On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler, and Pollock. For reversal -- None. The opinion of the Court was delivered by Wilentz, C.J. Pashman, J., concurring and dissenting in part. Pashman, J., concurring in the result.
[85 NJ Page 422] In this case we are called upon to interpret the minimization provision, N.J.S.A. 2A:156A-12(f), of New Jersey's Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"). That provision requires those charged with monitoring the wiretap to make reasonable efforts to "minimize or eliminate the interception" of conversations other than those they have been authorized to overhear. This provision plays a crucial role in our overall wiretapping scheme, being one of the few provisions which regulate the conduct of police to protect the privacy of callers during the actual course of the wiretap.
We hold that the police must make reasonable efforts to minimize both "extrinsically," by attempting to limit their hours of interception, and "intrinsically," by attempting to terminate the interception of non-relevant phone calls on an individual basis within the authorized hours of interception. We further hold that, not only must the actual minimization have been reasonable, but the monitoring agents must also have made a good-faith effort to comply with the minimization requirement during the course of the wiretap.
This case involves two separate wiretaps conducted by the State Police to gather evidence about a suspected bookmaking operation being run over the telephone by Louis Gatto and other persons not involved in this appeal.
The object of the first wiretap was a phone listed to Bert DeWitt of Paterson, New Jersey. That wiretap ran daily from December 4 through December 19, 1979. The wiretap order authorized the police to intercept communications over that phone between the hours of noon and 2:00 p.m. and between 6:00 p.m. and 8:00 p.m., which were deemed to be the peak hours of the bookmaking operation. Louis Gatto was named in the wiretap order as a party whose conversations were to be intercepted.
The second wiretap order authorized the interception of conversations over a telephone listed to the Circle Democratic Club, Lodi, New Jersey. That wiretap commenced on December 15, 1979, and was conducted on a daily basis between the authorized hours of 11:00 a.m. and 8:30 p.m. The wiretap terminated on December 29, 1979, the date on which defendants Nicholas Catania, Louis Gatto and Frank Elia were arrested.
The wiretap facility consisted of two tape recorders, one official and one tandem. The official recorder ran at all times
and recorded every conversation in its entirety. At the end of each shift the official tape was sealed and later duplicated. The speaker of that machine was connected at all times so that every conversation was overheard by the monitoring policemen in its entirety. The tandem recorder was also on at all times, but could be stopped and rewound if it was necessary for the police to review a conversation immediately. The police monitors had the ability not to record or overhear a particular conversation if they so desired, but they had been instructed not to turn off the official machine at any time, no matter how non-relevant the conversation appeared to be. The only exceptions to this policy were privileged conversations such as those between attorney and client or priest and penitent, which they were instructed not to intercept.
When the wiretap was terminated, search warrants were executed and these three defendants arrested. All three moved at various points to suppress the tapes on the ground that the police had failed to minimize properly, as required by N.J.S.A. 2A:156A-12(f). Their motions were denied, and they were convicted of various gambling and bookmaking offenses. Their convictions were affirmed by the Appellate Division. We granted certification limited to the question of whether the minimization procedures employed by the police during the course of this wiretap violated N.J.S.A. 2A:156A-12(f) or the relevant constitutional provisions. We affirm.
Before proceeding to discuss minimization, several questions of standing and waiver must be addressed.
The State has contested the standing of these defendants to challenge this wiretap. According to section 21 of the Wiretap Act, N.J.S.A. 2A:156A-21, only an "aggrieved person" may raise the issue of minimization. Section 2(k) of the Act, N.J.S.A. 2A:156A-2(k), defines an "aggrieved person" as "a person who was a party to any intercepted wire or oral communication or a
person against whom the interception was directed." Thus, standing has been denied to persons who were not named as targets in a wiretap order and whose conversations were not intercepted during the course of the wiretap. State v. Barber, 169 N.J. Super. 26, 31-34 (Law Div.1979); State v. Cocuzza, 123 N.J. Super. 14, 24 (Law Div.1973).
Applying this test to the instant case, we find that Cantania is not an "aggrieved person" because he was neither named as a target in the wiretap orders nor was he a party to any of the intercepted conversations. He is thus without standing to contest the minimization procedures employed in these wiretaps.
The State concedes that Gatto had standing to contest the first wiretap, because he was named as a target in that order. The State argues, however, that Gatto is without standing to contest the second wiretap, and that Elia is without standing to contest either wiretap, because they were party only to incriminating conversations and not to the non-incriminating conversations that arguably should have been minimized. We decline to accept the State's argument and instead hold that any defendant whose incriminating conversations are intercepted during a wiretap has standing to contest the State's failure to minimize its interception of other non-relevant conversations during the same wiretap, even though that defendant was not a party to those other conversations. Our reasons are several.
First, the State's position is that every single interception during the wiretap is a separate search and seizure, its validity therefore to be judged independently of the unreasonableness of other interceptions. The conclusion follows that a person who is party to one interception would be barred from contesting another interception that occurred during the same wiretap. We reject that view. To fragment a wiretap into a series of searches and seizures, rather than viewing it as one continuous search and seizure, would allow the State to intercept innocent conversations illegally and then limit its losses by having the result of only those intrusions suppressed, while keeping the
results of the other interceptions in evidence. In 1975, the Legislature rejected such a fragmented approach to wiretap law in another context when it addressed the question of what remedy should follow a minimization violation. In State v. Dye, 60 N.J. 518 (1972), we had held that failure by the State to minimize its interception of non-relevant conversations would lead to the suppression of only those conversations, rather than the results of the entire wiretap. 60 N.J. at 539-42. The flaw in this approach was that it would not deter the State from disregarding the minimization provision, because only innocent and non-relevant conversations would be suppressed while the relevant ones would remain admissible. The Legislature responded by amending N.J.S.A. 2A:156A-21 to provide that any minimization violation would result in the suppression of the " entire contents of all. . . communications" (emphasis supplied). The Legislature concluded that only by avoiding such a fragmented approach to wiretapping such as that espoused by Dye could minimization violations be deterred. See Senate Judiciary Committee Statement to N.J. Senate Bill No. 1417 (1975), sec. 13. That logic is applicable here. In keeping with this legislative desire for a unitary, rather than a fragmented, approach to wiretapping, we conclude that a defendant who was party to at least one conversation, innocent or incriminating, during the course of a wiretap has standing to suppress the entire wiretap results because of the State's failure to minimize its interception of any conversations during the course of that wiretap.
Second, a rule which restricted standing to those who were party only to innocent phone conversations would diminish the likelihood that many of the State's minimization procedures would ever be challenged and brought under court scrutiny. Many of the parties to non-incriminating conversations are innocent callers who are not themselves defendants; they cannot bring a pretrial motion to suppress for failure to minimize. Indeed, they may never know their call was tapped. The only persons left to challenge the State's minimization are the defendants themselves, and many of them were party only to
incriminating conversations. If they do not have standing to raise the minimization issue, few persons will be left to raise it. Consequently, the minimization procedures employed by the State would completely escape judicial scrutiny in many cases. It would have little motivation to comply with its minimization obligations. We do not believe that the Legislature intended this result. We therefore conclude that both Gatto and Elia have standing to contest the minimization procedures employed by the State during both of these wiretaps.
The State has further contended that Gatto and Elia waived their right to raise the issue of minimization by failing to make their suppression motion at least ten days prior to trial, as required by N.J.S.A. 2A:156A-21. That section requires all suppression motions for failure to minimize to be made at least ten days prior to trial "unless there was no opportunity to make the motion or the moving party was not aware of the grounds for the motion." N.J.S.A. 2A:156A-21. Gatto and Elia gave several reasons at trial why they had not moved earlier to suppress for failure to minimize, and the trial judge assured them that their objection was properly made and that they were protected for the record. We conclude from these remarks that he found their delay in raising the objection excusable under N.J.S.A. 2A:156A-21. Because we find that there was no minimization violation, we need not pass on the correctness of the trial court's ruling. We take this opportunity, however, to admonish that the ten-day deadline must be adhered to and the exemption given by statute is to be granted sparingly.
We now proceed to consider the challenge to minimization brought by Gatto and Elia.
A. Background of the Minimization Requirement
The first references to minimization are found in the landmark wiretapping cases of Berger v. New York, 388 U.S. 41, 87
S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Berger, the United States Supreme Court struck down New York's eavesdropping statute, finding that it violated the Fourth Amendment on several grounds. One of these grounds was that the statute permitted "general searches by electronic devices" and allowed conversations to be seized "indiscriminately and without regard to their connection to the crime under investigation." 388 U.S. at 59, 87 S. Ct. at 1883, 18 L. Ed. 2d at 1052. The Supreme Court compared such roving eavesdropping warrants to the despised general search warrants which were of primary concern to the framers of the Declaration of Independence and the Fourth Amendment. The Court thus struck down New York's overbroad statute, declaring that electronic surveillance must represent no greater invasion of privacy than "necessary under the circumstances." 388 U.S. at 57, 87 S. Ct. at 1882, 18 L. Ed. 2d at 1051.
In Katz v. United States, supra, the Supreme Court invalidated an otherwise carefully conducted electronic surveillance operation on the grounds of improper authorization. The Court cited with approval, however, the efforts of the monitoring agents to refrain from listening to non-relevant callers or conversations. 389 U.S. at 354, 88 S. Ct. at 512, 19 L. Ed. 2d at 583-84.
When Congress enacted the federal wiretap law, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., it responded to Berger and Katz by including a minimization provision. That provision directs that "electronic surveillance shall be conducted in such a way as to minimize the interception of communications not [related to the crime under investigation]." 18 U.S.C. § 2518(5). When New Jersey enacted its Wiretap Act in 1968, it included a similar minimization provision which directed that "[e]very order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of
conversations not [related to the crime under investigation]." (emphasis supplied).*fn1 N.J.S.A. 2A:156A-12(f). In 1975, the Legislature added a proviso directing that the police fulfill the above minimization obligation "by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by [the wiretap] order." N.J.S.A. 2A:156A-12(f).
In addition to being required by statute, minimization is thus necessary to safeguard an important constitutional value: the privacy right of those who use the telephone to be secure from indiscriminate wiretapping that intercepts all conversations, no matter how non-relevant or personal, in violation of the Fourth Amendment proscription against unreasonable searches and seizures.
B. Minimization Under Existing New Jersey Law
There are two basic approaches to minimization, "extrinsic" and "intrinsic." "Extrinsic" minimization is accomplished by simply limiting the hours and total duration of interception, while "intrinsic" minimization is accomplished by terminating the interception of individual phone calls within those hours as it ...