obtained in violation of the principle in the other breath? Do the gentlemen of the opposition subscribe to the principle that we should adopt a constitutional amendment here with all the sacrosanctness that that imports, and then say to the enforcement officials, 'You may disregard it, you may violate it, you may override it, you may flout it, if you please, and we will not only uphold you, but the State will adopt the fruits of your crime?' If that is their position then God help us. I know of no better invitation to political tyranny or official lawlessness. This kind of logic . . . may be properly described in the words of one of our distinguished statesmen as either crack-pot or baloney. If this is their position, then we say to them now that they are creating a despotism clothed in the robes of legal sanction, nothing more, nothing less." (Revised Record at 504-5) Constitutional and Congressional words of promise were given to our ear, and I would not break them to our hope. I respectfully dissent, and would remand this case to the Appellate Division to resolve the motion to quash or modify the warrants, as well as the pendant matters involving the permissibility of an indefinite gag order and the disclosure of the underlying affidavit. As one of the [*31]delegates to the 1938 convention urged his fellow representatives, "let us decide this thing on the merits" (Revised Record at 462). https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 33/44