There was indeed a gross failure on the part of the police to minimize the telephonic conversations they were authorized to intercept. CPL 700.35 (subd 7) directs, inter alia, that such police activity "shall be conducted in such a way as to minimize the interception of conversations not otherwise subject to eavesdropping”.
Similar provision is to be found in Federal law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 reads: "Every order and extension thereof shall contain a provision that the authorization to intercept shall be * * * conducted in such a way as to minimize the interception of *82communications not otherwise subject to interception under this statute.” (US Code, tit 18, § 2518, subd [5].)
Nothing in CPL article 700 or title 18 of the United States Code, each of which is concerned with the issuance and execution of wiretap warrants provides any sanction in the event of failure to meet this statutory obligation.
It has been observed: "Whether violation of 'minimization’ provisions requires * * * across-the-board suppression or whether * * * conversations that the order permitted to be seized may be admitted is a question which has divided both the federal and New York courts.” (United States v Principie, 531 F2d 1132, 1139.)
For an excellent analysis of Federal and New York State cases on this point, see People v Vario (NYLJ, June —, 1976. (Filed June 14, 1976, Indictment No. 10647/72.)
In the case before us, as Justice Murphy noted, "The People concede that the electronic interception pursuant to the warrant was done entirely automatically. Though the monitoring officers themselves may have turned down the volume on their earphones when a nonpertinent call was intercepted, the electronic process of the telephone ring activated taping machines which, without human intervention or judgment, recorded each and every conversation over the defendant’s telephone. These machines were never turned off during the 20 days of tapping * * * The police tapped and taped every single telephone conversation in full, including those concededly nonpertinent.”
The District Attorney seeks to justify this failure to minimize the telephone interception on the ground that the criminal activity under investigation involved many individuals and that "where conversations are in code or a foreign language, a more extensive interception of conversations is justified owing to the difficulty in determining which conversations are pertinent or non-pertinent”.
The District Attorney in the case at bar was not using telephonic interception as a technique to determine whether or not a conspiracy existed in which Brenes was a party. (United States v Sisca, 361 F Supp 735, 745, affd. on other grounds, 503 F2d 1337, cert den 419 US 1008; cf People v Vario, supra.) The court order, which must be strictly construed, limited the law enforcement officer involved in the wiretapping procedure "to intercept any and all telephone communications of said Miguel Brenes concerning the pur*83chase, sale, possession, transfer and distribution as well as the discussion of and negotiation for the said purchase, sale, possession, transfer and distribution of dangerous drugs * * * transmitted over the said telephone line”. To this extent only was Brenes’ privacy to be invaded. Privacy is of constitutional dimension (Griswold v Connecticut, 381 US 479), and it has been urged that “minimization is a constitutional requirement”. (Low, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories, 61 Cornell L Rev 92, 101.)
It is noteworthy that the State and Federal statutes each refer to the manner in which such police interception shall be “conducted”. As was stated by one Federal court: “In this court’s opinion the minimization requirement of § 2518(5) would be illusory if it were enforced on an item-by-item basis by means of suppressing unauthorized seizures at trial after the interception is a fait accompli. Minimization as required by the statute must be employed by the law enforcement officers during the wiretap, not by the court after the wiretap * * * Knowing that only 'innocent’ calls would be suppressed, the government could intercept every conversation during the entire period of a wiretap with nothing to lose by doing so since it would use at trial only those conversations which had definite incriminating value anyway, thereby completely ignoring the minimization mandate of Title III.” (United States v Focarile, 340 F Supp 1033, 1046-1047, affd on other grounds sub nom. United States v Giordano, 469 F2d 522, affd 416 US 505.)
In the case at bar there was not the slightest effort by the police to minimize the interception of conversations, as required by law. The law authorizing telephone interception does not contemplate the substitution of electronic repositories for the permanent storage of endless and irrelevant conversations of any number of persons. To protect privacy of those who might be affected by interception, the law requires the discriminating ear of human monitors.
In Olmstead v United States (277 US 438, 470) Holmes, J., observed that wiretapping is “dirty business”—a characterization which is today generally acknowledged. In that same case Brandéis, J., observed in his famous dissent (p 476): "Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him.” He continued, “writs of assistance *84and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.” He concluded (p 485), "Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Crime is indeed contagious if it can spread to government activity where police disdain to follow the law. Accordingly, there is pressing need to limit the area of infection. Where the infection is widespread, judicial surgery may be required.
We must, as the Court of Appeals for the Second Circuit has stated, distinguish "between blatant violations of the statute, in which no attempt at minimization is made, and cases in which minimization is attempted, but the court concludes that the efforts were indadquate.” (United States v Principie, 531 F2d 1132, 1140, supra.)
The implication is clear: Where there are blatant violations total suppression will be enforced. In the instant case the police did not bother to even attempt minimization.
In my view, total extirpation of all intercepted calls in this case is mandated.
Inasmuch as the application for the search warrant upon which the police acted in this case in arresting the defendant was predicated upon information allegedly obtained through the telephonic interception referred to herein, I am in accordance with Justice Murphy’s view requiring the reversal of the judgment of conviction and the orders denying the motions to suppress and would dismiss the indictment.