Defendant, charged with disorderly conduct for making annoying and harassing telephone calls under N.J.S.A. 2A:170-29(4),*fn1 now moves to suppress evidence of his identity obtained as a result of an alleged illegal telephone trace. He contends that the trace was in violation of the Fourth Amendment of the United States Constitution and of N.J.S.A. 2A:156A-1 et seq. , the New Jersey Wiretapping and Electronic Surveillance Control Act. Specifically, he complains that the State and the New Jersey Bell Telephone Company (company) illegally used tracing equipment to detect his telephone number without benefit of a search warrant or court order.
The description of the company's tracing equipment and method used to locate harassing callers is here omitted since State v. Hibbs , 123 N.J. Super. 152 (Cty. Ct. 1972), aff'd 123 N.J. Super. 124 (App. Div. 1973), comprehensively covers the subject.
The motion presents the issue of whether the use of a telephone company's tracing equipment to record the origin of telephone calls from defendant to a complainant-subscriber is a "search" within the meaning of the Fourth Amendment. The court however must first determine whether the degree of state involvement with the challenged conduct is sufficient to trigger constitutional consideration.
WAS STATE ACTION HERE INVOLVED?
The Fourth Amendment's proscription against unreasonable searches and seizures functions to limit official powers and to deter governmental abuses. Burdeau v. McDowell , 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). The exclusionary rule of evidence, derived from the Fourth Amendment and made applicable to the states through the Due Process Clause of the Fourteenth Amendment, is designed to implement this policy. Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The impact of Mapp , however, does not extend to searches conducted by private individuals. State v. Robinson , 86 N.J. Super. 308, 318 (Law Div. 1965); Geniviva v. Bingler , 206 F. Supp. 81, 83 (W.D. Pa. 1961). Accordingly, the Fourth and Fourteenth Amendments do not require the exclusion of evidence obtained through private action. Del Presto v. Del Presto , 97 N.J. Super. 446 (App. Div. 1967); Barnes v. United States , 373 F.2d 517 (5th Cir. 1967). Evidence gathered solely through nongovernmental effort can be reported or surrendered to the police without violating the defendant's constitutional right "regardless of the means by which the civilian discovered the evidence." State v. Frank , 112 N.J. Super. 592, 594 (App. Div. 1971).
It is equally clear, however, that joint participation between private citizens and police officers is sufficient to bring such conduct within the purview of the Constitution. United States v. Price , 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966); State v. Scrotsky , 39 N.J. 410 (1963); Stapleton v. Los Angeles Cty. Superior Court , 70 Cal. 2d 97, 73 Cal. Rptr. 575, 477 P. 2d 967 (Sup. Ct. 1969). The minimal degree of official involvement with private action needed to activate Fourth Amendment safeguards is set forth in United States v. Clegg , 509 F.2d 605 (5 Cir. 1975). It was there held (at 609) that "only when the government has preknowledge of and yet acquiesces in a private party's conducting a search and seizure, which the
government itself, under the circumstances, could not have undertaken" does the problem of compliance with Fourth Amendment standards arise. (Emphasis supplied.) If the facts support this threshold level of tacit cooperation, state action would exist for purposes of this argument.
A stipulation by the parties that law enforcement officials neither participated nor intervened in any stage of the tracing operation effectively resolves this inquiry. It is clear that police and the prosecutor's office were not notified of the investigation's inception, nor was their approval or authorization ever sought. The use of the tracing equipment was exclusively within the expertise and control of the company, initiated by the complaint of the telephone subscriber. It was operated pursuant to the company's internal annoyance call program, in existence since 1965. State v. Hibbs, supra 123 N.J. Super. at 156.
Since nonparticipation by the State in the trace is conceded, defendant's state action argument rests solely on the legal implication of the State Board of Public Utility Commissioners' (PUC) regulatory authority over the company. Defendant argues that by virtue of the regulatory supervision actions of the company are attributable to the State.
The mere fact that a public utility is subject to greater regulation than other private corporations or private individuals does not necessarily imply state action whenever the utility acts. Jackson v. Metropolitan Edison Co. , 419 U.S. 345, 350, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). See also, Moose Lodge No. 107 v. Irvis , 407 U.S. 163, 173, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Lucas v. Wisconsin Electric Power Co. , 322 F. Supp. 337 (E.D. Wis. 1970), aff'd 466 F.2d 638 (7 Cir. 1972), cert. den. 409 U.S. 1114, 93 S. Ct. 928, 34 L. Ed. 2d 696 (1973); Doe v. Bridgeton Hospital Ass'n , 130 N.J. Super. 416, 431 (Law Div. 1974) certif. granted 69 N.J. 85 (1975). In testing the existence or nonexistence of state action the inquiry should not turn on the relationship between the private entity and the state in general but should focus on the relationship
between the state and the challenged conduct of the regulated entity. Jackson v. Metropolitan Edison Co., supra 419 U.S. at 351, 95 S. Ct. 449. The court must therefore determine whether the state has significantly involved itself in the alleged illegal tracing program of the telephone company. See Moose Lodge No. 107 v. Irvis, supra 407 U.S. at 173, 92 S. Ct. 1965.
Jackson presented a situation where an electric company discontinued service to a subscriber due to alleged arrearages. Such business practice was approved by the state public utilities commission. The Supreme Court held that even though the utility was subject to extensive regulation in many particulars and enjoyed a monopoly in its service territory state action did not exist. The court based its decision, in part, on the fact that no relationship existed between the company's action and its monopoly status or ...