Halpern, Allcorn and Botter. The opinion of the court was delivered by Botter, J.A.D.
Based upon information obtained through intercepted telephone conversations, defendants were indicted for conspiracy to violate the State's gambling laws. Thereafter, evidence against defendants, Edward Murphy, Abraham Prins and Rocco A. Santarsiero, which derived from the initial wiretap of telephones registered to Murphy's wife, Mary E. Murphy, was suppressed by the trial judge. This evidence had been obtained through wiretap orders against the Murphy and Santarsiero telephones entered in purported compliance with the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. The State has appealed from the order of suppression, leave to appeal having been granted by us, whether or not needed. See R. 2:2-3(a); N.J.S.A. 2A:156A-21.
The order to suppress was granted on the ground that the initial order authorizing the wiretap of the Murphy telephones did not name Edward Murphy as a person whose conversations were to be intercepted. Opinion below, 137 N.J. Super. 404, 424-428 (Law Div. 1975). The trial judge held that all subsequent wiretaps were tainted by the
illegality of the initial order. Defendants contend that the order to suppress was properly granted because the State also failed to make formal service upon them of an inventory of information within 90 days after the termination of the last wiretap order or extension thereof, as required by N.J.S.A. 2A:156A-16. Defendants Prins and Santarsiero also cross-appeal from adverse rulings of the trial judge in other respects. The cross-appeals will be discussed below.
Many of the relevant facts are contained in the trial judge's opinion, reported in 137 N.J. Super. 404. The trial judge found that there was probable cause for the issuance of the first wiretap order directed to the telephones at Murphy's home. The act is designed to allow electronic interception of communications for the purpose of uncovering evidence of certain crimes designated in N.J.S.A. 2A:156A-8, including murder, gambling, loansharking and other offenses, and conspiracy to commit said offenses. N.J.S.A. 2A:156A-8; N.J.S.A. 2A:156A-10(b).
The affidavit in support of the first application detailed evidence concerning the "gangland" execution of Alfred Nicholas Nardone and Murphy's likely involvement in and knowledge of that offense. Nardone's body was found in New York City behind the steering wheel of an automobile with three bullets in his head. His body was found within one hour of his leaving home at 8:20 P.M. on April 22, 1974, after telling his wife that he was on his way to meet defendant Murphy in New York City. The affidavit established: that Nardone spoke to Murphy on April 9, 1974; that Nardone's associate or "protector" was Abraham "Tony" Prins; that around the time of Nardone's murder Prins was in the New Jersey State Prison for revocation of his parole; that while there Prins had been assigned to the "Inmate Legal Association" and that 23 collect calls were made from telephones at the office of the Inmate Legal Association to Murphy's home telephone during April 1974, before and after Nardone's murder; and that calls were made
from Murphy to the Association's telephones in the same month. Sixteen collect calls were also made to Murphy's telephones in May 1974 from the Inmate Legal Association's telephones in State Prison. A pattern of evidence, including an interview with Murphy, gave reason to believe that Nardone, Murphy and Prins were probably involved in organized crime and that Murphy was concealing information that he had concerning Nardone's murder.
The initial wiretap of the telephones at the Murphy home established that Murphy was engaged in illegal gambling activity. Extensions of the wiretap revealed continuing evidence of Murphy's participation in illegal gambling activity as well as his involvement in negotiations for the sale of stolen property and other criminal offenses. The wiretaps also disclosed that defendant Rocco A. "Rocky" Santarsiero was also involved with Murphy in such activity. Accordingly, application was made to wiretap the telephone facilities at Santarsiero's residence.
We consider first the contention that the failure to name defendants in the wiretap orders warranted the suppression of evidence. The first and subsequent affidavits recited in detail Murphy's activity, his relationship to the offenses being investigated, and the reason for seeking an order authorizing the electronic interception of his conversations on telephones listed in his wife's name at his home. The affidavits clearly indicated that Murphy was a target of investigation and that the telephones were used primarily by him. In these circumstances he should have been named in the wiretap orders as well as the affidavits supporting the applications. N.J.S.A. 2A:156A-12(b); N.J.S.A. 2A:156A-9; State v. Cirillo , 146 N.J. Super. 577 (App. Div. 1977); cf. United States v. Donovan , U.S. , 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977), interpreting similar provisions in the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2518(4)(a). The same applies to defendant Santarsiero. The issue is not as clear as to Prins, since no wiretap was directed toward a telephone that he was
using. Nevertheless, since conversations of interest between Prins and Murphy could have been anticipated, we conclude that his conversations were also a target of the investigation and he should have been named in the ...