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In re an In-Progress Trace of A Wire Communication to Be Made to and Intercepted Over Telephone Facility Number

Decided: December 26, 1975.

IN THE MATTER OF AN IN-PROGRESS TRACE OF A WIRE COMMUNICATION TO BE MADE TO AND INTERCEPTED OVER TELEPHONE FACILITY NUMBER, ETC.


Allcorn, Kole and Gaulkin. The opinion of the court was delivered by E. Gaulkin, J.A.D. (retired), Temporarily Assigned.

Gaulkin

The question before us is whether the New Jersey Bell Telephone Company (company) may be ordered by the court to make, at the expense of the State, an "in-progress trace" in aid of a telephone wiretap which is being conducted under a warrant issued pursuant to N.J.S.A. 2A:156A-1 et seq. (hereinafter, the wiretap law).

Application for such an order was denied by a judge of the Superior Court. We granted the State's application for leave to appeal and heard the argument of the appeal forthwith.

In form, the application complied with all of the requirements of the wiretap law. It was supported by an affidavit of a detective which set forth that a wiretap order had been issued under the wiretap law and interception thereunder was taking place; the conversations intercepted revealed that the tapped telephone was being used for accepting illegal lottery and bookmaking bets; every day at approximately 4 P.M. a female telephones the tapped number and "in each of these phone calls, the female making the incoming call receives a series of lottery bets from the individuals sitting at * * *" the tapped phone; in the detective's expert opinion, the tapped telephone is being used by "a 'sitter' * * * a person who sits by a telephone and accepts bets * * *. [T]he female who calls * * * every afternoon at approximately 4:00 P.M. is higher up in the syndicated gambling operation * * *. She * * * calls a number of sitters to get the bets they have accepted * * *"; the State is unable to identify the female caller without an in-progress trace; such a trace would enable it to identify the female "higher-up" and possibly the bankers and controllers of the operation and their locations, which otherwise the State would not be able to determine. The company admits that "Only a trace can accomplish this and only the Company * * * can accomplish a trace * * * using equipment and techniques wholly under its control which the enforcement people have

no access to, and have no expertise in using, even if they had access."

An in-progress trace (hereafter trace) is the determination of the origin of a call coming in from an unknown to a known telephone. Such tracing is described in State v. Hibbs , 123 N.J. Super. 152, 154-159 (Cty. Ct. 1972), aff'd 123 N.J. Super. 124 (App. Div. 1973). The company's brief concedes that "it is not illegal for it to conduct a trace and * * * the trace, if successful, would enable the prosecutor to penetrate to a higher level * * * the organization whose activities he is pursuing and which in the light of the evidence already gathered is clearly engaged in a continuous and illegal operation * * *." It freely admits that in the past it has made many traces without court order, usually but not solely in cases involving obscene or annoying calls, threats and kidnapping. However, it contends that (1) in the absence of a statute, it may not be compelled to make a trace, and (2) assuming that a statute could constitutionally compel performance, no such statute exists.

We disagree. To begin with, even without express statutory authority, we think the company can be compelled to make a trace, by grand jury subpoena or by court order similar to a search warrant. See In re Addonizio , 53 N.J. 107 (1968); Schlossberg v. Jersey City Sewerage Auth. , 15 N.J. 360 (1954); Merchandise Warehouse Co. v. Bowers , 15 Ohio op. 2d 116, 173 N.E. 2d 728 (Cty. Ct. 1960), app. dism. 171 Ohio St. 500, 172 N.E. 2d 310 (Sup. Ct. 1961); cf. 58 Am. Jur., Witnesses , § 29 at 39:

Where the source of desired information is exclusively or peculiarly within the control of the witness, the court, acting within reasonable bounds and in the exercise of a sound discretion, may require the witness to acquaint himself with the information and to communicate it to the court.

For example, in United States v. Friedman , 388 F. Supp. 963 (W.D. Pa. 1975), the court ordered a bank to search

the records of all of its 102 branch offices, provided the government paid the expense. In Oklahoma Press Publ. Co. v. Walling , 327 U.S. 186, 209, 66 S. Ct. 494, 506, 90 L. Ed. 614, 630 (1946), the court said,

The requirement of 'probable cause, supported by oath or affirmation' literally applicable in the case of a warrant is satisfied, in * * * an order for production, by the court's determination that * * * the documents sought [by subpoena] are relevant to the inquiry.

Moreover, says the State, our wiretap law does authorize the court to compel a trace in aid of a legal wiretap, and for that purpose application may be made (as it was here) in accordance with our wiretap statute, especially N.J.S.A. 2A:156A-12, as amended by L. 1975, c 131 (approved and effective June 30, 1975). The amendment of § 12 provides:

An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier shall furnish the applicant forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier is affording the person whose communications are to be intercepted. Any communication common carrier furnishing such facilities or technical assistance shall be compensated therefor by the applicant ...


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