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State v. Burstein

Decided: March 16, 1981.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
STUART BURSTEIN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. MATTHEW GREENHAUSE, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. NICHOLAS BARRISE, DEFENDANT-APPELLANT, AND STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. CONCETTA DEHART, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 172 N.J. Super. 388 (1980). (State v. Burstein and Greenhause). On certification to the Superior Court, Appellate Division, whose opinion is reported at 173 N.J. Super. 549 (1980). (State v. Barrise and DeHart).

For affirmance -- Wilentz and Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For modification and affirmance in part and reversed in part -- Justice Pashman. The opinion of the Court was delivered by Wilentz, C.J. Pashman, J., dissenting.

Wilentz

These cases present several questions relating to New Jersey's Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), N.J.S.A. 2A:156A-1 et seq.

The sealing provision of the Act, N.J.S.A. 2A:156A-14, requires tapes of all intercepted conversations to be presented "immediately" to an appropriate judge for sealing. In State v. Cerbo, 78 N.J. 595 (1979), we held that a delay in presenting the

tapes for sealing would result in suppression of the tapes unless there was a satisfactory explanation for the delay. This case presents the question of whether Cerbo should be applied retroactively to suppress tapes whose late sealing occurred prior to February 2, 1979, the date of that decision.

We are presented with two additional questions: first, when tapes are suppressed because of a sealing delay, whether derivative evidence from those tapes is nevertheless admissible at trial; and second, whether the State complied with its obligation to minimize both its hours of interception and its interception of non-relevant calls within the hours of interception.

For the reasons set forth in this opinion, we hold that Cerbo is not to be applied retroactively, even to cases that have not yet exhausted all direct avenues of appeal. We further note that, when tapes are suppressed because of a sealing violation, evidence derived from other wiretaps or search warrants based on those tapes is nevertheless admissible at trial where the derivative wiretap or search warrant was authorized prior to the sealing violation. Finally, we hold that the State fully complied with all of its minimization obligations in the instant wiretap.

I.

FACTS

These cases involve appeals from two Appellate Division decisions, State v. Burstein, 172 N.J. Super. 388 (1980), and State v. Barrise, 173 N.J. Super. 549 (1980), which disagreed on the question of whether Cerbo should be applied retroactively. The facts of each case will be discussed separately.

A. Facts -- State v. Burstein

On October 25, 1978, Stuart Burstein and Matthew Greenhause pled guilty to conspiracy to violate the narcotics laws and possession of marijuana with intent to distribute.

The case against them had been based largely on evidence derived from a series of wiretaps conducted by the Essex County Prosecutor's Office between December 2, 1977, and

January 5, 1978. The tapes from those wiretaps are the subject of this appeal.

On December 2, 1977, the Prosecutor's Office applied for an order authorizing a wiretap of the phone of Matthew Greenhause. The application was made to Assignment Judge Arthur J. Blake of the Superior Court, Law Division, who had been designated by Chief Justice Hughes, pursuant to N.J.S.A. 2A:156A-2(i), to authorize such applications. The wiretap was sought as part of an ongoing investigation of a major Essex County narcotics network in which Greenhause was believed to play a major part. Judge Blake granted the order, authorizing 24-hour surveillance for a period of 20 days. Such round-the-clock surveillance was based on a showing by the Prosecutor's Office that there was a "special need" for it, due to "the magnitude of the operation" and the observation of several of the State's affiants that, based on their experience, "this type of narcotics dealer converses with his associates at any time of day or night."

The police continued to tap Greenhause's phone throughout the month of December, receiving one extension. On December 28, 1977, the State applied to Judge Blake for authorization to intercept conversations over the telephone of Stuart Burstein. Probable cause for the Burstein wiretap was derived largely from information gathered during the Greenhause wiretap.

The Greenhause wiretap was terminated on December 31, 1977, and the Burstein wiretap on January 5, 1978. On that day both men's residences were searched pursuant to court-authorized search warrants, and narcotics were seized in both places. The affidavits in support of both search warrants included numerous conversations intercepted during the wiretaps.

The tapes of the Burstein wiretap were sealed six days after its termination. The tapes of the Greenhause wiretap, however, were not presented to Judge Blake for sealing until January 30, 1978, a delay of 30 days. The reason given by the State for its delay in presenting the tapes for sealing was that the Attorney General had changed the format for drawing up notices of

inventory, a procedure by which the judge is given a list of all parties whose conversations were intercepted so that appropriate notification can be given.*fn1 This change in format had made it necessary to redo all of the original notices of inventory, which were still unfinished as of January 30, 1978. By that time, however, the State had become sufficiently concerned about the delay to present the tapes for sealing without notices of inventory.

At a pretrial hearing on October 25, 1978, the defendants moved to suppress both the tapes of the wiretap and the evidence derived as fruits of the wiretap. Both motions were denied, and the defendants pled guilty, reserving their right to raise the suppression issues on appeal.

While the appeal was pending, we announced our decision in State v. Cerbo, 78 N.J. 595 (1979). The defendants then argued before the Appellate Division that Cerbo should be applied retroactively to suppress the Greenhause tapes. They further argued, among other things, that the Burstein tapes and all other evidence derived from the Greenhause wiretap should be suppressed as well and that the State had failed to make reasonable efforts to minimize its interception of non-pertinent conversations during the Greenhause wiretap.

The Appellate Division agreed that the Greenhause tapes should be suppressed, but declined to suppress the Burstein tapes or other evidence derived from the Greenhause wiretap. State v. Burstein, 172 N.J. Super. 388 (1980). The court, concluding that there was no satisfactory explanation for the sealing delay, suppressed the Greenhause tapes, not as a matter of

retroactivity, but because both the sealing requirement and a suppression sanction had been plainly spelled out in N.J.S.A. 2A:156A-14 since 1968, well before the events in this case. The court concluded that there was no retroactivity question involved, and remanded the case for the purpose of giving the defendants an opportunity to reconsider their guilty pleas.

B. Facts -- State v. Barrise

On July 16, 1974, Judge Blake authorized a 21-day wiretap of a telephone listed to D. Glovan, Newark, New Jersey. The wiretap was sought as part of a joint investigation by a City of Newark -- Essex County Strike Force into a suspected lottery operation being run on those premises.

The wiretap ran until August 1, 1974. On that date search warrants were issued for five different locations, and a "sweep" was executed. Several suspects were arrested, including defendants Nicholas Barrise and Concetta DeHart.

On August 6, 1974, the tapes were ready to be presented to Judge Blake for sealing. However, the judge was away on vacation for the month. The State did not present the tapes to another judge for sealing because the statute had unequivocally directed that the tapes "shall be transferred to the judge issuing the order and sealed under his direction." N.J.S.A. 2A:156A-14 (emphasis added). Thus the tapes remained in a sealed package inside a vault in the Prosecutor's Office rather than being presented for sealing. Nor were the tapes presented for sealing during the first week of September, at which time Judge Blake was attending the annual State Judicial College. The tapes were finally presented to Judge Blake for sealing on September 10, a delay of 40 days.

The tapes were used against both Barrise and DeHart at trial and on January 23, 1978, both defendants were found guilty of conspiracy to violate the State gambling laws.

Barrise and DeHart appealed their convictions on several grounds, including the State's failure to comply with the sealing requirement. The Appellate Division agreed that the sealing

delay had violated N.J.S.A. 2A:156A-14, but refused to apply Cerbo retroactively and suppress the tapes. State v. Barrise, 173 N.J. Super. 549 (1980). Although it rejected the State's justification for the sealing delay (concluding that Judge Blake was available despite his vacation),*fn2 the court declined to suppress the tapes. It concluded that the deterrent purposes of Cerbo would not be furthered by retroactive application, that the State had justifiably relied on previous law to the contrary, and that retroactive application would have an adverse impact on the administration of justice. 173 N.J. Super. at 555-57. We agree with its conclusion.

With Barrise in direct conflict with the previous Appellate Division decision in State v. Burstein, supra, 172 N.J. Super. 388, we granted certification to resolve the dispute as to whether Cerbo should be applied retroactively, as well as ...


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