State v. Droutman

• Decision Date: 08 June 1976
• Citation: 143 N.J.Super. 322,362 A.2d 1304
• Parties: STATE of New Jersey, Plaintiff, v. Stuart DROUTMAN, Defendant. (Criminal)
• Court: New Jersey Superior Court

Page 322

143 N.J.Super. 322

362 A.2d 1304

STATE of New Jersey, Plaintiff, v. Stuart DROUTMAN, Defendant.

Superior Court of New Jersey, Law Division,

(Criminal).

June 8, 1976.

James E. Flynn, Hoboken, for defendant (James P. Dugan, Bayonne, attorney).

Walter J. McNicholas, Asst. Prosecutor, for the State (James T. O'Halloran, Prosecutor of Hudson County, attorney).

THURING, J.S.C.

Defendant, charged with disorderly conduct for making annoying and harassing telephone calls under N.J.S.A. 2A:170--29(4), ¹ now moves to suppress evidence of his identity obtained as a result of an alleged illegal telephone trace. He contends that the trace was in violation of the Fourth Amendment of the United States Constitution and of N.J.S.A. 2A:156A--1 Et seq., the New Jersey Wiretapping and Electronic Surveillance Control Act. Specifically, he complains that the State and the New Jersey Bell Telephone Company (company) illegally used tracing equipment to detect his telephone number without benefit of a search warrant or court order.

The description of the company's tracing equipment and method used to locate harassing callers is here omitted since State v. Hibbs, 123 N.J.Super. 152, 301 A.2d 789 (Cty.Ct.1972), aff'd 123 N.J.Super. 124, 301 A.2d 775 (App.Div.1973), comprehensively covers the subject.

The motion presents the issue of whether the use of a telephone company's tracing equipment to record the origin of telephone calls from defendant to a complainant-subscriber is a 'search' within the meaning of the Fourth Amendment. The court however must first determine whether the degree of state involvement with the challenged conduct is sufficient to trigger constitutional consideration.

WAS STATE ACTION HERE INVOLVED?

The Fourth Amendment's proscription against unreasonable searches and seizures functions to limit official powers and to deter governmental abuses. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The exclusionary rule of evidence, derived from the Fourth Amendment and made applicable to the states through the Due Process Clause of the Fourteenth Amendment, is designed to implement this policy. Mapp v. Ohio,367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The impact of Mapp, however, does not extend to searches conducted by private individuals. State v. Robinson, 86 N.J.Super. 308, 318, 206 A.2d 779 (Law Div.1965); Geniviva v. Bingler, 206 F.Supp. 81, 83 (W.D.Pa.1961). Accordingly, the Fourth and Fourteenth Amendments do not require the exclusion of evidence obtained through private action. Del Presto v. Del Presto, 97 N.J.Super. 446, 235 A.2d 240 (App.Div.1967); Barnes v. United States, 373 F.2d 517 (5th Cir. 1967). Evidence gathered solely through nongovernmental effort can be reported or surrendered to the police without violating the defendant's constitutional right 'regardless of the means by which the civilian discovered the evidence.' State v. Frank, 112 N.J.Super. 592, 594, 272 A.2d 309, 310 (App.Div.1971).

It is equally clear, however, that joint participation between private citizens and police officers is sufficient to bring such conduct within the purview of the Constitution. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963); Stapleton v. Los Angeles Cty. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 477 P.2d 967 (Sup.Ct.1969). The minimal degree of official involvement with private action needed to activate Fourth Amendment safeguards is set forth in United States v. Clegg, 509 F.2d 605 (5 Cir. 1975). It was there held (at 609) that 'only when the government has Preknowledge of and yet Acquiesces in a private party's conducting a search and seizure, which the government itself, under the circumstances, could not have undertaken' does the problem of compliance with Fourth Amendment standards arise. (Emphasis supplied) If the facts support this threshold level of tacit cooperation, state action would exist for purposes of this argument.

A stipulation by the parties that law enforcement officials neither participated nor intervened in any stage of the tracing operation effectively resolves this inquiry. It is clear that police and the prosecutor's office were not notified of the investigation's inception, nor was their approval or authorization ever sought. The use of the tracing equipment was exclusively within the expertise and control of the company, initiated by the complaint of the telephone subscriber. It was operated pursuant to the company's internal annoyance call program, in existence since 1965. State v. Hibbs, supra 123 N.J.Super. at 156, 301 A.2d 789.

Since nonparticipation by the State in the trace is conceded, defendant's state action argument rests solely on the legal implication of the State Board of Public Utility Commissioners' (PUC) regulatory authority over the company. Defendant argues that by virtue of the regulatory supervision actions of the company are attributable to the State.

The mere fact that a public utility is subject to greater regulation than other private corporations or private individuals does not necessarily imply state action however the utility acts. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Lucas v. Wisconsin Electric Power Co., 322 F.Supp. 337 (E.D.Wis. 1970), aff'd 466 F.2d 638 (7 Cir. 1972), Cert. den. 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973); Doe v. Bridgeton Hospital Ass'n., 130 N.J.Super. 416, 431, 327 A.2d 448 (Law Div.1974) cert. granted 69 N.J. 85, 351 A.2d 13 (1975). In testing the existence or nonexistence of state action the inquiry should not turn on the relationship between the private entity and the state In general but should focus on the relationship between the state and the Challenged conduct of the regulated entity. Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 351, 95 S.Ct. 449. The court must therefore determine whether the state has Significantly involved itself in the alleged illegal tracing program of the telephone company. See Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 173, 92 S.Ct. 1965.

Jackson presented a situation where an electric company discontinued service to a subscriber due to alleged arrearages. Such business practice was approved by the state public utilities commission. The Supreme Court held that even though the utility was subject to extensive regulation in many particulars and enjoyed a monopoly in its service territory state action did not exist. The court based its decision, in part, on the fact that no relationship existed between the company's action and its monopoly status or the nature of its regulation that would implicate the state in the activity. See also, Lucas v. Western Electric Power Co., supra.

Here the telephone company, like other public utilities, enjoys a monopoly protected and regulated by the State through the PUC. In this regard the Commission not only approves rates which the company charges its subscribers, N.J.S.A. 48:2--21, but is also empowered to issue regulations necessary for the supervision of the utility. N.J.S.A. 48:2--13. The broad regulatory scheme extends to practices of the company affecting the rendition of proper and adequate service to the public. N.J.S.A. 48:2--23 and 25. Arguably it may encompass the tracing operation employed by the company herein, particularly if the activity is to be considered part and parcel of the normal service due to subscribers. Although state action may emanate from rulings of administrative agencies, Moose Lodge No. 107 v. Irvis, supra at 179, 92 S.Ct. 1965, defendant cites no specific regulation of the PUC which has any significance on the issue presented.

State action exists when a state agency 'affirmatively orders or Specifically approves the (challenged conduct) in the course of its regulatory rule making'. Jackson v. Metropolitan Edison Co., 483 F.2d 754, 757 (3rd Cir. 1973), aff'd 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). (Emphasis supplied.) Mere approval by the state agency, on the other hand, of a business practice will not suffice for state action purposes where the agency 'has not put its own weight on the side of the proposed practice by ordering it.' 419 U.S. at 357, 95 S.Ct. at 456.

In Public Utility Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), a street railway company, whose service and equipment were subject to regulation by the District of Columbia PUC, provided its passengers with radio service. It was argued that this practice was constitutionally impermissible. The Supreme Court discerned a sufficiently close relationship between the Federal Government and the radio service to necessitate a consideration of the First and Fifth Amendments. The Court's finding of governmental action was based principally on the fact that the PUC, after conducting formal public hearings, affirmatively approved the action alleged to be objectionable.

Here there is nothing in the record showing a company hearing before the PUC resulting in the issuance of any regulation or order approving the tracing activity.

On the contrary, it is clear that the tracing operation was undertaken on the initiative of the company alone, pursuant to its in-house annoyance call program, without any specific directive or authorization of the PUC.

The annoyance-call program is purely company policy and reflects motives and consideration unique to the company. Employing its own technical expertise and responding to what it viewed as an ever-increasing threat to the quality of its services, the company developed sophisticated tracing equipment capable of identifying the source of harassing and annoying calls. A trace is utilized to protect both the interests of the company and its subscribers and represents in this instance an independent course...