Defendants seek to exclude from evidence documents seized at the execution of search warrants which were issued in reliance upon telephone toll records obtained without judicial warrant by the Federal Bureau of Investigation and turned over to the State Police "on a silver platter." Lustig v. United States, 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949). Is the use of the toll records permitted in these proceedings notwithstanding that they could not have been used if obtained directly by the State Police?
The procedural background for this question must be outlined in detail, as it is, regrettably, somewhat involved and protracted.
In January 1984 the State Grand Jury returned a two count indictment charging defendants with violations of N.J.S.A. 2C:37-2, promoting gambling, and N.J.S.A. 2C:37-3(a)(1), possession of gambling records. The matter was assigned for trial to Atlantic County.
The State alleges that defendants, while registered as guests at Caesars Boardwalk Regency Casino Hotel in Atlantic City in July 1983, "maintained premises, paraphernalia and equipment . . . in connection with a bookmaking enterprise." Executing a search warrant issued by a judge of the Superior Court on July 14, 1983, the State Police arrested defendants in the hotel and confiscated certain records which constitute the principal evidence in support of the State's case.
Defendants moved to suppress that evidence. Incident to the motion, I determined that State Police Detective John Medolla had submitted an affidavit in support of the application for the search warrant in which, in relevant part, he testified as follows:
a. Information was received by me, Det. J. Medolla # 2578, of the New Jersey State Police, from a reliable federal authority who has personal knowledge that sports bets are being accepted by the aforementioned described individual. The source of the FBI's information came about as the result of several anonymous phone calls received during the months of June and July 1983. The anonymous phone caller advised the following: an individual known personally by the caller named AUGUSTINE FERRONE and who is described in Section 3, paragraph 2 is the principal participant in a bookmaking enterprise. He described AUGUSTINE FERRONE as being a large scale lay-off man (Lay-off or edge-off is a term utilized by bookmakers. It refers to a person who accepts large wagers from other bookmakers enabling them to minimize their loses [ sic ]). The caller advised that in the earlier part of May 1983, AUGUSTINE FERRONE occupied a suite of room [ sic ] in Caesars Hotel where he conducted his illegal bookmaking enterprise. The caller explained that the method of operation in which AUGUSTINE FERRONE conducts his illegal enterprise is to call numerous bookmakers throughout the United States for the purpose of receiving their lay-off action. In addition, AUGUSTINE FERRONE calls various sports lines and weather services to obtain the latest conditions as well as the various point spreads. The caller advised that in addition to the
month of May 1983, AUGUSTINE FERRONE has occupied rooms in Caesars Hotel/Casino on numerous occasions at which time he has conducted illegal bookmaking.
b. A check of Caesars telephone records revealed that AUGUSTINE FERRONE did, in fact, occupy a suite of rooms in the earlier part of May 1983 as well as on numerous occasions. This would substantiate the callers [ sic ], information in regards to AUGUSTINE FERRONE occupying rooms in Caesars.
c. Telephone tolls were gathered during the time frame that AUGUSTINE FERRONE occupied rooms in caesars [ sic ], they reflected the following:
1. There was an outgoing call placed from Caesars to telephone facility 702-382-1600. A check in the Hill-Donnelly Cross Reference revealed that 702-382-1600 is listed to Binions Horseshoe Hotel and Casino, 128 Fremont Avenue, Las Vegas, Nevada.
It should be noted that the above telephone number appears very frequently on the tolls of sports bookmakers. The number is a 24 hour sports service that lists daily results of sporting events including the odds and the current line.
2. There was an outgoing call placed from Caesars to telephone facility 213-986-9710. The telephone number is known to the Las Vegas FBI office as being listed to Sports Publications, 10548 Victory, North Hollywood, California.
This telephone number furnishes to the caller prerecorded sports line information and sports results.
3. There was an outgoing call placed from Caesars to telephone facility 312-976-1212. The telephone number is known to Chicago FBI office as a National Weather Information Center. . . .
5. Records obtained from Caesars Hotel and Casino reflect numerous toll calls were charged to AUGUSTINE FERRONE [ sic ] room. A review of those calls indicate a classic bookmaking pattern, i.e. calls were made during the same ...