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State v. Parisi

Decided: December 2, 1980.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOSEPH PARISI, DEFENDANT



Kleiner, J.s.c.

Kleiner

Defendant Parisi has filed a motion to suppress evidence acquired in the first instance as a result of consensual telephonic interceptions conducted, ostensibly pursuant to N.J.S.A. 2A:156A-4(c), and secondly, evidence acquired pursuant to search warrants issued in reliance upon information secured during said telephone interceptions.

As part of an investigation by the prosecutor of Cumberland County into a burglary and "fencing" operation, an informant placed several telephone calls to defendant to arrange sales of stolen property. These calls were consensually intercepted.

N.J.S.A. 2A:156A-4(c). Thereafter, sales of stolen property were consummated by the informant at defendant's residence and at defendant's business establishment.

Subsequent to these sales the State Police applied for a search warrant to search defendant's residence. The written affidavit in support thereof relied upon the information obtained from the intercepted telephone conversation as well as the sale of property arranged during that conversation.

A search warrant to search defendant's business property was orally granted subsequent to the initial search. The contemporaneous notes of the Superior Court judge who issued the oral search warrant reveal that the applicant relied upon the original affidavit which established probable cause for the first search warrant. State v. Fariello , 71 N.J. 552 (1976); State v. Liberti , 161 N.J. Super. 575 (App.Div.1978).

The crux of defendant's argument is that the failure of the prosecutor to utilize forms authorized by the Attorney General in his initial approval of the telephone interceptions renders all evidence derived from the interceptions suppressable. Defendant further contends that once that telephone evidence is suppressed, any search warrant, written or oral, issued thereafter, is tainted, and all physical evidence seized pursuant thereto must also be suppressed. Wong Sun v. United States , 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Sheffield , 62 N.J. 441, 454 (1973).

It is clear that the constitutional Fourth Amendment prohibition against unreasonable searches and seizures is not violated when one of the parties to a conversation consents to the overhearing. State v. McDermott , 167 N.J. Super. 271, 278 (App.Div.1979).

However, the New Jersey Legislature has limited the occurrence of consensual interceptions.

It shall not be unlawful under this act for:

(c) Any person acting at the direction of an investigative or law enforcement officer to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made unless the Attorney General or his designee or a county prosecutor within his authority determines that there exists a reasonable suspicion ...


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