On certification to the Superior Court, Appellate Division, whose opinion is reported at 255 N.J. Super. 459 (1992).
Clifford, Wilentz, Handler, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
We granted certification, 130 N.J. 13 (1992), to decide whether New Jersey should recognize a "surveillance location privilege," under which the State can refuse to disclose the exact location from which law-enforcement officers observe criminal activity. We hold that Evidence Rule 34, the "official information privilege," permits the State to withhold that information in appropriate circumstances. Because the Appellate Division correctly determined that the circumstances in this case justified non-disclosure of the surveillance location, we affirm.
On January 8, 1989, Newark police officers Joseph Farina and Dennis McCauley observed defendant, Matteo Garcia, and an accomplice apparently selling drugs in the area of Clark Street and Broadway within 1,000 feet of a school. The officers were conducting a surveillance at that location based on an informer's tip that two males were dealing "Dope-P-Dope" (a street name for heroin) near that corner. The officers observed an unknown male, believed to be a drug buyer, approach Garcia's accomplice and speak briefly with him. After a short conversation with the accomplice, Garcia crossed the street and retrieved something from an abandoned freezer in a vacant lot. When he returned, Garcia handed the "frozen goods" to either the "buyer" or the accomplice (Officer McCauley's trial and grand jury testimony differed on that point), and the "buyer" gave money to the accomplice.
The officers witnessed the transaction with the aid of binoculars from a distance of approximately sixty feet. After leaving their observation post in an unsuccessful attempt to locate the buyer, the officers returned to the vacant lot, where they saw defendant and his accomplice. Garcia fled, but Officer Farina apprehended and arrested him. The officers also arrested the accomplice. Officer McCauley searched the freezer and found nine glassine envelopes of heroin marked "white monster" in a cardboard box. A search of the accomplice yielded $23. The police found no drugs or money on Garcia.
Before trial, the State moved pursuant to Rule 3:13-3(d)(1) for a protective order prohibiting disclosure of the officers' location during the surveillance. The court held an in camera hearing with defense counsel present. At the hearing, McCauley testified that he had observed defendant from an elevated position in an occupied building on Broadway, fifty to seventy-five feet south of the intersection of Broadway and Clark, and fifty to sixty feet from the site of the alleged drug transaction.
McCauley told the court that the police still used the building as a surveillance site because of extensive drug activity in that area. He expressed concern that drug dealers might retaliate against the building owner or burn down the block if they learned of the surveillance site. McCauley also told the court that persons often hesitate to allow the use of their properties for surveillance activities because they fear reprisal.
The court issued the protective order, denying defendant access to the precise surveillance location.
A jury convicted defendant of conspiracy, N.J.S.A. 2C:5-2; third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. After merging the conspiracy and third-degree possession convictions with the school-property offense, the court sentenced defendant to a five-year term.
On appeal, defendant asserted that the suppression of the surveillance site had unconstitutionally limited his right of cross-examination. The Appellate Division affirmed in a partially-published opinion, holding that the trial court had properly balanced defendant's need for disclosure against the State's interest in public safety. State v. Garcia, 255 N.J. Super. 459 (1992). The court held that "failure to disclose the precise vantage point was not prejudicial to defendant but rather served to protect school children and potential victims of retaliation." Id. at 468.
Although the Appellate Division did not premise its Conclusion on Evidence Rule 34, we are satisfied that it resolved the issue consistent with our holding today.
Evidence Rule 34, commonly known as the "official information privilege," states:
No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the Judge finds that disclosure of the information in the action would be harmful to the interests of the public.
Dean Wigmore has noted that some "official information privilege" undoubtedly exists, but adds that "the scope of that privilege has not yet been defined with certainty." 8 Wigmore on Evidence § 2378, at 792 (McNaughton rev. 1961). Although few of our cases have construed Evidence Rule 34, we are satisfied that a surveillance location falls within the type of information that a court may conceal in the public interest.
Although the privilege has most often arisen in cases concerning requests for government documents, the Rule in no way limits its application to those circumstances. See generally North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders, 127 N.J. 9 (1992) (noting that in certain circumstances, Evidence Rule 34 will protect toll-billing records of government official); McClain v. College Hosp., 99 N.J. 346 (1985) (discussing Evidence Rule 34 as possible basis for withholding transcripts of investigative proceedings of State Board of Medical Examiners); Dixon v. Rutgers, 215 N.J. Super. 333 (App. Div. 1987) (rejecting University's argument that Evidence Rule 34 protects peer-review materials used for tenure evaluations), aff'd and modified, 110 N.J. 432 (1988); State v. Singleton, 137 N.J. Super. 436 (Law Div.), aff'd, 158 N.J. Super. 517 (App.Div. 1975) (discussing Evidence Rule 34 as possible basis for withholding transcripts of parole-revocation hearing), certif. denied, 79 N.J. 470 (1978). Because we see no reason to graft a government-documents limitation onto the plain language of the Rule, we conclude that in certain circumstances the "official information privilege" permits the State to conceal the exact location of police surveillance.
Our decision today tracks the Appellate Division's resolution of a similar issue in State v. Travis, 133 N.J. Super. 326 (1975), in which the court upheld the State's right under Evidence Rule 34 not to reveal the exact locations of wiretap equipment. The Appellate Division said:
The trial Judge ruled this information was privileged under regulations of the Public Utilities Commission and to reveal the monitoring location would endanger future surveillances. Be that as it may, we are of the view that defendant did not make a satisfactory showing of why this ...