Defendants Abalsamo and Boccia have filed a motion to suppress evidence obtained through wiretaps. The relevant facts are as follows:
On January 8, 1976, Assignment Judge Blake authorized the interception of wire communications of Robert Sanchez and other unidentified persons from telephone number 525-9402. On January 21, 1976 that order was amended by Judge Blake, enlarging the hours of daily surveillance for the balance of time established by the initial order.
On January 30, 1976 Judge Blake signed two additional orders authorizing wire interceptions on telephone numbers 525-9665 and 869-6963 for a 20-day period. In both instances the known targets of the electronic surveillance were
identified in the moving papers and the orders themselves as Robert Sanchez (Jerry, whose last name was unknown) and Bob Ennis.
On February 7, 1976 Judge Blake amended the order authorizing wire interceptions of telephone number 869-6963 by extending the hours of daily surveillance for the balance of time established by the initial order and enlarging the number of persons whose communications could be intercepted. With the exception of William Arndt, these additional "targets" were identified by first name only, or by code names monitored during prior interceptions.
All electronic surveillance having been terminated on or about February 20, 1976, Judge Blake, on April 21, 1976 and May 17, 1976, signed orders authorizing the service of inventories on Robert Sanchez, William Arndt and Dolores Dunn -- the listed subscriber to telephone number 869-6963.
Defendants Abalsamo and Boccia were arrested on February 20, 1976 for conspiracy to violate the state lottery and bookmaking statutes. Both defendants were charged with conspiracy to violate N.J.S.A. 2A:112-3 and N.J.S.A. 2A:121-3, and with conducting a bookmaking operation in violation N.J.S.A. 2A:112-3. The identity of these two unnamed, but overheard, defendants never having been revealed to Judge Blake by the prosecutor's office, neither received inventories of their intercepted communications.
On November 4, 1976, at a pretrial conference, the State was ordered to furnish defendants with all documentary discovery by November 15, 1976, and to provide them an opportunity to listen to all intercepted wire communications no later than November 30, 1976. The State complied with the court order. Following compliance, defendants filed the present motion to suppress the evidence obtained by wiretaps.
At the outset it should be made clear that defendants' motion to suppress is not based on a due process claim of failure to provide adequate notice. United States v. Chun , 503 F.2d 533 (9 Cir. 1974), states that:
The unnamed but overheard are also entitled to Fourth Amendment protection. Specifically, we believe that when the government intends to use the contents of an interception or evidence derived therefrom, to obtain an indictment against an unnamed but overheard individual, such individual must be given notice promptly after the decision to obtain an indictment has been made. At a minimum this notice must include all the information which is contained in a § 2518(8)(d) inventory notice. In this context, the determination of what constitutes 'promptly' should focus on whether the individual has been afforded a reasonable opportunity to prepare an adequate response to the evidence which has been derived from the interception. [at 537-538]
In footnote 8 on page 538 the court goes on to say that:
If the individual has been called as a witness before the Grand Jury, he would have a right at that point to attack the surveillance, see 18 U.S.C. § 3504(a), and notice would be required within a sufficient time prior to his appearance to allow an opportunity to prepare an adequate response. If, however, the individual has not been called as a witness before the Grand Jury, his first opportunity to attack the surveillance would be in preparation for trial. See In Re Grand Jury Subpoena of Fred Vigorito , 499 F.2d 1351 (2d Cir. 1974). Thus notice, as outlined in the test, would not be necessary until a later point in time.
In the present case, defendants were not called as witnesses before the grand jury and, having been provided with full discovery more than three months prior to trial, the due process requirement of adequate notice has been amply complied with.
It should be made equally clear that defendants Abalsamo and Boccia were not "targets" in any of the wiretaps, their identity being unknown to the authorities until after the wiretaps were begun. In State v. Murphy , 137 N.J. Super. 404 (Law Div. 1975), rev'd on other grounds, 148 N.J. Super. 542 (App. Div. 1977), the court, citing U.S. v. Kahn , 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974), stated that affidavits and court orders were not required to particularize and identify each and every individual whose conversation is overheard. N.J.S.A.
2A:156A-9(c), the counterpart of 18 U.S.C.A. § 2518 (1)(b)(iv), 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.
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. [ State v. Murphy, supra , 137 N.J. Super. at 414]
Defendants' counsel admitted in oral argument that the two defendants were not "targets" in the wiretaps and were identified only after the wiretaps were begun through photograph and fingerprint identification. Therefore, defense counsel's reliance on U.S. v. Bernstein , 509 F.2d 996 (4 Cir. 1976), and State v. Murphy, supra , is misplaced.
In Bernstein the court concluded that since the authorities had probable cause to believe defendant was committing a specific crime and would probably be overheard during the course of the wiretap, the failure of the government to name defendant in its affidavit violated 18 U.S.C.A. § 2518(1)(b)(iv), which requires that an application for a wiretap include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." The holding in Bernstein was based on a violation of the identification ...