State v. McDermott

• Decision Date: 29 March 1979
• Citation: 167 N.J.Super. 271,400 A.2d 830
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Michael McDERMOTT, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 271

167 N.J.Super. 271

400 A.2d 830

STATE of New Jersey, Plaintiff-Appellant, v. Michael McDERMOTT, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 6, 1979.

Decided March 29, 1979.

L. Gilbert Farr, Asst. Pros., for plaintiff-appellant (David Linett, Prosecutor, attorney).

Stephen E. Klausner, Somerville, for defendant-respondent.

Wayne J. Martorelli, Deputy Atty. Gen., as amicus curiae (John J. Degnan, Atty. Gen., attorney; Lowell Espey, Deputy Atty. Gen., of counsel and on the brief).

Before Judges LYNCH, CRANE and HORN.

The opinion of the court was delivered by

HORN, J. A. D.

On August 23, 1978 we granted leave to the Prosecutor of Somerset County to appeal a suppression-of-evidence order entered by the trial judge on July 24, 1978. Subsequently, on October 18, 1978, we authorized the Attorney General to participate, argue and file a brief as Amicus curiae on behalf of the State. We narrate the events leading to this appeal.

On January 25, 1978 a Somerset County grand jury indicted defendant McDermott on two counts. The first charged that on October 9, 1977 he had possession of marijuana in excess of 25 grams, contrary to N.J.S.A. 24:21-20 a(4). The second charged that on the same date defendant distributed marijuana to an undercover officer, contrary to N.J.S.A. 24:21-19 a(1).

Defendant thereafter made a timely motion to suppress certain evidence on the ground that the evidence was tainted as the result of an illegal interception of a telephone call made by an informer and overheard on an extension telephone by a municipal detective. Specifically, defendant contended that: (1) the call was overheard on the extension telephone without the consent of the informer; (2) the prosecutor of the county had not made the determination required by the New Jersey Wiretapping and Electronic Surveillance Control Act (act), N.J.S.A. 2A:156A-4(c) ¹, and (3) as we interpret the language of the motion, that a suction-cup induction-coil recording apparatus was attached to the extension telephone. ²

At the outset it may be assumed that defendant's contention that the informer did not consent to the detective's listening to the conversation over the extension telephone has been abandoned. The evidence established that the informer did consent.

Following an evidential hearing on said motion, the trial judge entered the suppression order which is the subject of this appeal. It directed that * * * the initial telephone call placed on October 9, 1977 by the informant to the defendant and the meeting between defendant and members of the Franklin Township Police Department and/or the Somerset County Prosecutor's Investigators staff which was a direct result of said telephone call, and any evidence derived therefrom, be and hereby is suppressed, and such evidence shall not be received in evidence at any trial, hearing or proceeding.

The evidential hearing disclosed that an informer was willing to cooperate with the police to apprehend defendant, who had earlier sold marijuana to the informer. On October 9, 1977 at about 3 p. m., under arrangements with the police the informer called defendant from a desk telephone in the Franklin Township police headquarters and arranged for a "friend" (who was to be Franklin Township Detective Racz) to purchase marijuana from defendant. A meeting was arranged with defendant for 8 p. m. that evening. This conversation was monitored and recorded by Detective Racz by the use of an extension telephone in the police headquarters, to which was attached a suction-cup induction coil, which in turn was plugged into a recorder.

Before the scheduled meeting was held with defendant, a county detective, acting in cooperation with the township police department, submitted a written request to the county prosecutor for "consensual interception authorization" pursuant to N.J.S.A. 2A:156A-4(c). The request in part stated:

Factual basis for request: Informant to place telephone call to Mike McDermott to order a quantity of Marijuana. Informant has purchased marijuana from McDermott in the past and as recent as one day ago. Informant was told by McDermott when the informant wanted to purchase a quantity of marijuana to call him first at telephone # 828-5601.

It appears from the notation on the prepared form of request that the prosecutor approved the request by telephone at 8:20 that same evening. Thereafter, we are told that another telephone call was made by the informer to defendant which resulted in a meeting at about 10 p. m., during which defendant sold marijuana to Detective Racz.

For convenience, we hereinafter refer to the Attorney General and the prosecutor jointly as "appellants." Their respective arguments for overturning the challenged order parallel each other. Both urge that the action of Detective Racz in listening to the first conversation by use of an extension telephone was not an "interception" within the meaning of the act and that if it is considered to be an interception, then it falls within the exception of § 2(d)(1), I. e., that an extension telephone is not an "intercepting device" and the use of the recording mechanism did not alter that fact.

The first issue which we address is whether the use of the extension telephone was an "interception," in violation of our act. State v. Christy, 112 N.J.Super. 48, 270 A.2d 306 (Cty.Ct.1970), referred to approvingly by our Supreme Court in State v. Dye, 60 N.J. 518, 291 A.2d 825 (1972), relates the history of our act. As stated therein, it was patterned after Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 Et seq. ³ See also, State v. Vizzini, 115 N.J.Super. 97, 100, 278 A.2d 235 (App.Div.1971).

The governing law before the enactment of the Omnibus Crime Control Act and our act was generally embodied in the Federal Communications Act of 1934, 47 U.S.C.A. § 605, and N.J.S.A. 2A:146-1 (since repealed, L.1968, C. 409, § 27). State v. Vizzini, supra. Neither of these statutes was violated by one who listened to a telephone conversation by means of a regularly used telephone extension with the consent of one of the parties to the conversation. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); State v. Carbone, 38 N.J. 19, 183 A.2d 1 (1962). The following statement in the majority opinion of the late Chief Justice Warren in Rathbun is widely quoted Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of Section 605, Interception, has not occurred. (355 U.S. at 111, 78 S.Ct. at 164)

Following the holding of Rathbun, Chief Justice Weintraub said in Carbone:

So long as the physical integrity of the established line is not violated, there is no interception within the meaning of section 605 (of the Federal Communications Act of 1934). (38 N.J. at 26, 183 A.2d at 4)

The majority of the cases held similarly. See Annotation, "Telephone Communication Interception," 9 A.L.R.3d 423, § 5 at 434 Et seq.; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The foregoing history was recounted to demonstrate that merely listening to another's telephone conversation in the related circumstances was not considered unlawful under prior law. We now turn to the provisions of our present wiretap act. Under both statutes (§ 2(c) and 18 U.S.C.A. § 2510(4)), "intercept" is defined to mean:

* * * the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.

"Intercepting device" is defined in § 2(d) ⁴ as follows:

d. * * * any device or apparatus that can be used to intercept a wire or oral communication other than (1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a communication common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or being used by a communication common carrier in the ordinary course of its business, Or by an investigative or law enforcement officer in the ordinary course of his duties; * * * ⁵. (Emphasis supplied)

It will be seen that without the use of an electronic mechanical or other device (intercepting device) an overhearing is not an "intercept" within the meaning of the act. Cf. State v. Gora, 148 N.J.Super. 582, 590-591, 372 A.2d 1335 (App.Div.1977). An extension telephone regularly installed "and being used * * * by an investigative or law enforcement officer in the ordinary course of his duties * * * " is not an intercepting device within the intent and purpose of either the federal statute, 18 U.S.C.A. § 2510(5), or our own statute, § 2(d)(1).

United States v. Harpel, 493 F.2d 346 (10 Cir. 1974), interpreted the provision of the Omnibus Crime Control Act, 18 U.S.C.A. § 2510(5), similarly. That case did not involve overhearing by police, but the court said:

* * * (T)here is no interception if the acquisition of the contents of the communication is accomplished through telephone equipment used in the ordinary course of business. (at 351)

As we view it, the necessity of there being consent by one of the parties to the conversation which is overheard by another by means of an extension telephone within the intent and meaning of U.S.C.A. § 2510(5), and § 2(d)(1) of our act is to comply with Fourth Amendment requirements, although consent of a party is a requisite under § 4(b), (c) (quoted Infra ) and (d), and 18 U.S.C.A. § 2511(c) and (d), which permit "intercept(s)" in the instances stated...