On appeal from Superior Court of New Jersey, Law Division, Essex County.
Allcorn, Morgan and Francis. The opinion of the court was delivered by Morgan, J.A.D.
Defendants Matthew Greenhause and Stuart Burstein appeal convictions of possession of CDS (marijuana) with intent to distribute (N.J.S.A. 24:21-19(a)(1)) and conspiracy to violate the narcotics laws (N.J.S.A. 24:21-24), on their pleas of guilty entered after denial of their motions to suppress the taped contents of court-ordered intercepted telephone conversations. The issues raised herein include the retroactivity of State v. Cerbo , 78 N.J. 595 (1979), to electronic surveillance occurring before its date of decision, and if applicable, the impact of a suppression order on search warrants and wiretap orders based upon matters uncovered during the allegedly tainted wiretap.
The facts concerning the electronic surveillance, by wiretap of the phones of defendants Greenhause and Burstein, are essentially undisputed and officially documented. On December 2, 1977 an application for an order authorizing a wiretap on the telephone of defendant Greenhause was made to Judge Arthur Blake, Assignment Judge of Essex County. The affidavit submitted therewith, the details of which are irrelevant, sought a 20-day wiretap on a 24-hour-a-day basis. The requested order was issued on December 2, 1977 and authorized the requested 20-day wiretap of Greenhause's telephone with the following findings:
A special need exists to intercept wire communications over said facility on a twenty-four (24) hour basis, whenever it is determined by . . . surveillance
that said facility is being used by . . . Greenhause . . . and other unidentified persons in furtherance of this illegal conspiracy.
The Greenhause wiretap began on December 2, 1977, the same day as the order authorizing it was issued. On December 7, 1977 another application for a wiretap was made because the monitored conversations suggested that Greenhause was changing his telephone number. The second application was also granted.
On December 21, 1977 the prosecutor's office applied for a ten-day extension of the wiretap order, averring that between December 2 and December 18, 64 "criminal" conversations were intercepted and recorded. Three such "typical" conversations were reproduced in the application. This application also requested a 24-hour-a-day surveillance authorization. The application was granted.
On December 28, 1977, while the Greenhause wiretap was still fully operative under the ten-day extension order, the prosecutor's office applied for and obtained a 20-day, 24-hour-a-day wiretap on defendant Burstein's telephone on the belief, based upon several of the intercepted Greenhause conversations, that Burstein was a CDS supplier of Greenhause.
The Burstein wiretap terminated on January 5, 1978. The Greenhause wiretap terminated on December 31, 1977. On January 5, 1978, the day the Burstein wiretap terminated and approximately five days after termination of the Greenhause wiretap, the prosecutor's office secured warrants, based upon information derived from the wiretaps, authorizing intrusions into and searches of the Greenhause and Burstein residences. As a result of the warrants, CDS and related paraphernalia were found in the residences of both defendants. Greenhause, Burstein and 11 others were arrested.
The Burstein wiretap tapes were presented for sealing to Judge Blake on January 11, 1978, six days after the wiretap on his phone terminated. ...