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State v. Molinaro

Decided: November 24, 1971.


Handler, J.s.c. (temporarily assigned).


These are three groups of cases (referred to herein as the Molinaro case, the Ptakowski case and the De Pasque case) in which defendants stand indicted by the State Grand Jury for various gambling offenses. Evidence was obtained through the interception of telephonic communications by the New Jersey State Police under the New Jersey Wiretapping and Electronic Surveillance Control Act, L. 1968, c. 409; N.J.S.A. 2A:156A-1 et seq. Defendants have brought motions to suppress evidence which have been consolidated because they share a single overriding issue.

The indictments charge conspiracy to violate the gambling laws as well as substantive gambling offenses. Each group of cases was initiated by an application for authorization to intercept telephonic communications submitted by the Attorney

General. The application in each case was based upon an affidavit made by a detective of the New Jersey State Police who had engaged in an investigation of suspected offenses. Each affidavit recites the receipt of information from a reliable informant that illegal gambling operations involving bookmaking and lottery were being conducted over particular telephone facilities by an unknown male and other unidentified persons on a daily basis between certain hours. The bookmaker or gambler operating from the particular telephone, while not known to the informant, was said to be associated with other unknown persons or conspirators as part of a larger gambling enterprise. The affidavit further states that on several occasions in the presence of the detective the informant placed bets with the unknown individual over the particular phone. The locations of the particular phones were determined and placed under surveillance. Each affidavit indicates that conventional investigative techniques would be unavailing and also contains a statement that gambling would continue to occur over the particular subject phone and that it was therefore necessary to intercept more than initial conversations and to maintain the interception for not longer than 15 days. Upon these applications orders containing appropriate factual determinations were entered authorizing the interception of telephonic communications. In two of the investigations, upon further application, the interceptions were extended beyond the initial period. Thereafter, utilizing the information obtained, affidavits for search warrants were prepared, the warrants were issued and upon their execution defendants were apprehended, charged and subsequently indicted.

The pivotal issue involves N.J.S.A. 2A:156A-12(f). This states that "[e]very order entered under this section shall require that such interception * * * be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act." On these motions it is contended by all

defendants that the interceptions were unlawful and that all direct and derivative evidence must therefore be suppressed. More pointedly, they urge that in conducting the interceptions herein, every single conversation expressed over the various telephones during the interceptions was overheard and recorded without regard to its content or the identity of the participants, and that this was a violation of N.J.S.A. 2A:156A-12(f).

The position of the State was articulated by Deputy Attorney General Stier, a co-director of the Organized Crime and Special Prosecutions Section of the New Jersey Division of Criminal Justice. He testified that he was responsible for the implementation of the Wiretap Act on behalf of the State Police and that he was mindful of the requirements of N.J.S.A. 2A:156A-12(f). He explained that once a wiretap order has been obtained, the physical location of the monitoring operation or plant is determined and the tape recording machine is then put into operation. At the beginning of each monitoring day the assigned police officer brings a fresh reel of tape and places it on the machine which is then turned on. The device for interception works automatically and is activated by any incoming or outgoing call. The machine is not left unattended in an operating position. The monitor usually has a set of earphones which is plugged into the tape machine and he listens to the telephone conversations through the earphones at the same time the tape machine is recording it. The monitor is instructed explicitly that once monitoring has commenced every conversation is to be overheard and recorded in its entirety. In addition to listening to the intercepted conversations, the monitor also prepares a daily log of each day's interceptions. This log when completed discloses whether a call is incoming or outgoing, the time of the call, the telephone numbers of outgoing calls, a brief synopsis of the contents of each call, the numerical reading of the mechanical counter on the tape machine at the time each call terminated, and a designation as to whether the conversation was "non-pertinent"

in the opinion of the monitor. Each daily log also indicates the time at which monitoring was begun and completed for the day. When monitoring is completed for the day the monitor removes the reel and seals the tape for transmittal to the Electronic Surveillance Unit at New Jersey State Police Division Headquarters in West Trenton, New Jersey.

Stier stated further that a detective working under a superior officer is primarily responsible for all phases of a particular investigation including the wiretap. Detectives assigned in these cases have received special training in organized crime and illegal gambling operations. Additionally, a lawyer who is a Deputy Attorney General assists the investigating detective and his superior officer in the preparation of wiretap applications and affidavits and actively participates in policy decisions connected with the investigation. These three individuals consult together daily during the course of a wiretap with a view toward evaluating the quality of the information obtained through the wiretap as well as other investigative sources. The logs for each day's conversations are reviewed. According to Stier, a policy to be followed in these daily reviews is to determine the hours during which there is the greatest likelihood that the subject telephone will be used for illegal activity; it is thus hoped that monitoring can be undertaken during the time of day when the incidence of incriminatory or evidentiary conversations will be highest. It was contended that this review satisfied the requirements of N.J.S.A. 2A:156A-12(f).

As noted, the critical terms of N.J.S.A. 2A:156A-12(f) are that "the interception of such communications not otherwise subject to interception" under the Wiretap Act be minimized or eliminated. Reference must be made to section 8 of the act which delineates those communications which may be subject to interception. As pertinent to these cases they are communications which would "provide evidence of the commission of the offense of * * * gambling * * * or any conspiracy to commit [such offense] * * * or which

may provide evidence aiding in the apprehension of the perpetrator of * * * [such offense]." N.J.S.A. 2A:156A-8. The original orders and renewal orders authorizing wiretapping in all three cases herein included the language required by section 12(f). An example is the order entered in the Ptakowski case which provided, in pertinent part, that "said interception will * * * be conducted in such a way as to minimize or eliminate the interception of communications other than the type described hereinabove." The "type [of communications] described hereinabove" according to the order referred to "an unknown male and other unknown persons [who] are engaging over a period of time as part of a continuing criminal activity in, and are committing, have committed and are about to commit the offenses of bookmaking, N.J.S. 2A:112-3, conspiracy, N.J.S. 2A:98-1 and 2, and lottery, N.J.S. 2A:121-3; [and] communications evidentiary of such offenses will be obtained through the interception applied for * * *." The communications thus described in the orders were ones which clearly are subject to interception under the Wiretap Act. The question, therefore, is whether communications not so described were intercepted by the State Police and whether, under the language of section 12(f) of the act and the implementing orders, the interceptions must be deemed unlawful.

In the construction of legislation, words and phrases are normally given their generally accepted meaning or common significance. N.J.S.A. 1:1-1; Lane v. Holderman , 23 N.J. 304 (1957). Among the common meanings ascribed to "eliminate" are to remove, expel, exclude, leave out of consideration, or to ignore. 1 Webster, New International Dictionary of the English Language 832 (2d ed. unabridged 1956). "Minimize" has been construed as meaning to make as slight as possible or to reduce to the smallest possible amount or degree. Cf. People v. Kiser , 112 Cal. App. 2d Supp. 903, 245 ...

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