On appeal from Superior Court, Law Division, Atlantic County.
Dreier, Gruccio and Brochin. The opinion of the court was delivered by Gruccio, J.A.D.
The opinion of the court was delivered by
Defendants Joel Stelzner, Laurence Becker, Steven Forte, Joseph T. Ingargiola and George Johnson collectively appeal from the Judge's denial of their motions for suppression of hotel billing records and other evidence arising out of an investigation into a card-shuffling scheme in Atlantic City. After their motions were denied, defendants pled guilty to various forms of cheating at casino gambling.
Defendants were indicted by an Atlantic County Grand jury on January 20, 1988, charging each with conspiracy, N.J.S.A. 2C:5-2 (count one); theft by deception, N.J.S.A. 2C:20-4 (counts two and four); and swindling and cheating at casino gambling, N.J.S.A. 5:12-113 (counts three and five).
Pursuant to plea agreements, the State agreed to recommend sentencing at a third-degree level if Ingargiola, Stelzner and Becker would plead guilty to the second-degree charge. Forte pled guilty to a third-degree theft and Johnson pled guilty to a fourth-degree crime. Defendants pled, preserving the right to challenge the Judge's rulings on their suppression motion.
Stelzner was sentenced to a three-year term, ordered to make restitution of $67,500 and assessed a $30 Violent Crimes Compensation
Board (VCCB) penalty. Becker was sentenced to a three-year term, ordered to make restitution of $22,500 and was assessed a $30 VCCB penalty. Forte was sentenced to a four-month term with two years' probation, ordered to make restitution of $11,250 and assessed a $30 VCCB penalty. Ingargiola was sentenced to a three-year term, ordered to make restitution of $123,750 and was assessed a $30 VCCB penalty. Johnson was sentenced to two years' probation, fined $7,500 and assessed a $30 VCCB penalty.
On appeal, defendants contend:
1. The receipt of hotel-toll billing records by Sergeant Kontakis on January 29, 1987, was a warrantless seizure under both the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution.
2. The warrantless seizure of phone billing records on January 29, 1987, was unlawful since violative of New Jersey Constitution, Article 1, Paragraph 7.
3. The hotel-toll billing records seized after January 29, 1987, were illegal fruit of the first unlawful seizure and must also be suppressed.
4. The Grand Jury subpoenas are void nunc pro tunc and all documents secured by their authority must be suppressed.
5. The admissibility of records secured pursuant to a Nevada Administrative Subpoena, violative of New Jersey law, requires a remand to determine the agent's vel non between New Jersey and Nevada police officers.
6. The Casino Control Act, N.J.S.A. 5:12-1 et seq. was intended by the legislature to be the exclusive vehicle for prosecutions alleging swindling and cheating at casino gaming.
The facts as developed in the motion proceeding, in sum, establish that on August 10, 1986, Stelzner, Becker and Ingargiola participated with a casino card dealer in defrauding an Atlantic City casino by cheating at cards. They returned, along with Forte, and cheated another casino in a similar manner on February 16, 1987. Johnson's role was to recruit a casino dealer to participate in the scheme, for which Johnson was paid independent of the card game. On each of these two occasions, in excess of $75,000 was illegally won by defendants.
In seeking dealers to participate in the scheme, defendants solicited Geraldine Sears, a reception desk clerk, who reported it to Harrah's security manager in January 1987. He, in turn, reported this information to Sergeant Sam Kontakis of the New
Jersey State Police, who was assigned to enforce the Criminal Code and Casino Control Act*fn1 at the Atlantic City casinos. Sergeant Kontakis interviewed Sears on January 28, 1987, and learned that she had been approached by "Larry Vegas," who gave her a scrap of paper. Sears told Sergeant Kontakis of the gaming system Vegas proposed and gave him the paper which contained a room number and telephone number of the Quality Inn where Vegas said he could be reached. Sergeant Kontakis went to the Quality Inn on January 29 and spoke with Carrie Strogus at the registration desk. She reported that the room was registered to Becker and Larry Duncan. She indicated that Becker had already checked out, but Duncan was still there.
Sergeant Kontakis asked Strogus for a copy of the registration card for the room, at which point she observed Duncan crossing the lobby and leaving with an unknown woman. Kontakis followed Duncan but obtained no useful information. When he returned, Strogus gave him a computer printout for their room, which she noted had been paid for by Becker with an American Express card. Although the printout he was given included records of local and long-distance telephone calls, Kontakis stated that his primary interest was in the names and addresses, which were all he had requested.
Sergeant Kontakis ran the names through a computer to check for prior criminal history. Thereafter, he realized that the bulk of the printout concerned telephone calls, for which he knew a court order was required. Sergeant Kontakis returned the original computer printout to the Quality Inn, on his own initiative, retaining neither notes of the telephone information nor a copy of the printout. He gave no instructions to hotel personnel. Kontakis then discussed his actions with Sergeant
On February 10, 1987, Sergeant Kontakis was ordered off the matter, and Detectives James Leary and Richard Loufik, investigators under Medolla, took over the case. Medolla previously had been aware of Kontakis's activities in this matter and discussed them with Deputy Attorney General Sheri Tanne. Tanne instructed Medolla to ensure that Kontakis not become further involved in the case, as his awareness of the telephone records, not secured by a warrant, could taint the investigation.
Detective Leary specialized in the investigation of card-dealer scams and was peripherally aware of Sergeant Kontakis's initial investigation. Leary spoke with Kontakis about the nature of Sear's assertions and the result of her interview. At that point, Leary learned nothing of the telephone records Kontakis had obtained. When he assigned Leary to take over the investigation, Medolla told him to have no contact with Sergeant Kontakis. Leary realized that this was unusual since the line officer (Kontakis) normally worked in tandem with the special investigations unit (Detectives Leary and Loufik). Leary concluded that Kontakis had done something to require his removal from the investigation.
Detective Leary called Wilbur Johnson, the Director of Security for the Quality Inn and its related hotel, the Comfort Inn, and requested that he quickly secure any information concerning Becker and Duncan. Although not then specifically aware that Sergeant Kontakis had obtained and returned telephone billing records, Leary suspected as much.
Detective Leary then received the name and address information and asked Wilbur Johnson not to tell him anything about telephone records, but, instead, to secure them until a subpoena could be obtained. Leary's interest in the records was to identify other Atlantic City dealers who had been contacted by
defendants and might have participated in the scam. Prior to obtaining a subpoena, the only information Leary had learned from Sergeant Kontakis, Sergeant Medolla, Wilbur Johnson and his own investigation was ...