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State v. Sidoti

Decided: July 29, 1971.


Handler, J.s.c.


Defendants Phillip A. Sidoti, Nicola Auriemma, Rita Auriemma, John A. Guancione and Raymond De Fillipis were indicted by the Essex County grand jury for conspiracy to violate the gambling laws. Several of them were also charged with so-called substantive offenses, such as the possession of lottery slips, maintaining a gambling resort, working for a lottery and bookmaking. Another defendant, Dominic Spataro, was indicted separately for related gambling offenses by the Hudson County grand jury.

On May 28, 1970 a sworn application was submitted by the Essex County Prosecutor pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, L. 1968, c. 409; N.J.S.A. 2A:156A-1 et seq. , for judicial authorization to intercept wire communications over certain public telephone facilities. An order authorizing such electronic surveillance was issued on the same date. A second application was made on September 14, 1970 to intercept wire communications over a nonpublic telephone facility. An order authorizing this interception was issued the next day. After intercepting numerous telephonic communications pursuant to this second order, a sworn application for search warrants was made on October 2, 1970 covering one Phillip Sidoti, his motor vehicle and approximately ten different premises. The search warrants issued and were duly executed, with the resultant seizures of evidence and arrests.

The original application of May 28, 1970 was submitted by a lieutenant of detectives in the prosecutor's office. It concerned the suspected illegal gambling activities of one Nicholas Mitarotonda and other "unknown persons," and their use of two public telephones to relay gambling information. It stated that "[i]n order to identify such individuals working for and associated in this illegal gambling operation, it will be necessary to intercept telephonic conversations over public telephone facilities number (201) 748-9849 and (201) 748-9896, located at the corner of North 15th Street and Chester Avenue, Bloomfield, New Jersey." It

further stated that "any sustained surveillance is impossible, because a strange vehicle parked in the neighborhood or a strange individual on foot would be noticed and the security of the investigation would be jeopardized." Also, that "individuals at this level generally will conduct their business by telephone to avoid contact with other bettors or operators working in the gambling operation which can be detected by surveillances." Because of these facts and the interception of telephone conversations would disclose the substance of discussions between the persons in the wagering enterprise, it was claimed "a special need exists to intercept conversations over public telephone facility numbers (201) 748-9849 and (201) 748-9896."

This application incorporated an affidavit made by an investigator in the prosecutor's office. The affidavit recited information which had been received from an informant concerning this gambling activity. According to the affidavit, the investigator met with his informant on May 6, 1970, who pointed out the suspect Mitarotonda and "other white males." These persons were observed utilizing an "Armstrong sheet" and engaging in conversation pertaining to the business of horse racing; the suspect was seen to enter the phone booth, place a call and engage in a conversation for about a minute; he accepted cash from these individuals sometimes before and sometimes after placing the call. This occurred six or seven times between 11:30 A.M. and 12:30 P.M. It was further stated that "phone activity was conducted among the aforesaid white males until surveillance ceased at 3:00 P.M." Similar activity was observed on the following day, May 7, when the suspect arrived at approximately 11:30 A.M. In addition, the investigator, by entering one of the two phone booths, personally overheard the suspect call from the other phone booth a "type of bet that can only be placed with a bookmaker." On May 8 the suspect arrived at approximately 11:40 A.M.; the same type of activity was observed and the investigator also was able to overhear "conversations * * * all relating to horse * * *

and lottery bets." On May 9, the last day of the surveillance, this pattern of activity was observed between the hours of 11:30 A.M. and 3:00 P.M., during which the suspect Mitarotonda and others would make "frequent phone calls of short duration and have conversations pertaining to placing of horse and lottery bets" and exchange cash. The investigator expressed the opinion that "the individuals described are either bettors and/or bookmaker's runners, who are placing bets via the use of public telephone[s] * * * to bookmakers whose locations are unknown at this time."

On this showing the court determined there was a "special need" and authorized the Essex County Prosecutor's Office "to intercept the wire communications of unknown males engaging in a bookmaking and lottery operation relating to the offenses of Bookmaking (N.J.S. 2A:112-3), Lottery (N.J.S. 2A:121-3 and 4), Conspiracy (N.J.S. 2A:98-1 and 2) from public telephone facility (201) 748-9849 and (201) 748-9896 listed to the public telephone booths located at the intersection of North 15th Street and Chester Avenue, Bloomfield, New Jersey." It further provided that the "interception will begin and end as soon as practicable and be conducted in such a way as to minimize or eliminate the interception of communications other than the type described hereinabove; said interception shall terminate no later than thirty days from the beginning of interception."

Defendants have brought motions to suppress all evidence, including most particularly the communications intercepted as a result of both wiretap orders. The motions have now been pared to the singular contention that the initial sworn application and affidavit did not demonstrate a basis upon which the court could determine the existence of "special need" for wiretap on the public telephones, and therefore the order was contrary to N.J.S.A. 2A:156A-11. Merged in this contention is the argument that the showing of probable cause was insufficient to justify an electronic surveillance over the two public telephones in the broad and unrestricted manner permitted by the order of May 28, 1970,

and therefore violated the Fourth Amendment of the Federal Constitution prohibiting unreasonable searches.

The pertinent statutory provision is N.J.S.A. 2A:156A-11, viz:

If the facilities from which a wire communication is to be intercepted are public, no order shall be issued unless the court, in addition to the matters provided in section 10 above, determines that there is a special need to intercept wire communications over such facilities.

This language clearly indicates that the standard of "special need" was intended to supplement those encompassed in section 10 of the act. Section 10 fashions the general requirements for any proposed interception of oral or wire communications. The facility must be designated and there must be a judicial determination based upon adequate facts of its use in connection with the particular offense or its leasing, listing or common use by the suspect; the recent or "continuing criminal activity" of the "person whose communication is to be intercepted"; the likelihood that the interceptions will reveal conversations concerning the offense; and the inutility of conventional investigative techniques. What was intended in section 11 to be embraced by "special need" as an addendum to these standards imposed by section 10 is not self-relevatory. Under such circumstances an examination of "the pertinent constitutional and legislative history for aid in ascertaining the true sense and meaning of the language used" is invited. Lloyd v. Vermeulen , 22 N.J. 200, 206 (1956).

The act, which was passed as L. 1968, c. 409, had been introduced as Senate Bill No. 943. This bill superseded earlier Senate Bill No. 897 which had been the subject of a report by the Senate Committee on Law, Public Safety and Defense, Report on Senate No. 897 Electronic Surveillance (October 29, 1968). The replacement of S. 897 was felt by the Committee to be required by the passage on June 19, 1968 of ...

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