For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendants appeal from convictions for bookmaking and conspiracy to make book. We certified the matter before the Appellate Division considered it.
During a raid conducted under a search warrant, a police officer answered the telephone. The sole claim before us is that it was error to permit him to testify:
"I picked up the phone and said, 'Hello,' and the caller said, 'Pat' and I said, 'Yes.' He said, 'Give me Silky Jet at Laurel, five across.'"
The questions are whether (1) there was a violation of section 605 of the Federal Communications Act (47 U.S.C.); (2) if there was, the statute itself or sound judicial administration bars receipt of the evidence; and (3) the search-and-seizure provision of the Fourth Amendment was infringed.
We will start with the second and third of these questions.
In State v. Giardina, 27 N.J. 313, 315 (1958), we pointed out that the federal rule excluding evidence obtained in violation of the federal statute does not apply to the states. It had been so held in Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231 (1952), and Benanti v. United States, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2 d 126 (1957). After Giardina the doctrine was
reiterated in Pugach v. Dollinger, 365 U.S. 458, 81 S. Ct. 650, 5 L. Ed. 2 d 678 (1961).
Defendants urge we should find those cases were silently overruled a few months after Pugach by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961). In Mapp the Court, overturning its prior rulings, held the state courts must exclude evidence obtained by an unreasonable search and seizure in violation of the Fourth Amendment. Mapp, however, dealt solely with that constitutional provision. The federal rule excluding proof of messages intercepted in violation of section 605 rests upon the supervisory power of the judiciary rather than upon the command of either the statute or of a constitutional provision. We cannot assume that Mapp was intended to deny that thesis. Others have held that Mapp did not. Williams v. Ball, 294 F.2d 94 (2 Cir. 1961), cert. denied 368 U.S. 990, 82 S. Ct. 598, 7 L. Ed. 2 d 526 (1962); People v. Dinan, 11 N.Y. 2 d 350, 229 N.Y.S. 2 d 406, 183 N.E. 2 d 689 (Ct. App. 1962).
Nor does wire-tapping as such involve a search or seizure within the Fourth Amendment. That was the holding of Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), and although the dissents in that case continue to claim strong support, Olmstead remains the controlling view of the Constitution. Goldstein v. United States, 316 U.S. 114, 120, 62 S. Ct. 1000, 86 L. Ed. 1312, 1318 (1942); Goldman v. United States, 316 U.S. 129, 135, 62 S. Ct. 993, 86 L. Ed. 1322, 1328 (1942); Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2 d 734 (1961). We find nothing to the contrary in Mapp. Accordingly we need not consider whether, if the Fourth Amendment did apply to the interception of a telephonic message, the search and seizure in the present case could be said to be "unreasonable" in view of the fact that they occurred as an incident to a lawful arrest and as well a lawful search of the premises under the authority of a search warrant.
The remaining question with respect to exclusion of the evidence is the one we expressly left open in ...