This is a motion by defendants to suppress judicially sanctioned telephone interceptions and evidence derived from such interceptions. A broad and multi-faceted attack on the wiretap orders and their execution is launched under 18 U.S.C.A. § 2510 et seq. , the "Omnibus Crime Control Act of 1968," and N.J.S.A. 2A:156A-1 et seq. , the "New Jersey Wiretapping and Electronic Surveillance Control Act."
The controversy arises out of an investigation into an alleged gangland murder of Alfred Nardone in New York City on April 22, 1974. Prior to Nardone's death a wiretap of a public phone at the 78 Club in Jersey City (hereinafter club), made during a drug conspiracy investigation, uncovered evidence of a relationship between an Edward Murphy and Nardone. After Nardone's demise the police believed that if they obtained authorization to tap phones in Murphy's home, evidence connecting Murphy to the slaying would be forthcoming.
A wiretap order for Mrs. Murphy's phones was approved on July 11, 1974. During that electronic surveillance evidence of gambling operations in the New York-New Jersey area came to the fore. Additional court-authorized extensions of the Murphy interception and subsequent wiretaps on defendant Santarsiero's phone took place, resulting in the indictment of defendants for conspiracy to violate the State's gambling laws.
Defendants' attack raises several issues not previously decided by our courts. Since the legality of later electronic surveillances in this case is dependent, in part, upon the validity of preceding ones, Wong Sun v. United States , 371 U.S. 471,
83 S. Ct. 407, 9 L. Ed. 2d 441 (1962), the court will begin its discussion with the original wiretap of the public telephone facility at the club. In aid of understanding, the issues will be set out with subheadings.
Did the court order to wiretap the club phone and the execution of it violate defendants' rights?
During the monitoring of the club facility from April 4, 1974 to the date Nardone died several telephone calls were intercepted between Nardone and other individuals. Several of the conversations, and particularly one between Murphy and Nardone, were relied upon in the affidavit submitted to the judge to establish probable cause for the order to tap the Murphy phones. All defendants contest the validity of the club wiretap on the ground that the overhearing of the communications of Nardone went beyond the scope of the wiretap order.
Aside from the legal sufficiency of defendants' argument the court initially observes that Prins and Santarsiero have no standing to challenge the legality of the club wiretap order and its execution. Any alleged defect in that regard is of no benefit to these two defendants since they are not "aggrieved persons" under N.J.S.A. 2A:156A-2(k). That statute defines an aggrieved person as one "who was a party to any intercepted wire or oral communication or a person against whom the interception was directed."
Prins and Santarsiero do not qualify as "parties" to any of the intercepted conversations, nor is there any evidence to indicate that either is a person "against whom" these interceptions were directed.
In Alderman v. United States , 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the court was called upon to determine which persons were entitled to relief when evidence was obtained from an alleged illegal electronic eavesdropping. The Supreme Court, in reiterating the rule
enunciated in Jones v. United States , 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), granted standing only with regard to (1) conversations in which the accused himself participated, or (2) all conversations occurring on the accused's premises , regardless of whether he participated in the particular conversations in any way.
An aggrieved party, then, is one who has been the target of a search and seizure by electronic surveillance, and is to be distinguished from one who merely claims prejudice through the use of evidence gathered as a consequence of a search and seizure directed at someone else. State v. Cocuzza , 123 N.J. Super. 14, 24 (Law Div. 1973). In that case it was held (at 25) that a defendant "may not 'vicariously' assert such personal Fourth Amendment rights of codefendants who may have been affected by the defective initial wiretap order."
Murphy, however, does have standing to attack the legality of the club wiretap since he was a party to a conversation within the meaning of N.J.S.A. 2A:156A-2(k).
Murphy contends that since no court authorization was sought to intercept the specific telephonic communications of Alfred Nardone over the public coin-operated telephone at the club, the order without naming Nardone was in violation of the Fourth Amendment to the United States Constitution. If defendant's contention is to be construed as suggesting that affidavits and court orders must particularize and identify each and every individual whose conversation is to be overheard, then it must necessarily fall of its own weight. The United States Supreme Court has recently held that 18 U.S.C.A. § 2518(1)(b), the federal counterpart of N.J.S.A. 2A:156A-12(b), requires the name of a specific person in a wiretap application only when law enforcement officials believe that such an individual is actually committing the offense for which the wiretap is sought. United States v. Kahn , 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974). Further "when there is probable cause to believe that a particular telephone is being
used to commit an offense but no particular person is identifiable, a wire interception order may, nevertheless, properly issue under the statute." 157, 94 S. Ct. at 985. The authority to intercept is not limited to conversations between a party named in the order and others. Rather, assuming the substance of probable cause, the conversations of everyone using the telephone may be intercepted. Accordingly, the fact that Nardone was not named in the club order does not in any way diminish the right of the State to utilize the fruits of conversations in which Nardone participated.
Murphy essentially complains of the overbreadth of the court order to tap. He alleges that the failure to name Nardone in the order to tap resulted in a virtual general warrant to intercept all calls and is illegal. By its own terms the wiretap order of the club conferred authority to intercept only communications "relating to" certain offenses. Moreover, such interceptions were authorized only at "such time when it has been established through contemporaneous physical surveillance that one or more of the principal suspects have been observed to enter the club." Such interceptions were authorized only at "such times as it be determined by the use of a first name, last name, nickname or voice identification of one of the principals." The time allowed for interception was limited from 10 A.M. to 3 A.M. In light of the above restraints and limitations imposed by the issuing judge, the wiretap order for the club interceptions was not overbroad or general on its face. The time and manner by which the order was to be executed are sufficiently specific to overcome any allegation of unfettered discretion. It can hardly be said that the executing agents were left free to seize at will every communication that came over the wire.
Murphy's reliance on Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), is misplaced since in Katz the surveillance was void ab initio because of a lack of court authorization.
The court therefore concludes that the club wiretap was in all respects legal and proper.
Are Defendants Entitled to a Plenary Hearing to Test the Sufficiency of the Affidavit Submitted to Support the Murphy Order to Wiretap?
The court now turns to the Murphy wiretap. Defendants assert the right to a plenary hearing to determine whether or not the affidavit, submitted in the application for the Murphy wiretap, contains willful, deliberate and intentional misrepresentations. Specifically, they assert that a certain communication relied upon by the affiant inaccurately describes one of the parties as Nardone. They also attack the truthfulness of the affiant's statement that phone calls between the parties continued to the date of the application for the court order to wiretap.
Among state jurisdictions there is a split of authority as to whether a defendant can attack the truth of facts set forth in an affidavit which is sufficient on its face. Note, 13 Am. Crim. L. Rev. , 117, 135, n. 104. In State v. Petillo , 61 N.J. 165 (1972), in the context of a search warrant issue, our Supreme Court denied defendant the right to such plenary hearing. The court held that proof of factual assertions contained in an affidavit submitted in support of an application for a search warrant may not be controverted on a subsequent motion to suppress incriminatory evidence seized on execution of the warrant. "Once that test is met to the satisfaction of the judge, relitigation of the truth of the factual basis for issuance of the warrant should not be permitted." 61 N.J. at 174.
Based on the above, defendants' motion for a plenary hearing to determine the veracity of the allegations contained in the affidavit is denied.
Was there probable cause for the issuance of the Murphy wiretap order?
The court order which authorized the wiretapping of Mrs. Murphy's phones was based upon an affidavit alleging probable cause to believe certain persons participating in the conspiracy to murder Al Nardone "have been and will continue to use said telephones." In testing the validity of such order the court must be satisfied that the probable cause requirements of N.J.S.A. 2A:156A-10 have been met. That statute mandates that the affidavit state facts sufficient to support a finding of probable cause to believe that (1) a crime has been or is going to be committed, and (2) conversations relating to that crime will be heard over the telephone facility sought to be tapped.
The existence of probable cause must be found within the affidavit itself. A trial judge cannot go beyond the "four corners" of the affidavit in this determination. State v. Petillo, supra at 174. Thus the information asserted therein must be examined with scrutiny, circumspection and without the benefit of hindsight.
Probable cause under the Fourth Amendment exists "where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Berger v. New York , 388 U.S. 41, 55, 87 S. Ct. 1873, 1881, 18 L. Ed. 2d 1040 (1967). In assessing whether probable cause exists, the court must consider the totality of the circumstances as outlined in the affidavit, the background of information the affiant already had and his specialized experience. State v. York , 116 N.J. Super. 440, 447 (App. Div. 1971); State v. Kasabucki , 52 N.J. 110 (1968). Here the affiant sets forth at length in the affidavit his training and experience in the field of homicide investigation and, in particular, investigations of organized crime
related homicides. As a result of this background, affiant asserts a special familiarity with the "entire modus operandi of the organized crime execution," including "locations, types of weapons, method of inflicting wounds and apparent reasons for such executions." It is from this perspective that the reasonableness of affiant's assertion that Nardone was a victim of a gangland execution is to be assessed.
In reviewing the facts set forth in the affidavit, the specialized knowledge of the affiant must be taken into account. It must also be recognized that affiant's opinions are based on his experience and expertise in interpreting the significance of information he has obtained. His conclusions therefore are not to be taken lightly.
In reaching the issue of probable cause the court is obliged to consider the results of independent investigations which might tend to establish or corroborate prior suspicions. Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). On this account the court notes that the affidavit contains information obtained from the widow to the effect that Nardone had cut short his Florida vacation to be home in New Jersey on April 22, the date of his death, because "he had a big deal going." That very night Nardone informed his wife that he had to go over to New York and meet the "Irishman Eddie -- the guy who had 2 heart attacks." "Eddie" was later identified from the substance of prior conversations to be defendant Murphy.
The affidavit also recounted an interview with Allie Nardone, nephew of the deceased, in which he told investigators that his uncle "was afraid of some person or persons but that the deceased did not volunteer specific reasons for fear other than money." The nephew also stated that while in Florida in April his uncle said he had to come back to this area (New York-New Jersey) to "whack a bad guy." The nephew felt that his uncle's death was a result of a "fall-out" between his uncle and former associates. He also referred to Tony Prins as his uncle's "protector" and to the fact that if Prins was out of jail his uncle would not have been killed.
Incorporated in the affidavit were portions of conversations between Nardone, Murphy and Nardone's nephew Allie, overheard pursuant to the court-authorized wiretap of the club's public telephone. In these communications the deceased Nardone constantly asked about the status of the "Board," a term which the affiant believed referred to a meeting between various factions of organized crime to discuss problems and offer a defense for actions taken. Nardone expressed grave concern over an impending matter and desired the moral support of his nephew.
After a check of all toll calls made from the Murphy phones the affiant alleged that he perceived a "pattern of phone calls" to and from Murphy (who was to meet Nardone the night of his death), to and from Prins (the alleged "protector" of Nardone), and to the J & J Damiano Bar, 39th St., New York (the location of the "big guy" referred to in an earlier intercepted conversation, who had control over the "Board"). It was the opinion of the affiant that the recited pattern indicated "an interrelationship between these parties and locations" that "pertains directly to the reason for and the procurement of the murder of Al Nardone."
It was also the affiant's opinion that Nardone's actions and comments were all related to an underlying disagreement or problem he was having with someone, which disagreement was going to be the subject of the Board meeting where Nardone's presence was expected.
The court is of the opinion that the independent investigation herein dissipated enough of the ambiguities of the prior taps disclosures and sufficiently supplemented the meaning of the conversations to warrant the issuing judge's determination of probable cause.
It is clear that there exists no single element determinative of the reasonableness of the action taken. Consideration of the various factors separately shows no one factor in itself sufficient to establish probable cause. The critical telephone ...