In-Progress Trace of Wire Communication, Matter of

• Decision Date: 28 April 1978
• Docket Number: IN-PROGRESS
• Citation: 76 N.J. 255,386 A.2d 1295
• Parties: In the Matter of anTRACE OF a WIRE COMMUNICATION to be Made to and Intercepted Over Telephone Facility Number, etc.
• Court: New Jersey Supreme Court

Page 255

76 N.J. 255

386 A.2d 1295

In the Matter of an IN-PROGRESS TRACE OF a WIRE COMMUNICATION to be Made to and Intercepted Over Telephone Facility Number, etc.

Supreme Court of New Jersey.

Argued April 5, 1977.

Decided April 28, 1978.

Bernard M. Hartnett, Jr., Newark, for appellant New Jersey Bell Tel. Co. (Bernard M. Hartnett, Jr. and Thomas E. Walsh, Jr., Newark, attorneys).

R. Benjamin Cohen, Asst. Prosecutor, for respondent State of N. J. (Joseph P. Lordi, Essex County Prosecutor, attorney; R. Benjamin Cohen and Marc J. Friedman, Asst. Prosecutor, on the brief).

Lewis J. Paper, Newark, submitted a brief on behalf of amicus curiae American Civil Liberties Union of New Jersey.

The opinion of the court was delivered by

SCHREIBER, J.

We are called upon in this case to interpret the technical assistance provision of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-12. More particularly, the issue is whether under that provision a court may order a telephone company to trace a phone call so as to ascertain a phone number (and presumably the identity of the person calling from that number) from which calls are being made to another telephone which has been subjected to a lawful intercept order.

The question arose in a virtually undisputed factual setting. On September 18, 1975 the Assignment Judge of Essex County authorized the prosecutor to intercept a phone used for gambling operations (hereinafter referred to as phone # 1) for 30 days. Pursuant to that order, conversations were intercepted from September 20, 1975 to September 24, 1975. When the New Jersey Bell Telephone Company refused the prosecutor's request to make an in-progress trace to ascertain a number (phone # 2) from which calls were being made to the intercepted phone, the prosecutor obtained an order to show cause why the company should not be compelled to comply with his request. As disclosed in his moving papers, the prosecutor sought the in-progress trace to identify a person calling the tapped phone. The prosecutor made it clear in the oral argument before the Assignment Judge that the request was being made exclusively on the basis of the existing order to intercept phone # 1. No technical assistance was being sought to tap phone # 2.

The Assignment Judge denied the order. He reasoned that the State was "starting a new interception," and that no technical assistance was necessary to intercept phone # 1. He stated that he would entertain an application supported by the appropriate affidavits to compel the company to furnish technical assistance to intercept phone # 2. The State appealed. Only subsequent to the oral argument before the Appellate Division on the ultimate issue of whether the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A-1 et seq. (hereinafter "New Jersey Act"), authorized an in-progress trace on the basis of an existing wiretap intercept, did that court, sua sponte, request briefs on whether, apart from the statute, a court had the power to compel an in-progress trace. The Appellate Division reversed. 138 N.J.Super. 404, 351 A.2d 356 (1975). It first held that the telephone company could be compelled to make a trace "by grand jury subpoena or by court order similar to a search warrant." Id. at 407, 351 A.2d at 358. Second, it interpreted the technical assistance provision of the New Jersey Act to authorize use of an in-progress trace to obtain information concerning the identity of a party calling to the intercepted phone.

We granted the telephone company's petition for certification. 70 N.J. 144, 358 A.2d 191 (1976). The American Civil Liberties Union was granted leave to intervene as amicus curiae and to file a brief.

The New Jersey Act, N.J.S.A. 2A:156A-1 et seq., authorizes the Attorney General, a county prosecutor or the chairman of the State Commission of Investigation to apply for and obtain, under certain circumstances, an order authorizing interception of a wire or oral communication, N.J.S.A. 2A:156A-8. In the order authorizing that interception, the court, upon request, must direct the telephone company to furnish all "technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier is affording the person whose communications are to be intercepted," that is, the phone being tapped. N.J.S.A. 2A:156A-12. A fair reading of this language makes it clear that the assistance called for is that necessary physically and mechanically to "accomplish the interception." The word "intercept" is defined as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device." N.J.S.A. 2A:156A-2c. "Contents" is defined to include any information concerning the identity of the parties to such communication. N.J.S.A. 2A:156A-2g. It is clear that contents refers only to the information obtainable through the aural acquisition of the interception.

The nature of the technical assistance which may be compelled under the New Jersey Act is strictly limited. The only assistance sanctioned is that type necessary to make the interception unobtrusively and with a minimum of interference to the phone being tapped. The assistance must be directed to eliminating any disruption of service to the tapped phone in such a manner that the user of that phone will not be aware it is being tapped. The in-progress trace, which is a method of tracing a phone call to the point of origin, it not related to those purposes and does not inch the interception any closer to those objectives.

It is essential to recognize that an in-progress trace in no way monitors a tapped phone. The tracing process identifies electrical paths and mechanical instrumentalities in use in a given time period. It does not disclose whether a communication occurred or, if it did, the aural contents of that communication. It in no way assists in accomplishing interception of the phone being tapped, but, rather, traces a phone call made to a tapped phone back to its place of origin and then prints the number from which the call has been made. See State v. Hibbs, 123 N.J.Super. 152 154-159, 301 A.2d 789 (Mercer Cty.Ct.1972) (describing mechanics of an in-progress trace), aff'd 123 N.J.Super. 124, 301 A.2d 775 (App.Div.1973).

In this case the phone company had furnished the necessary assistance for an interception and the prosecutor had been successfully tapping phone # 1 and recording conversations for four or five days. Apparently that interception had been and was being undertaken unobtrusively and with a minimum of interference. The conversations were being overheard. The request for the in-progress trace was, if anything, a testament to the success of the interception. The mere inability to identify the party who had made the call to the intercepted phone or to understand comments during the conversations does not mean that the interception had not been accomplished. The prosecutor was not seeking assistance necessary to accomplish the interception of phone # 1. What he really desired, as reflected in the detective's affidavit on which the prosecutor relied on the motion, was "an electronic surveillance" of the telephone facility which would be revealed by the in-progress trace, that is, phone # 2.

Our construction of the act to disallow the in-progress trace sought here accords due deference to constitutional precepts and legislative policy. Wiretap statutes implicating as they do an intrusion into individual rights of privacy, constitutionally and legislatively recognized, should generally be strictly construed. The Fourth Amendment protection from unreasonable searches is well settled. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a decision suppressing evidence obtained by an electronic recording device attached to the outside of a public telephone booth, Mr. Justice Stewart wrote:

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. (389 U.S. at 353, 88 S.Ct. at 512, 19 L.Ed.2d at 583)

Because of this constitutional principle the United States Supreme Court has construed the federal wiretap act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520) strictly. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). See J. L. Cranwell, "Judicial Fine-Tuning of Electronic Surveillance," 6 Seton Hall L.Rev. 225, 266 (1975). The Fourth Amendment to the Federal Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is restated in the New Jersey Constitution. N.J.Const. (1947), Art. 1, par. 7, and its policy likewise calls for a strict construction of the New Jersey Act. See also State v. Fariello, 71 N.J. 552, 559, 366 A.2d 1313 (1976).

Furthermore, the New Jersey Legislature has seen fit to condemn tapping a telephone line. A 1930 law made it a misdemeanor to tap or make any connection with a telephone line or to aid any person to cause that to be done. L.1930, c. 215, § 1, p. 987. This proscription was continued until 1968, see R.S. 2:171-1 (1937) and N.J.S.A. 2A:146-1, when it was repealed, L.1968, c. 409, § 27, and replaced by a substantially similar ban included in the wiretapping statute under review. See L.1968, c. 409, § 3. For a case discussing the broad sweep of the former prohibition, see Morss v. Forbes, 24 N.J. 341, 132 A.2d 1 (1957). The existing successor provision prohibits any person from wilfully intercepting or procuring any other person to...