Handler, J.s.c. (temporarily assigned).
Defendant William A. Christy, a/k/a Wally, has been charged in three indictments with bookmaking, working for a lottery and conspiracy to violate the laws pertaining to lottery. Thirteen other persons were similarly indicted. Defendant has brought a motion to suppress certain evidence seized as a result of a search and to suppress oral communications obtained as a result of a telephone wiretap.
A sworn written application for an order to intercept telephonic communications was submitted to the Essex County assignment Judge by a lieutenant in the Essex County Prosecutor's office on January 29, 1970. This affidavit described a suspected gambling conspiracy being directed and coordinated by certain named individuals at a specific location at which a particular telephone was being used. On that same date a wiretap order was issued and a wiretap was conducted between January 30 and February 16, 1970. Conversations relating to this particular defendant were intercepted on February 2, 10, 11, 13 and 14, 1970. Utilizing this information, an affidavit for a search warrant was presented and a warrant was issued and executed on February 17, 1970, resulting in the seizure of evidence.
Defendant contends generally that the order authorizing the telephone wiretap was invalid and that the search warrant
for the premises was similarly invalid since it was based upon the results of the wiretap. He urges three main grounds in his attack upon the legality of the wiretap: (1) the statute under which the wiretap was authorized, the New Jersey Wiretapping and Electronic Surveillance Control Act, L. 1968, c. 409 (N.J.S.A. 2A:156A-1 et seq.) is unconstitutional; (2) the act is unconstitutional as applied in this case because the order issued pursuant thereto was not sufficiently limited, and (3) the application submitted for the wiretap authorization failed to disclose probable cause therefor.
Prior to the passage of the New Jersey Wiretapping and Electronic Surveillance Control Act in 1968, it was a misdemeanor for any person to tap a telephone line belonging to any other person or to disclose any communication thus obtained. N.J.S.A. 2A:146-1, repealed L. 1968, c. 409. With the adoption of the comprehensive wiretap legislation effective January 1, 1969, the earlier prohibition of all wiretapping was repealed and replaced by detailed provisions envisioning official electronic eavesdropping and wiretapping to be carried out by specially trained law enforcement officers under judicial supervision. These significant changes in New Jersey law closely paralleled and followed a similar modification in federal law, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. The federal statute was a direct response to two landmark cases decided by the United States Supreme Court in 1967, Berger v. New York , 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040, and Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, each reversing a conviction based upon evidence derived from official eavesdropping.
Berger and Katz together have sketched the boundaries within which wiretapping or eavesdropping by governmental
authorities may be constitutionally permissible.*fn1 Both cases were decided shortly after the report of the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967), recommended the carefully controlled employment of modern surveillance techniques to combat the menace of organized crime. Congress responded by quick enactment of the Omnibus Act. This enactment sought to avoid the constitutional deficiencies which the Supreme Court emphasized in Berger and Katz. It provided a legal framework for judicial authorization of federal eavesdropping and imposed minimum federal standards for any state legislation authorizing eavesdropping by state officers. See 18 U.S.C. § 2516(2) and 18 U.S.C. § 2518. The New Jersey wiretapping statute, N.J.S.A. 2A:156A-1 et seq. , is patterned after the federal model.
Defendant bottoms his attack upon the failure of the New Jersey act to measure up to the standards in Berger. In Berger an investigation following a complaint made to the district attorney's office implicated an attorney in a conspiracy to obtain liquor licenses by bribing New York Liquor Authority officials. The New York court sanctioned the bugging of the attorney's office for a 60-day period in accordance with the New York statute empowering judges to issue eavesdrop orders. As a result of leads derived from this eavesdrop, a second 60-day order was issued authorizing the placement of a recording device in the office of another alleged participant in the bribery conspiracy. Solely on the basis of evidence obtained through the concealed microphones, Berger was charged with complicity in the graft
scheme. The court in Berger isolated several infirmities in the New York statute which led to its conclusion of constitutional invalidity. Basically, the court found the New York statute to be defective because (1) it failed to require a description of a particular crime that has been or is being committed; (2) it failed to contain any requirement that the conversations sought be particularly described; (3) it failed to make provision for a showing of special facts or exigent circumstances; (4) it imposed inadequate limitations on the eavesdropping time period, and (5) it failed to provide for a return on the warrant.*fn2
Defendant does not argue that all of the deficiencies underscored in Berger infect the New Jersey Wiretapping and Electronic Surveillance Control Act. Thus, the New Jersey statute specifically designates certain offenses to which it is applicable (section 8). It also requires that there be a description of the communications to be seized and provides that there be a showing of particular facts or special need (sections 9, 10 and 11), including a showing that other investigative procedures are or will be unsuccessful or dangerous (section 9(c)(6)). Another constitutional defect noted by the Court in Berger was that under the New York statute an extension of the original period could be obtained with only a perfunctory showing of continuing need. This defect has been repaired in the New Jersey act by sections 9(d) and 12 which together require that before a judge can issue an order extending the eavesdropping period, he must consider the results, if any, theretofore obtained and treat the application as if it were an initial request for permission to wiretap. The New York statute failed to provide for a return on the warrant after the eavesdropping had been completed. This defect has
been largely remedied by provisions that applications, orders and recorded communications be sealed (sections 14 and 15), and that an "inventory" consisting of notice of the eavesdropping order, the period during which it was executed and whether communications were overheard must be served upon persons affected thereby within 90 days after the termination of the order. Provision is also made for disclosures by way of discovery (section 16).
Although the court in Berger discusses the Fourth Amendment's insistence upon particularity of the "persons * * * to be seized" (388 U.S. at 56, 87 S. Ct. at 1882, 18 L. Ed. 2d at 1050), it did not find any violation of this provision since the New York statute required, as does the New Jersey act, the naming of the parties whose conversations are going to be intercepted.*fn3 Berger , however, did indicate that the New York statute was too indiscriminate because it would permit eavesdropping upon the conversations of any persons who might come within the ambit of surveillance. The New Jersey act requires that the interception of nonsubject communications be minimized or avoided (section 12(f)) and that a wiretap of public facilities or those involving privileged relationships can only be authorized upon a showing of "special need" (section 11).
The focus of defendant's constitutional attack is upon the duration of the wiretapping period that could be permitted under the statute. Section 9(c)(5) provides that an application for a wiretap order must contain:
A statement of the period of time for which the interception is required to be maintained; if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; * * *.
Section 12(f) requires that a wiretap order provide:
The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act. In no case shall an order entered under this section authorize the interception of wire or oral communications for any period exceeding 30 days. * * *
Defendant stresses that the statute, which permits an electronic surveillance for as long as 30 days without the necessity of securing additional authorization from the court during this period, is unconstitutional. Reliance is placed on Berger's emphatic disapproval of the provisions of the New York statute allowing a continuous eavesdropping for 60 days, as well as the absence of a termination once the officer had obtained the incriminating conversation. Berger strongly suggests that the sole fact that an electronic surveillance could be authorized for a period of 60 days was tantamount to permitting a series of intrusions, searches and seizures upon only one initial showing of probable cause and was therefore unreasonable. It should be pointed out, however, that the New York statute was apparently applied or construed by the state court as authorizing such a blanket surveillance of 60 days.*fn4 The Supreme Court in Berger contrasted
this blanket permissiveness of the New York statute to intercept any and all conversations at any time during an entire two-month period with the sharply circumscribed intrusions exemplified in the earlier case of Osborn v. United States , 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966). There, without any statutory authority whatsoever, two federal judges approved the placement of a bugging device on a witness in order to determine the truth of an accusation that jurors were being bribed. The bugging in Osborn was considered constitutionally acceptable because it involved only "one limited intrusion rather than a series or a continuous surveillance" and was conducted "with dispatch, not over a prolonged and extended period." The search was regarded as having been authorized "'under the most precise and discriminate circumstances * * *.'" Berger v. State of New York, supra , 388 U.S. at 56, 87 S. Ct. at 1882, 18 L. Ed. 2d at 1051.
Also explicative of the Supreme Court's view that an electronic surveillance must be sharply circumscribed is its decision in Katz. Federal agents utilizing information and their own observations concluded that a defendant was making illegal use of a public telephone at particular times during the day. They installed a listening device so that the defendant's conversations could be overheard and recorded. Under these circumstances only the remarks of defendant himself were intercepted. The court, while suppressing the evidential fruits of this search because of the failure to obtain a warrant therefor, nevertheless stated with approval that the surveillance was "narrowly circumscribed," a "precise intrusion," a "very limited search and seizure." 389 U.S. at 354, 88 S. Ct. at 513, 19 L. Ed. 2d at 584.
The New Jersey act has incorporated certain standards to curtail the duration of an interception. Thus, the relevant portion of the New York statute provided "[a]ny such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed * * *." The New Jersey statute also provides that the time period must be specified (sections 9c(5) and 12 (f)). But it further provides that no order may authorize interception "for a period of time in excess of that necessary under the circumstances"; that the interception must "begin and terminate as soon as practicable," and that in any event the period of the interception cannot exceed 30 days (section 12(f)). Moreover, if an interception is to continue beyond the time that the described type of communication has been first obtained, the application for the court order must include "a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter" (section 9c(5)), and the order itself must contain "a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained" (section 12(f)).
Thus, the duration of an interception must itself be limited to what is "necessary under the circumstances." It has been suggested that this phrase is vague and indefinite. The term "necessary" is a flexible and relative concept. It is infused with substantive content by the basic statute and imports what is convenient, useful, appropriate, suitable, proper or conducive to the end sought, as expressed in the operative enactment. Cf. Herrick v. Maine , 159 Me. 499, 196 A.2d 101, 104 (Sup. Jud. Ct. 1963). When the statute speaks in terms of necessity it conveys the directive that the wiretapping may be authorized only for that period of time which the issuing judge determines is required to uncover incriminating or guilty conversations ...