On certification to the Superior Court, Appellate Division, whose opinion is reported at 251 N.J. Super. 358 (1991).
Glifford, Wilentz, Handler, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
In the companion case, State v. Garcia, ___ N.J. ___(1992), decided this day, we hold that Evidence Rule 34 provides a "surveillance location privilege" that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel have observed alleged criminal activities. In this case the trial court issued a protective order limiting cross-examination about the surveillance location. The Appellate Division reversed defendant's conviction for distribution of heroin, State v. Zenquis, 251 N.J. Super. 358 (1991). We now affirm.
On June 1, 1988, Trenton Police Officer Michael Mihalik conducted a surveillance near the corner of Stockton and Academy Streets, an area noted for the sale of illegal substances. Officer Mihalik observed a female, later identified as Joanne Carroll, approach a male whom the officer recognized as Rafael Fernandez. Fernandez appeared to direct Carroll toward defendant, Luis D. Zenquis, who then crossed the street with Carroll and entered a vacant lot where, according to Mihalik, Carroll handed money to defendant in exchange for a small glassine envelope.
By radio Mihalik instructed other officers to arrest Carroll. When the police apprehended Carroll several blocks away, they found a small quantity of heroin in her possession. Informed of the arrest, Mihalik then directed officers to arrest Fernandez and defendant. The police found $250 in Fernandez's pocket but discovered no drugs or money in defendant's possession.
Before trial, the State moved for a protective order barring defendant from cross-examining Officer Mihalik about certain aspects of the surveillance location. At an Evidence Rule 8 hearing in open court, Mihalik testified that he had seen the transaction from a distance of fifty to seventy-five feet and that he had not used binoculars. He refused to answer defense counsel's questions directed to (1) whether he had seen the transaction from indoors or outdoors, (2) whether the site was elevated, and (3) whether a private person owned any building that might have been used.
The court then conducted an in camera hearing out of the presence of defendant and defense counsel. Mihalik thereupon revealed many details about the site, including whether a building had been involved and whether he had observed the transaction from an elevated position. He stated that the police frequently used the location for surveillances and that he had used the location forty to fifty times in the preceding thirty months. Mihalik testified that although the police were not using the site at the time of the pre-trial hearing, they intended to use it in the future. Finally, he told the court, as he had in the open-court hearing, that he feared reprisal if drug dealers were to learn the location of the surveillance site.
At the Conclusion of the closed hearing the trial court made specific findings: (1) the location serves an extremely important law-enforcement interest; (2) the information that Mihalik had made his observations from a distance of fifty to seventy-five feet allowed defense counsel ample opportunity to explore "the general area of the location of the officer"; (3) "real potential for reprisals" existed; and (4) secrecy had to be maintained to protect ongoing investigations. The court ruled that the officer would have to disclose whether his vantage point had been indoors but not the other details previously sought by defense counsel.
Returning to open court, and again in the presence of defendant and his lawyer, the trial court announced the findings above and issued a protective order, allowing defendant to learn that the officer had conducted his surveillance from indoors but barring inquiry about the elevation of the site.
A jury convicted defendant of distributing heroin, N.J.S.A. 2C:35-5(b)(3). On appeal, defendant claimed that the exclusion of him and his counsel from the evidentiary hearing and the issuance of the protective order violated his right of confrontation under the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution. The Appellate Division held that the trial court had not violated defendant's right of confrontation when it conducted the ex parte evidentiary hearing but found that the protective order had impermissibly limited defendant's right of cross-examination. ...