Defendant Philip A. Constantino was indicted by a Hudson County Grand Jury which returned indictment no. 1098-05-91 charging defendant with possession of bookmaking paraphanalia in violation of N.J.S.A. 2C:37-3(a)(1) and promoting gambling in violation of N.J.S.A. 2C:37-2(a)(1). The facts indicate that a warrantless search and arrest was conducted.
On October 10, 1991, Bayonne Detectives Anthony Nardini and Neil Ward were conducting a surveillance of a public telephone located on the corner of 41st Street and Avenue C in Bayonne, New Jersey. According to Detective Nardini, this phone was under surveillance because it had been used on prior occasions for illegal gambling activity. Detective Nardini testified that on October 10, 1991 he and Detective Ward observed defendant, Philip Constantino, exit a vehicle and walk hurriedly to the phone on the corner. Detective Nardini testified that after defendant reached the phone, the detective exited his vehicle, walked to the sidewalk corner, stood two or three feet behind defendant, and listened to defendant's conversation. According to Detective Nardini, he heard defendant asking for "lines" or point spreads on professional football games and repeat these "lines" into the receiver. The detective also stated that he observed defendant write something down on a "Winning Points" periodical. At the conclusion of this phone call, Detective Nardini approached defendant, identified himself as a police officer and placed defendant under arrest.
The defense now moves to suppress all evidence seized by the arresting officers contending that the detective's actions constitute an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution and Article
I, paragraph 7 of the New Jersey Constitution. It is defendant's position that the detective's conduct in approaching defendant and listening to his phone conversation is tantamount to "eavesdropping" and constitutes an unlawful search and seizure of defendant's conversation. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990).
The State asserts that the officer's actions did not constitute an unlawful search and seizure of defendant's conversation. The State argues that, because police officers have a duty to investigate possible criminal activity, a police officer may detain a person for questioning where an articulable suspicion of criminal activity based on the totality of the circumstances is present. State v. Farinich, 179 N.J. Super. 1, 430 A.2d 233 (1981); State v. Sheffield, 62 N.J. 441, 303 A.2d 68 (1973). The State asserts that the presence of defendant at a known gambling location, his use of the telephone and the subsequent conversation overheard by the detective, coupled with the detective's experience and training create sufficient probable cause to arrest defendant, and thus, a denial of the suppression motion is required.
In order to determine whether there has been a violation of the Fourth Amendment guarantee against unreasonable searches and seizures, the appropriate inquiry is not to ask what was the object of the government's intentions, but rather to ask whether the affected citizen has a "reasonable expectation of privacy." Katz v. U.S., supra, 389 U.S. at 361, 88 S. Ct. at 516. In Katz, FBI agents had attached an electronic listening and recording device to the exterior of an enclosed public telephone booth in order to record illegal gambling activity. The Supreme Court held that the government's conduct violated petitioner's reasonable expectation of privacy and that this constituted a search and seizure within the meaning of the Fourth Amendment. However, the Court placed an important qualification on the constitutional protection outlined in Katz.
In writing that the Fourth Amendment protects people not places, the Supreme Court stated that what a person knowingly exposes to the public is not subject to Fourth Amendment protection. Id. at 351, 88 S. Ct. at 511.
Conversations carried on anywhere in a tone of voice audible to the unaided ear of a person located in a place where that person has a right to be, and where a person can be expected to be, are conversations knowingly exposed to the public and are not afforded Fourth Amendment protection. United States v. Martin, 509 F.2d 1211, 1214 (9 Cir.), cert. den. 421 U.S. 967, 95 S. Ct. 1958, 44 L. Ed. 2d 455 (1975); United States ...