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In re Trace of a Wire Communication

Decided: April 28, 1978.

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 138 N.J. Super. 404 (1976).

For reversal -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford and Schreiber. Dissenting -- Justices Sullivan and Handler. The opinion of the court was delivered by Schreiber, J. Handler, J., dissenting. Justice Sullivan joins in this opinion.

Schreiber

We are called upon in this case to interpret the technical assistance provision of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-12. More particularly, the issue is whether under that provision a court may order a telephone company to trace a phone call so as to ascertain a phone number (and presumably the identity of the person calling from that number) from which calls are being made to another telephone which has been subjected to a lawful intercept order.

The question arose in a virtually undisputed factual setting. On September 18, 1975 the Assignment Judge of Essex County authorized the prosecutor to intercept a phone used for gambling operations (hereinafter referred to as phone #1) for 30 days. Pursuant to that order, conversations were intercepted from September 20, 1975 to September 24, 1975. When the New Jersey Bell Telephone Company refused the prosecutor's request to make an in-progress trace to ascertain a number (phone #2) from which calls were being made to the intercepted phone, the prosecutor obtained an order to show cause why the company should not be compelled to comply with his request. As disclosed in his moving papers, the prosecutor sought the in-progress trace to identify a person calling the tapped phone. The prosecutor made it clear in the oral argument before the

Assignment Judge that the request was being made exclusively on the basis of the existing order to intercept phone #1. No technical assistance was being sought to tap phone #2.

The Assignment Judge denied the order. He reasoned that the State was "starting a new interception," and that no technical assistance was necessary to intercept phone #1. He stated that he would entertain an application supported by the appropriate affidavits to compel the company to furnish technical assistance to intercept phone #2. The State appealed. Only subsequent to the oral argument before the Appellate Division on the ultimate issue of whether the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A-1 et seq. (hereinafter "New Jersey Act"), authorized an in-progress trace on the basis of an existing wiretap intercept, did that court, sua sponte, request briefs on whether, apart from the statute, a court had the power to compel an in-progress trace. The Appellate Division reversed. 138 N.J. Super. 404 (1975). It first held that the telephone company could be compelled to make a trace "by grand jury subpoena or by court order similar to a search warrant." Id. at 407. Second, it interpreted the technical assistance provision of the New Jersey Act to authorize use of an in-progress trace to obtain information concerning the identity of a party calling to the intercepted phone.

We granted the telephone company's petition for certification. 70 N.J. 144 (1976). The American Civil Liberties Union was granted leave to intervene as amicus curiae and to file a brief.

The New Jersey Act, N.J.S.A. 2A:156A-1 et seq., authorizes the Attorney General, a county prosecutor or the chairman of the State Commission of Investigation to apply for and obtain, under certain circumstances, an order authorizing interception of a wire or oral communication, N.J.S.A. 2A:156A-8. In the order authorizing that interception, the court, upon request, must direct the telephone

company to furnish all " 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," that is, the phone being tapped. N.J.S.A. 2A:156A-12. A fair reading of this language makes it clear that the assistance called for is that necessary physically and mechanically to "accomplish the interception." The word "intercept" is defined as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device." N.J.S.A. 2A:156A-2c. "Contents" is defined to include any information concerning the identity of the parties to such communication. N.J.S.A. 2A:156A-2g. It is clear that contents refers only to the information obtainable through the aural acquisition of the interception.

The nature of the technical assistance which may be compelled under the New Jersey Act is strictly limited. The only assistance sanctioned is that type necessary to make the interception unobtrusively and with a minimum of interference to the phone being tapped. The assistance must be directed to eliminating any disruption of service to the tapped phone in such a manner that the user of that phone will not be aware it is being tapped. The in-progress trace, which is a method of tracing a phone call to the point of origin, is not related to those purposes and does not inch the interception any closer to those objectives.

It is essential to recognize that an in-progress trace in no way monitors a tapped phone. The tracing process identifies electrical paths and mechanical instrumentalities in use in a given time period. It does not disclose whether a communication occurred or, if it did, the aural contents of that communication. It in no way assists in accomplishing interception of the phone being tapped, but, rather, traces a phone call made to a tapped phone back to its place of origin and then prints the number from which the call has been made. See State v. Hibbs, 123 N.J. Super. 152, 154-159 (Mercer Cty. Ct. 1972) (describing mechanics of an in-progress trace), aff'd 123 N.J. Super. 124 (App. Div. 1973).

In this case the phone company had furnished the necessary assistance for an interception and the prosecutor had been successfully tapping phone #1 and recording conversations for four or five days. Apparently that interception had been and was being undertaken unobtrusively and with a minimum of interference. The conversations were being overheard. The request for the in-progress trace was, if anything, a testament to the success of the interception. The mere inability to identify the party who had made the call to the intercepted phone or to understand comments during the conversations does not mean that the interception had not been accomplished. The prosecutor was not seeking assistance necessary to accomplish the interception of phone #1. What he really desired, as reflected in the detective's affidavit on which the prosecutor relied on the motion, was "an electronic surveillance" of the telephone facility which would be revealed by the in-progress trace, that is, phone #2.

Our construction of the act to disallow the in-progress trace sought here accords due deference to constitutional precepts and legislative policy. Wiretap statutes implicating as they do an intrusion into individual rights of privacy, constitutionally and legislatively recognized, should generally be strictly construed. The Fourth Amendment protection from unreasonable searches is well settled. In Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), a decision suppressing evidence obtained by an electronic recording device attached to the outside of a public telephone booth, Mr. Justice Stewart wrote:

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a

"search and seizure" within the meaning of the Fourth Amendment. [389 U.S. at 353, 88 S. Ct. at 512, 19 L. Ed. 2d at 583]

Because of this constitutional principle the United States Supreme Court has construed the federal wiretap act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520) strictly. United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); United States v. Chavez, 416 U.S. 562, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974). See J. L. Cranwell, "Judicial Fine-Tuning of Electronic Surveillance," 6 Seton Hall L. Rev. 225, 266 (1975). The Fourth Amendment to the Federal Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), is restated in the New Jersey Constitution. N.J. Const. (1947), Art. 1, par. 7, and its policy likewise calls for a strict construction of the New Jersey Act. See also State v. Fariello, 71 N.J. 552, 559 (1976).

Furthermore, the New Jersey Legislature has seen fit to condemn tapping a telephone line. A 1930 law made it a misdemeanor to tap or make any connection with a telephone line or to aid any person to cause that to be done. L. 1930, c. 215, § 1, p. 987. This proscription was continued until 1968, see R.S. 2:171-1 (1937) and N.J.S.A. 2A:146-1, when it was repealed, L. 1968, c. 409, § 27, and replaced by a substantially similar ban included in the wiretapping statute under review. See L. 1968, c. 409, § 3. For a case discussing the broad sweep of the former prohibition, see Morss v. Forbes, 24 N.J. 341 (1957). The existing successor provision prohibits any person from wilfully intercepting or procuring any other person to intercept any wire or oral communication except as provided in the New Jersey Act. N.J.S.A. 2A:156A-3. When the federal and state constitutions protect the individual's right of privacy and the Legislature has seen fit to prescribe an all-inclusive

safeguard against wiretaps, it is fitting and proper to hold that the prosecutor comply fully with the conditions under which an exception to the general prohibition may be permitted.

The legislative history of the technical assistance provision accords with the interpretation we have adopted. Since the New Jersey Act was patterned after the federal law, it is instructive first to consider the federal legislation and its interpretation.

It was in 1968 that Congress enacted the provisions under which tapping by federal officers was permitted. 18 U.S.C.A. §§ 2510-2520. The federal statute also authorized the states to enact laws permitting wiretaps provided that as a minimum the federal safeguards be incorporated. 18 U.S.C.A. § 2516(2). Thereafter, New Jersey adopted its act modelled after the federal law. N.J.S.A. 2A:156A-1 et seq. When it was held that a court did not have the power under the federal act to compel a telephone company to assist the government in making an interception, Application of the United States for Relief, 427 F.2d 639 (9th Cir. 1970), Congress promptly amended the law to provide for such technical assistance, the amendment reading as follows:

An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person 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, landlord, custodian, or person is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates. [18 U.S.C.A. § 2518(4)]

No mention of an in-progress trace was made throughout the extensive Congressional proceedings which preceded adoption of the "technical assistance" provision in the federal

law. See, e.g., S.2601, 91st Cong., 2d Sess. (1970); 116 Cong. Rec. 8962, 24460, 25202 (1970); H.R. Rep. No. 91-1303, 91st Cong., 2d Sess. (1970). This omission is understandable because on its face the amendment was addressed only to the help necessary to accomplish the interception unobtrusively and with a minimum of interference to the tapped phone.

In 1975 New Jersey modified its statute to include an amendment with almost identical language. L. 1975, c. 131, § 8. The Statement to the Act declares that the bill added a specific requirement that a communication common carrier could be required to furnish technical assistance in order to conform to the federal law. Senate Judiciary Comm., Statement to S.1417 (May 19, 1975). The State acknowledges that the New Jersey amendment was designed only to conform state law with the federal act.

Though no New Jersey case has been directed to the propriety of an order for an in-progress trace, the relevant federal decisions indicate that an in-progress trace may not be authorized under the act. In Michigan Bell Telephone Co. v. United States, 565 F.2d 385 (6th Cir. 1977), during an ongoing wiretap, the government sought an in-progress trace. Its avowed purpose, as in the instant case, was to identify the higher links in a gambling operation. There, as here, the person whose phone was monitored never called but was always called by his supervisor. The Circuit Court held that installation of in-progress traces could not be ordered under the federal act.*fn1

More importantly, the United States Supreme Court recently agreed that the federal wiretap act does not authorize a compulsive order directing installation of a pen

register.*fn2 United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977). In that case the FBI had, pursuant to court order, tapped two telephones in New York City. Subsequently, after expiration of the court order, it sought permission to operate pen registers on those phones to identify associates and confederates. The United States District Court, although holding that the federal act did not authorize it to compel the telephone company to install a pen register, granted the order on other grounds. Application of United States in Order Authorizing Use of a Pen Register, 416 F. Supp. 800 (S.D.N.Y. 1976). On appeal the Second Circuit held that the telephone company could not be compelled to furnish pen registers under the federal wiretapping law either directly or as a corollary for technical assistance. 538 F.2d 956, 961 (1976). The United States Supreme Court unanimously concluded that the federal act did not cover pen registers. Five justices upheld the order under the All Writs Act, 28 U.S.C.A. § 1651(a).

Noting that every Court of Appeals that has considered the matter has found that pen registers are beyond the scope of the federal act, and citing United States v. Illinois Bell Telephone Co., 531 F.2d 809 (7th Cir. 1976); United States v. Southwestern Bell Telephone Co., 546 F.2d 243 (8th Cir. 1976); Michigan Bell Telephone Co. v. United States, supra; United ...


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