State v. Carbone, A--122

• Decision Date: 29 June 1962
• Docket Number: No. A--122,A--122
• Citation: 38 N.J. 19,183 A.2d 1
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Martin CARBONE and Pasquale Borrelli, Defendants-Appellants, and John Polo, Defendant.
• Court: New Jersey Supreme Court

Page 19

38 N.J. 19

183 A.2d 1

STATE of New Jersey, Plaintiff-Respondent, v. Martin CARBONE and Pasquale Borrelli, Defendants-Appellants and John Polo, Defendant.

No. A--122.

Supreme Court of New Jersey.

Argued May 8, 1962.

Decided June 29, 1962.

Thomas E. Durkin, Jr., Newark, for defendants-appellants (Gregory J. Castano, Newark, on the brief; George S. Grabow, Paterson, atty. for defendant-appellant Borrelli).

Brendan T. Byrne, Essex County Prosecutor, for plaintiff-respondent (C. William Caruso, Legal Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendants appeal from convictions for bookmaking and conspiracy to make book. We certified the matter before the Appellate Division considered it.

During a raid conducted under a search warrant, a police officer answered the telephone. The sole claim before us is that it was error to permit him to testify:

'I picked up the phone and said, 'Hello,' and the caller said, 'Pat' and I said, 'Yes.' He said, 'Give me Silky Jet at Laurel, five across."

The questions are whether (1) there was a violation of section 605 of the Federal Communications Act (47 U.S.C.); (2) if there was, the statute itself or sound judicial administration bars receipt of the evidence; and (3) the search-and-seizure provision of the Fourth Amendment was infringed.

I

We will start with the second and third of these questions.

In State v. Giardina, 27 N.J. 313, 315, 142 A.2d 609 (1958), we pointed out that the federal rule excluding evidence obtained in violation of the federal statute does not apply to the states. It had been so held in Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952), and Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957). After Giardina the doctrine was reiterated in Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961).

Defendants urge we should find those cases were silently overruled a few months after Pugach by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Mapp the Court, overturning its prior rulings, held the state courts must exclude evidence obtained by an unreasonable search and seizure in violation of the Fourth Amendment. Mapp, however, dealt solely with that constitutional provision. The federal rule excluding proof of messages intercepted in violation of section 605 rests upon the supervisory power of the judiciary rather than upon the command of either the statute or of a constitutional provision. We cannot assume that Mapp was intended to deny that thesis. Others have held that Mapp did not. Williams v. Ball, 294 F.2d 94 (2 Cir. 1961), cert. denied 368 U.S. 990, 82 S.Ct. 598, 7 L.Ed.2d 526 (1962); People v. Dinan, 11 N.Y.2d 350, 229 N.Y.S.2d 406, 183 N.E.2d 689 (Ct.App.1962).

Nor does wire-tapping as such involve a search or seizure within the Fourth Amendment. That was the holding of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and although the dissents in that case continue to claim strong support, Olmstead remains the controlling view of the Constitution. Goldstein v. United States, 316 U.S. 114, 120, 62 S.Ct. 1000, 86 L.Ed. 1312, 1318 (1942); Goldman v. United States, 316 U.S. 129, 135, 62 S.Ct. 993, 86 L.Ed. 1322, 1328 (1942); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). We find nothing to the contrary in Mapp. Accordingly we need not consider whether, if the Fourth Amendment did apply to the interception of a telephonic message, the search and seizure in the present case could be said to be 'unreasonable' in view of the fact that they occurred as an incident to a lawful arrest and as well a lawful search of the premises under the authority of a search warrant.

The remaining question with respect to exclusion of the evidence is the one we expressly left open in Giardina, 27 N.J., at p. 315, 142 A.2d 609:

'Hence the issue is not one of constitutional law or evidence. Rather, since an unauthorized disclosure of an illegally intercepted message itself constitutes a violation of a criminal statute, the question sought to be presented to us is whether as a matter of judicial administration we should countenance the commission of crime in our courtrooms. Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379 (Sup.Ct.1955), certified denied 350 U.S. 829, 76 S.Ct. 59, 100 L.Ed. 740 (1955). Our statute * * * expressly denounces the act of testifying, and the federal statute has been so construed. Nardone v. United States, 302 U.S. 379, 382, 58 S.Ct. 275, 82 L.Ed. 314 (1937); Schwartz v. State of Texas, supra (344 U.S. at page 201, 73 S.Ct. at page 244); Benanti v. United States, supra (355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126). The suggested issue is far-reaching, and we should not resolve it unless the case necessarily requires a decision. We are satisfied that it does not, for the reason that Mrs. Kolano's testimony does not fall within either the state or federal acts.'

We note that after Giardina the United States Supreme Court refused to restrain the use of wire-tap evidence in a State court. Pugach, supra, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678. And in People v. Dinan, supra, 11 N.Y.2d 350, 229 N.Y.S.2d 406, 183 N.E.2d 689, the New York Court of Appeals, by a vote of 4 to 3, held that wire-tap evidence will be accepted, the dissenters expressing the view that such evidence should be barred as a matter of state law.

In Giardina we found it unnecessary to decide the question. Here, too, the question need not be decided since we are satisfied that section 605 was not violated.

II

In deciding whether the federal statute embraces the case before us, 'we must bear in mind that we are construing criminal statutes and that the ultimate question is whether the witness is guilty of crime.' Giardina, supra 27 N.J. at p. 316, 142 A.2d at 610. This of course 'does not mean that a ridiculous result shall be reached because some ingenious path may be found to that end. Rather it means that a statute shall not be extended by tenuous interpretation beyond the fair meaning of its terms lest it be applied to persons or conduct beyond the contemplation of the Legislature.' State v. Provenzano, 34 N.J. 318, 322, 169 A.2d 135, 137 (1961).

Section 605 reads as follows (we have interpolated numbers for ease in referring to the several clauses):

(1) 'No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; (2) and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; (3) and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; (4) and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress.'

Defendants say the officer here 'intercepted' and divulged a communication without the authority of the 'sender' within the meaning of the second clause.

The facts are clear enough. The bettor thought he was speaking to 'Pat' and meant his message for him, but in fact the bettor gave his message directly to the officer. They were the only parties to the conversation. The officer did not 'intercept' a communication in the sense of intruding upon a conversation between two others. The question is whether this factual pattern comes within the denunciation of section 605.

The statute was not designed to create a new category of confidential communications. Indeed, the first clause expressly provides that the messages shall be produced by the carrier itself 'in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority.' See Newfield v. Ryan, 91 F.2d 700 (5 Cir.), cert. denied 302 U.S. 729, 58 S.Ct. 54, 82 L.Ed. 563 (1937). 'The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation.' Goldman v. United States, supra, 316 U.S., at p. 133, 62 S.Ct. 993, 995, 86 L.Ed., at p. 1327. 'The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone.' Rathbun v. United States, 355 U.S. 107, 110, 78 S.Ct. 161, 2 L.Ed.2d 134, 137 (1957).

The second clause of the statute protects the established line of transmission; the prohibition is against intervention into that channel. This is the view of it we find...