"Best Cops Money Can Buy" was the headline of an article in the New York Daily News in March 1983. According to the article, organized crime controlled members of the Bayonne Police Department, including the Bayonne Public Safety Director.*fn1
The City of Bayonne thereupon formed a municipal investigating committee to inquire into the charges in the Daily News article. See N.J.S.A. 40:48-25. In the course of its investigation the committee instituted this proceeding to compel Bayonne Police Officer Robert Servello to comply with the committee's subpoena duces tecum. That subpoena requires Servello to produce any photographs, tape recordings or other materials allegedly compiled by Servello during his surveillance of certain reputed members of organized crime.
The committee contends that Servello is the police officer mentioned in the Daily News article as conducting a surveillance of organized crime figures without authorization from his police superiors. According to the article, Servello did not inform his superiors because he believed that they were protecting the criminals.
Servello resists the subpoena on the grounds that requiring him to produce the materials would tend to incriminate him contrary to the Fifth Amendment of the United States Constitution. See also N.J.S.A. 2A:84A-19.
The major issue is whether a police officer has a Fifth Amendment privilege to refuse to produce materials which he has compiled in the course of an investigation not authorized by his superiors. That issue has not been previously addressed in
a reported opinion in this state. My ruling is that under the circumstances here, Servello's production of the materials would be a compelled testimonial act of incrimination. The subpoena cannot therefore be enforced.
Under the U.S. Const., Amend. V, a person cannot be compelled to incriminate himself. See also N.J.S.A. 2A:84A-19. However, a witness "may not make himself the final judge of the availability of the Fifth Amendment privilege and hence enough must appear to permit the court to pass upon it." In re Addonizio, 53 N.J. 107, 116 (1968). See State v. Boiardo, 82 N.J. 446, 463, n. 13 (1980).
In the present case the facts suggest that Servello conducted unauthorized surveillances of certain persons, did not inform his superiors and did not turn over to his superiors the photographs, tape recordings and other materials which he compiled from those surveillances. (The court's analysis of the underlying facts is omitted). If that is so, Servello has shown enough to fear potential incrimination since such conduct would expose him to a criminal charge of misconduct in office. See N.J.S.A. 2C:30-2. (Servello might also be subject to a charge of obstructing justice. See N.J.S.A. 2C:29-1 and -3a.)
The crime of official misconduct is committed when a public servant:
a. . . . commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or
b. . . . knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of ...