This is a motion by defendants pursuant to 18 U.S.C.A. § 2518(10) and N.J.S.A. 2A:156A-21 to suppress at trial (a) evidence of telephone conversations overheard and taped, and (b) evidence of gambling paraphernalia seized under search warrants issued partially on the basis of the telephone conversations.
At noon on October 5, 1971 the Kearny Police were advised by a local resident that he heard considerable static and strange voices on his daughter's telephone. "Fearful of being robbed," he alerted the police.*fn1 The police, on invitation, listened in on the telephone and overheard extensive evidence of horse-race betting at unknown locations. They then recorded gambling oriented conversations by means of a cassette tape
recorder attached with a suction cup and induction coil to the back of the telephone receiver. With the information provided by the conversations the police pressed their search for the illicitly used telephones. A nearby duplex apartment where defendants lived side by side became the focus of the police investigation. Search warrants were issued on October 6, 1971. A raid on defendants' premises netted implements of gambling and large sums of money. Both defendants were indicted for bookmaking, N.J.S.A. 2A:112-3, and defendant Orr was also indicted under another provision of the same statute for keeping a place to which persons may resort for gambling.
Defendants contend that the police without having first obtained a court order illegally intercepted and taped telephone conversations, in violation of the Omnibus Crime Control Act of 1968, Title 3, Wiretap Provisions, 18 U.S.C.A. § 2510 et seq. and the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq.
The State's position is that the actions of the police in listening to and taping the conversations heard over the citizen's telephone did not come within the proscription of federal or state law since no "interception" of conversations, as defined in the statutes ever took place.
Both statutes are aimed at the willful interception and revelation of wire or oral communications where privacy is an anticipated concomitant of the instrument's use. The language of the federal statute is identical with that used in N.J.S.A. 2A:156A-3(a), which reads:
Except as otherwise specifically provided in this act, any person who:
a. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; * * *
shall be punished as provided by law.
Thus this court must determine whether there was a willful interception of telephone conversations and improper disclosures of such conversations.