State v. Hunt

• Court: New Jersey Supreme Court
• Writing for the Court: SCHREIBER; The late Judge George Schoch, then Assignment Judge of Mercer County; PASHMAN; Stated succinctly; HANDLER
• Citation: State v. Hunt, 450 A.2d 952, 91 N.J. 338 (N.J. 1982)
• Decision Date: 18 August 1982
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Merrell HUNT and Ralph Pirillo, Sr., Defendants-Appellants.

Page 338

91 N.J. 338

450 A.2d 952

STATE of New Jersey, Plaintiff-Respondent, v. Merrell HUNT and Ralph Pirillo, Sr., Defendants-Appellants.

Supreme Court of New Jersey.

Argued May 4, 1982.

Decided Aug. 18, 1982.

Edwin J. Jacobs, Jr., Atlantic City, for defendants-appellants (Tort, Jacobs, Gross, Rosenberger & Todd and Goldenberg, Mackler & Feinberg, Atlantic City attorneys; Harry A. Goldenberg, Atlantic City, of counsel; John F. Collins, Atlantic City, of counsel and on brief; Alan M. Lands, Atlantic City, on the brief).

Daniel Louis Grossman, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by

SCHREIBER, J.

Merrell Hunt and Ralph Pirillo, Sr. were indicted for bookmaking, N.J.S.A. 2A:112-3, maintaining a place for gambling, N.J.S.A. 2A:112-3, conspiracy to commit bookmaking, N.J.S.A. 2A:98-1, and aiding and abetting bookmaking, N.J.S.A. 2A:85-14. After the defendants' motions to suppress evidence because of allegedly unlawful searches and seizures by the police were denied, the defendants pursuant to a plea bargain pled guilty to conspiracy and bookmaking. The remaining counts were dismissed. Hunt was sentenced to four months in the Atlantic County jail, placed on probation for three years, and fined $1,000. Pirillo was sentenced to 75 days in the Atlantic County jail, placed on probation for two years, and fined $500.

The defendants appealed to the Appellate Division, raising eight separate issues relating to their suppression motions. The convictions were summarily affirmed. We granted defendants' joint petition for certification, ---N.J. ---, --- A.2d --- (1982), primarily to consider the constitutionality of the warrantless search and seizure of defendants' telephone toll billing records. We have considered the other issues raised by the defendants and find no merit in them. Accordingly, our discussion will be primarily directed to the disclosure of the telephone records.

The late Judge George Schoch, then Assignment Judge of Mercer County, authorized the wiretapping of the telephone of Robert A. Notaro, who was engaged in an illegal sports bookmaking enterprise. At least three telephone conversations between Notaro and the defendant Hunt relating to betting were overheard. The State police, having been alerted by one of the conversations, also observed Notaro meet with Hunt and Pirillo in Atlantic City on December 1, 1977 to discuss some gambling business. At about the same time a reliable informant advised the State police that Pirillo was a bookmaker with whom he had previously placed wagers on sporting events.

On September 18, 1978, another reliable informant advised Detective M. Robert Warner of the State police that defendant Hunt was conducting a gambling business daily between 11:00 a. m. and 9:00 p. m. over two telephones with different numbers. One of these numbers had already been revealed during the 1977 investigation. The two telephone numbers were listed in defendant Hunt's name at 17 North Hartford Ave., Apt. 5, Atlantic City. Detective Warner next went to the offices of the New Jersey Bell Telephone Company and obtained Hunt's home toll billing records for both telephone numbers for the two month period between June 23 and August 23, 1978. These records indicated frequent calls to Sports Phone Service, which furnishes up-to-the-minute data on results of sporting events.

Detective Warner listened in on a telephone conversation on September 30, 1978 between the informant and Hunt. Hunt gave some odds on certain college football games and the informant placed two bets. The next day the detective listened to another conversation between the informant and Hunt, during which odds were quoted and the informant placed a bet. The informant advised Warner that Hunt was a middleman working for someone else. On October 4, 1978, Detective Warner applied to the Superior Court for permission to install pen registers on the two telephones for 10 days. The pen register is a device that records the numbers dialed on a telephone. See In re Wire Communication, 76 N.J. 255, 264 n.2, 386 A.2d 1295 (1978) (describing mechanics of a pen register). The intercept application was granted and the pen registers attached.

Between October 6 and October 11, 35 calls were made from Hunt's telephones to a telephone number listed in the name of defendant Pirillo at 2205 Revere Boulevard, Brigantine, N.J. Moreover, calls were made to certain Philadelphia telephone numbers of known gamblers.

Detective Warner next obtained a court order authorizing the wiretapping of Hunt's telephones. The monitoring occurred on a daily basis between October 14, 1978 and October 23, 1978. Based on information obtained during the wiretapping, which clearly established the bookmaking activity, Detective Warner obtained a warrant to search Hunt, his residence on North Hartford Avenue, and his car, and Pirillo, his home in Brigantine, and his car. The detective went to Hunt's home and found Hunt at the kitchen table surrounded with gambling paraphernalia. There was a bulletin board containing slips of paper with names and figures. More slips of paper were found in the bedroom along with $6,000. No evidence was uncovered during the other authorized searches.

The defendants moved to suppress the following evidence: (1) Hunt's toll billing records; (2) the data obtained from the pen registers; (3) the information obtained from the wire interceptions of the Hunt and Pirillo telephones between October 14 and October 23; and (4) the evidence uncovered during the search of the Hunt and Pirillo premises.

As indicated at the outset, our concern is with the toll billing records. The key questions are whether an individual has a protectible interest in those records under the Fourth Amendment to the federal Constitution or Article I, par. 7 of the New Jersey Constitution. Both constitutional provisions acknowledge the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The historical roots of the Fourth Amendment centered about protection from unwarranted intrusions into the home. This privacy interest in the home and place of business has continued unabated throughout our judicial history. Indeed, as the telephone has taken its place in the home and at business, the privacy interest has expanded to include telephone conversations.

The United States Supreme Court has protected a telephone conversation from governmental eavesdropping by an electronic recording device. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That Court has also indicated that it will not protect information or material beyond the conversation itself. We surmise as much because of its decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In that case, without a warrant or court order, the police placed a pen register on the defendant's telephone. On the basis of information obtained from the pen register and other evidence, the police obtained a warrant to search the defendant's home. The defendant sought to suppress the evidence obtained. The Supreme Court rejected the motion.

Justice Blackmun, writing for the majority of five, stated that two discrete questions were involved. The first was whether the "individual, by his conduct, has 'exhibited an actual (subjective) expectation of privacy'...." Id. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226. He answered this in the negative, holding that people do not generally entertain any actual expectation of privacy in the numbers dialed because the telephone company must be made aware of the number in order to effectuate the call, bill the caller, and use the information for other legitimate reasons. The second question was whether, irrespective of the individual's expectation of privacy, society was prepared to recognize such an expectation as reasonable. Id. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 227. Justice Blackmun also answered this question in the negative because a person has no legitimate expectation of privacy in information voluntarily turned over to third parties. He analogized the telephone caller to a bank depositor who has no legitimate expectation of privacy in financial information transmitted to banks and exposed to their employees. ¹

The expectation of privacy in a pen register, both subjectively and objectively, is substantially similar to that in toll billing records. The difference between toll billing records, which reflect long distance completed calls, and the pen register, which identifies all local and long distance numbers dialed, whether completed or not, does not have any impact upon Justice Blackmun's analysis. His rationale places the toll billing record into the pen register mold. This conclusion is borne out by the federal courts that have passed on this question and have concluded that toll billing records are not entitled to Fourth Amendment protection. Reporters Committee v. American Telephone & Telegraph Co., 593 F.2d 1030 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); United States v. Fithian, 452 F.2d 505 (9th Cir. 1971); DiPiazza v. United States, 415 F.2d 99 (6th Cir. 1969).

Our inquiry does not end at this point, for we must consider the application of the search and seizure safeguard in the New Jersey Constitution. This Court has seen fit to hold that the search and seizure provisions in the federal and New Jersey Constitutions are not always coterminous, despite the congruity of the language. State v. Alston, 88 N.J. 211, 225-26, 440 A.2d 1311 (1981); State v. Johnson, 68 N.J. 349, 353, 346 A.2d 66 (1975); cf. State v. Schmid, 84 N.J. 535, 557, 423 A.2d 615 (1980) (broader concepts of individual rights of speech under New Jersey Constitution). Though notions of federalism may seem to justify this difference, enforcement of...