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State v. Barber

Decided: April 10, 1979.

STATE OF NEW JERSEY
v.
PAUL BARBER, DAVID ROBINSON, DEFENDANTS



Loftus, J.s.c.

Loftus

[169 NJSuper Page 28] This is a criminal case involving alleged violations of the Cigarette Tax Act, N.J.S.A. 54:40A-1 et seq. A motion has been made by defendants Paul Barber and David Robinson to dismiss the indictment or, in the alternative, for suppression of intercepted wire communications regarding alleged violations of the Cigarette Tax Act, testimony relating to surveillance of a 1974 Dodge van, New Jersey license No. 859-GSF, as well as all physical evidence recovered from the 1974 Dodge van as a result of a search warrant executed October 16, 1977. The facts relative to this motion are not in dispute.

On September 22, 1977 the Assignment Judge of Essex County signed an order authorizing interception of wire communications at 427 North 11th Street, Newark, listed to J. Sibio, for alleged violations of bookmaking statutes. In the course of intercepting messages concerning bookmaking, police officers overheard conversations relating to the sale of cigarettes at a price that indicated a sale without tax. The police began physical surveillance of the suspect premises, and on October 2, 1977 observed a 1974 Dodge van, license No. 859-GSF, unloading cartons that appeared to be cigarettes.

On October 6, 1977 another order authorizing interception of communications regarding bookmaking was obtained on a phone at 15 Barbara Street, listed to Edward A. Wilson. More communications were intercepted regarding alleged gambling violations. On October 16, 1977 a search warrant was obtained for the premises 427 North 11th Street and for the Dodge van, license No. 859-GSF. The search warrant was executed on October 16, 1977 and 1,213 cartons of untaxed cigarettes were recovered from the van. In addition, large amounts of cash were recovered from the persons of Paul Barber and David Robinson, who were apprehended in the van. Cigarette orders and 22 cartons of cigarettes were recovered from the premises at 427 North 11th Street, Newark.

Subsequently, these matters were presented to a grand jury. In the course of the presentation disclosure was made of intercepted information regarding offenses other than those authorized in the wiretap order. An indictment was returned on January 10, 1978.

Defendants argue three points in support of their motion to suppress:

1. Interception of the information regarding violations of the Cigarette Tax Act was unlawful since only crimes listed in N.J.S.A. 2A:156A-8 may be authorized as the object of wiretap interception.

2. Disclosure and use of the information regarding violations of the Cigarette Tax Act were unlawful as not conforming to N.J.S.A. 2A:156A-18.

3. Information obtained from the search of the van on October 16, 1977 must be suppressed as it is the fruit of the illegal interception and disclosure, since the warrant was based partly on information supplied by the intercepted wiretaps.

4. The search warrant was based on information stale and unable to support probable cause, since the observation of the van occurred 14 days before the execution of the warrant.

Defendants move not only for suppression of the illegally intercepted material but dismissal of the indictment, pursuant to U.S. v. Brodson , 528 F.2d 214 (7 Cir. 1976). Defendants contend that dismissal is the appropriate remedy for unlawful disclosure of wiretap information.

In any electronic surveillance the provisions of the federal statute, 18 U.S.C.A. ยง 2510 et seq. , as well as the authorizing state statute, N.J.S.A. 2A:156A-1 et seq. , must be complied with. Interpretation of a state wiretap statute can never be controlling where it imposes requirements less stringent than the controlling standard of Title III. However, if a state sets forth procedures more exacting than those of the federal statute, the ...


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