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State v. Luciano

Decided: March 18, 1977.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOYCE ARLENE LUCIANO, DEFENDANT-RESPONDENT



Halpern, Allcorn and Botter. The opinion of the court was delivered by Botter, J.A.D.

Botter

Pursuant to leave granted by this court*fn1 the State appeals from the trial judge's order of November 29, 1976 suppressing certain evidence against defendant Joyce Arlene Luciano which had been procured pursuant to orders authorizing telephone wiretaps and electronic interception of oral communications by "bugging" devices. The orders had been entered in purported compliance with the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. Luciano and four other defendants, including the two principal targets of the investigation, Anthony Carminati and Vincent Toronto, were subsequently indicted for loansharking (N.J.S.A. 2A:119A-1) and related offenses.

The trial judge ruled that Luciano was a person whose identity was "known" prior to the entry of certain intercept orders and therefore, pursuant to N.J.S.A. 2A:156A-12(b), she should have been named in orders which authorized interception of her communications and those of others believed to be engaged in the criminal scheme. The trial judge suppressed evidence against Luciano that had

been seized pursuant to orders for electronic surveillance entered in January, February, March and April of 1975.

The first telephone wiretap order was signed by an authorized judge (N.J.S.A. 2A:156A-2(i)) on December 13, 1974. It allowed the wiretapping of two telephones to intercept communications of Carminati and Toronto and other persons engaging in illegal gambling, bribery and loansharking activities and conspiracy to commit these offenses. The telephones were listed to 803 Building Maintenance, Inc. at its offices in Englewood Cliffs, New Jersey. Thereafter, on January 4, 1975 an application was made for an order authorizing electronic interception of oral, nontelephonic conversations taking place at the same offices which were used by Carminati and Toronto to further their alleged criminal operations. In the affidavit supporting this application Luciano was mentioned only as the "receptionist" at those offices. Despite the elaborate recitation of details disclosed by the prior investigation, nothing in the affidavits of December 13, 1974 and January 4, 1975 indicated any knowledge of Luciano's involvement in the criminal activity.

Defendant Luciano was not a known subject whose conversations concerning criminal activity under investigation were the target of the wiretap and "bugging" orders of December 13, 1974 and January 4, 1975. N.J.S.A. 2A:156A-12(b) requires the order to state the identity or description of "the person, if known, whose communications are to be intercepted * * *." On January 4, 1975 Luciano was not such a person. At that time the investigators did not have "probable cause to believe" that she was a person "committing the offense" whose "communications [were] to be intercepted." N.J.S.A. 2A:156A-9 and 10. See State v. Cirillo , 149 N.J. Super. 577 (App. Div., 1977), and cf. United States v. Kahn , 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974), interpreting a similar provision in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. ยง 2518(4)(a). Thus, the trial

judge erred in concluding that Luciano's communications were unlawfully intercepted by the police while operating under the authority of the January 4 order.

However, Luciano's role in the criminal enterprise was discovered on January 7, 1975. As revealed in the affidavit supporting the first application to extend the December 13 wiretap order, Luciano was overheard on January 7, 1975 discussing weekly payment records of alleged loanshark victims. (Paragraph 14 of "renewal affidavit of application" dated January 15, 1975.) She was also named in affidavits supporting other extension applications made in February, March and April. From January 7, 1975 onward Luciano should have been named in orders extending the electronic surveillance since there was probable cause to believe she was engaged in the criminal activity being investigated and it was expected that her conversations would be intercepted by the electronic devices. N.J.S.A. 2A:156A-12(b); N.J.S.A. 2A:156A-9; State v. Cirillo, supra; cf. United States v. Donovan , U.S. , , 97 S. Ct. 658, 668, 50 L. Ed. 2d 652, 668 (1977).

N.J.S.A. 2A:156A-21(b) provides that an aggrieved party -- that is, one who was a party to any intercepted wire or oral communication or against whom the interception was directed (N.J.S.A. 2A:156A-2(k)) -- may move to suppress the contents of an intercepted communication on the ground that the authorizing order is "insufficient on its face." In this case we cannot say that the intercept orders were insufficient on their "face." Cf. United States v. Donovan, supra , U.S. at , 97 S. Ct. at 671, 50 L. Ed. 2d at 671. Since the orders do not indicate that defendant was a person who was a target of the interception and whose identity was known, it cannot be said that the orders were facially insufficient as to Luciano. However, N.J.S.A. 2A:156A-21(a) allows the motion to suppress to be brought if the communication was "unlawfully intercepted." Because of the serious threat to the liberty and privacy of the public posed by electronic

surveillance, it is important to insure strict compliance with all provisions of the Electronic Surveillance Control Act. We conclude, therefore, that suppression of evidence should be considered an available remedy for the interception of communications of a person who was a known target of the electronic surveillance but who was not named in the authorizing order. This view is consistent with the intent of the Legislature as expressed in N.J.S.A. 2A:156A-21(a). Moreover, strict ...


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