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State v. Mollica

Decided: March 16, 1989.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 217 N.J. Super. 95 (1987).

For reversal and remandment -- Chief Justice Wilentz and Justices Handler, O'Hern and Garibaldi. Concurring in result -- Justices Clifford, Pollock and Stein. The opinion of the Court was delivered by Handler, J. Stein, J., concurring. Clifford and Pollock, JJ., join in this opinion.


[114 NJ Page 334] In this case federal law-enforcement officers without a search warrant obtained hotel billing records relating to the use of an occupant's room telephone. They then turned these records over to state law enforcement officers who, using this information, obtained search warrants and undertook a search of defendants' hotel rooms, seizing evidence of gambling offenses. In the ensuing criminal prosecution two major issues emerged. The first is whether New Jersey's constitutional protections against unreasonable search and seizure extend to hotel billing records relating to a person's use of his or her hotel-room telephone. The second is whether such a state constitutional protection applies when the seizure of such evidence is by federal officers who thereafter transfer the evidence

to state officers for prosecutorial use against a defendant.

We conclude that the state constitutional prohibition against unreasonable search and seizure applies to an individual's hotel telephone billing records based on his or her use of a hotel-room telephone. We find nevertheless that when such telephone records are seized by federal officers acting independently of state authorities and in conformity with federal law, this state constitutional protection does not bar subsequent prosecutorial use of those records for such purposes as establishing probable cause for the issuance of search warrants.


The facts that give rise to the issues on appeal began during June and July of 1983 when the Federal Bureau of Investigation ("FBI") received several anonymous telephone calls advising it that in May of that year one of the defendants, Augustine Ferrone, had operated an illegal bookmaking enterprise from rooms occupied in the Caesars Hotel/Casino ("Caesars") in Atlantic City. The FBI was also told that Ferrone's method of operation included telephone calls from his hotel rooms to numerous bookmakers throughout the country as well as to various sports lines and weather services to obtain the latest point spreads and weather conditions.

The FBI initiated its own independent investigation. Using only the anonymous tips, and without a search warrant, it obtained from Caesars the telephone toll records for Ferrone's rooms during the period of his stay at the hotel. These records confirmed the information given by the anonymous informant. Later, the FBI's anonymous source told it that Ferrone was assisted by the second defendant, Primo Mollica, who was said to occupy a suite of rooms in close proximity to Ferrone's rooms.

In early July of 1983, the FBI turned over this information, including that reflected in the telephone toll records, to the

New Jersey State Police. Based on this evidence, and its own independent confirmation of the fact that Ferrone and Mollica were again occupying rooms at Caesars, the State Police obtained warrants to search these rooms. This search, in turn, resulted in the discovery of paraphernalia and equipment used in bookmaking operations. As a result, defendants were arrested on charges of promoting gambling in violation of N.J.S.A. 2C:37-2, and of possession of gambling records in violation of N.J.S.A. 2C:37-3(a)(1).

At the trial that followed, defendants claimed that the seizure of the Caesars telephone toll records without a warrant violated their constitutional privilege against unreasonable search and seizure. It was not then asserted by defendants that the investigating police who had obtained the telephone records were federal agents. They argued only that the search warrants obtained by the state authorities were based on illegally seized evidence and therefore must be suppressed. The trial court agreed with these contentions, ruling that hotel telephone toll call billing records relating to an occupant's use of his or her hotel-room telephone were protected under the State Constitution from unreasonable searches and seizures. See State v. Mollica, 214 N.J. Super. 658, 662 (Law Div.1986) [hereinafter Mollica I] (discussing initial ruling). In an unpublished per curiam decision on interlocutory appeal, the Appellate Division upheld this ruling.*fn1 Thereafter, in the face of the contention that the initial seizure of the telephone records was done by FBI agents, the trial court ruled that its prior decision was fully applicable to FBI actions even though the federal officers acted independently of the State Police and in conformity with federal

law.*fn2 Mollica I, supra, 214 N.J. Super. at 664. The Appellate Division affirmed the trial court's decision applying the state constitutional standards against unreasonable searches and seizures to the seizure of the telephone records by federal officers. State v. Mollica, 217 N.J. Super. 95 (App.Div.1987). We subsequently granted the State's motion for leave to appeal from this interlocutory order. 108 N.J. 214 (1987).


The major issues posed in this case, namely, whether state constitutional protections against unreasonable search and seizure apply to hotel-room telephone billing records and whether these protections encompass the conduct of federal officers, present a threshold issue. We must determine preliminarily whether one of the defendants in this appeal, Primo Mollica, has standing to challenge the seizure of the telephone toll records involving the hotel room telephone of another individual. This issue arises because the telephone involved was not in Mollica's hotel room, but in that of the co-defendant, Augustine Ferrone.

The State argues that while defendant Mollica has standing to object to the seizure of items from his hotel room pursuant to the State's search warrant, he has no standing to object to the prior warrantless seizure of the hotel telephone toll records. The State claims that because these records related only to the hotel-room telephone of his co-defendant, Mollica is in no position to challenge their seizure despite the fact that they provided a basis for the search warrant covering his rooms.*fn3 [114 NJ Page 338] Ordinarily an individual has standing -- indeed, "automatic standing" -- to contest the validity of the search and seizure of evidence when "possession of the seized evidence at the time of the contested search is an essential element of guilt[.]" State v. Alston, 88 N.J. 211, 228 (1981) (a defendant charged with the possessory crime will be deemed to have standing); see also State v. Curry, 109 N.J. 1, 7-8 (1987) (discussing Alston). As the State correctly notes, however, this does not automatically provide that person with standing to object to prior or antecedent state action that was directed against another person. This is true even when that action becomes the basis for a subsequent search and seizure that is in fact directed against the defendant, eventuating in the subsequent seizure of incriminating evidence. As we noted in State v. Johnson, 43 N.J. 572, 595 (1965), aff'd, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), "cases dealing with the introduction of illegally seized evidence against one who was not the victim of the seizure, have consistently held that the person cannot assert the denial of another's rights." See Wong Sun v. United States, 371 U.S. 471, 492, 83 S. Ct. 407, 420, 9 L. Ed. 2d 441, 458 (1963); see also Farley v. $168,400.97, 55 N.J. 31, 46-47 (1969) (only party actually victimized by unconstitutional search and seizure has standing to object to it); State v. Parker, 153 N.J. Super. 481, 488 (App.Div.1977) (defendant with no actual connection to evidence cannot object to its seizure). Therefore, the fact that Mollica has standing to object to the search and seizure of evidence from rooms occupied by him does not, by itself, provide him with standing to object to the earlier seizure of telephone toll records relating not to his but to Ferrone's hotel-room telephone.

In assessing whether a defendant has a connection or relationship with evidence sufficient to give him standing to challenge its seizure, this jurisdiction applies a broad standard. In Alston, supra, 88 N.J. at 228, we upheld, as a matter of state constitutional doctrine, the retention of

the rule of standing traditionally applied in New Jersey, namely, that a criminal defendant is entitled to bring a motion to suppress evidence obtained in an unlawful search and seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.

This standard is one that goes beyond the "legitimate expectation of privacy" test employed in the federal fourth amendment context. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. den., 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979). Under our standard, if Mollica has a "participatory interest" in Ferrone's hotel-room telephone and telephone toll records, he would have a sufficient connection with this evidence to give him standing to object to its seizure despite his lack of any possessory or proprietary interest in the use of the hotel-room telephone.

A participatory interest in seized evidence extends beyond the kind of relationship that could otherwise be considered only proprietary or possessory. It rather stresses the relationship of the evidence to the underlying criminal activity and defendant's own criminal role in the generation and use of such evidence. Compare Alston, supra, 88 N.J. at 230 (occupants of a car that was subject to a general search had standing to challenge seizure of evidence) with Parker, supra, 153 N.J. Super. at 488 (while suppressing on other grounds evidence seized without a warrant from trunk of car belonging to mother of defendant, court specifically noted that "defendant had no proprietary, possessory or participatory interest in the car and no standing to object to the trunk being opened.").

As we recently noted in Curry, supra, 109 N.J. at 9, neither case nor commentary has fully catalogued the contents of the "participatory interest" test. Unlike the terms "possessory" or "proprietary," which denote property concepts, "participatory"

connotes some involvement in the underlying criminal conduct in which the seized evidence is used by the participants to carry out the unlawful activity. See Black's Law Dictionary 1007 (5th ed. 1979). It thus provides standing to a person who, challenging the seizure and prosecutorial use of incriminating evidence, had some culpable role, whether as a principal, conspirator, or accomplice, in a criminal activity that itself generated the evidence.

In this case, Mollica is alleged to have participated in the underlying criminal gambling activities that involved the use of Ferrone's hotel-room telephone resulting in the creation of the toll records. By showing that telephone calls had been made in a pattern frequently found in illegal gambling activities, the toll records confirmed the anonymous information that Ferrone's hotel-room telephone was being used for gambling activities. The affidavit requesting a warrant to search Mollica's rooms for evidence of gambling violations was derived in part from the information disclosed by these toll records. There is thus a sufficient connection between the telephone toll records and the underlying criminal gambling for which this defendant is charged, and a sufficient relationship between the defendant and the gambling enterprise, to establish a participatory interest on the part of defendant in this evidence. In sum, the involvement of defendant in criminal gambling activities that generated telephone toll records invests defendant with standing to challenge the validity of the seizure of this evidence.


The initial substantive issue decided by the courts below is whether the seizure of hotel telephone records of an occupant's room telephone without a search warrant constitutes a violation of state-constitutional standards. The determination of this issue depends on whether the principles of State v. Hunt, 91 N.J. 338 (1982), are applicable to transient accommodations, such as hotel rooms, and to hotel telephone toll records that are

kept in the regular course of a hotel's business to reflect for billing purposes the use of hotel-room telephones by guests.

In Hunt, the Court recognized that telephones are "part and parcel" of homes and offices and "an essential instrument in carrying out our personal affairs." 91 N.J. ...

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