State v. Mollica

• Decision Date: 31 July 1986
• Citation: State v. Mollica, 520 A.2d 837, 214 N.J.Super. 658 (N.J. Super. 1986)
• Parties: STATE of New Jersey v. Primo V. MOLLICA and Augustine Ferrone, Defendants.
• Court: New Jersey Superior Court

Page 658

214 N.J.Super. 658

520 A.2d 837

STATE of New Jersey v. Primo V. MOLLICA and Augustine Ferrone, Defendants.

Superior Court of New Jersey, Law Division Criminal, Atlantic County.

Decided July 31, 1986.

Leo P. Cox, Dep. Atty. Gen., for State of New Jersey (W. Cary Edwards, Jr., Atty. Gen.)

B. Dennis O'Connor, Trenton, for defendant Mollica.

Francis J. Hartman, Moorestown, for defendant Ferrone, (Francis J. Hartman, Chartered).

OPINION

PERSKIE, P.J.F.P. ^*

Defendants seek to exclude from evidence documents seized at the execution of search warrants which were issued in reliance upon telephone toll records obtained without judicial warrant by the Federal Bureau of Investigation and turned over to the State Police "on a silver platter." Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). Is the use of the toll records permitted in these proceedings notwithstanding that they could not have been used if obtained directly by the State Police?

The procedural background for this question must be outlined in detail, as it is, regrettably, somewhat involved and protracted.

In January 1984 the State Grand Jury returned a two count indictment charging defendants with violations of N.J.S.A. 2C:37-2, promoting gambling, and N.J.S.A. 2C:37-3(a)(1), possession of gambling records. The matter was assigned for trial to Atlantic County.

The State alleges that defendants, while registered as guests at Caesars Boardwalk Regency Casino Hotel in Atlantic City in July 1983, "maintained premises, paraphernalia and equipment ... in connection with a bookmaking enterprise." Executing a search warrant issued by a judge of the Superior Court on July 14, 1983, the State Police arrested defendants in the hotel and confiscated certain records which constitute the principal evidence in support of the State's case.

Defendants moved to suppress that evidence. Incident to the motion, I determined that State Police Detective John Medolla had submitted an affidavit in support of the application for the search warrant in which, in relevant part, he testified as follows:

a. Information was received by me, Det. J. Medolla # 2578, of the New Jersey State Police, from a reliable federal authority who has personal knowledge that sports bets are being accepted by the aforementioned described individual. The source of the FBI's information came about as the result of several anonymous phone calls received during the months of June and July 1983. The anonymous phone caller advised the following: an individual known personally by the caller named AUGUSTINE FERRONE and who is described in Section 3, paragraph 2 is the principal participant in a bookmaking enterprise. He described AUGUSTINE FERRONE as being a large scale lay-off man (Lay-off or edge-off is a term utilized by bookmakers. It refers to a person who accepts large wagers from other bookmakers enabling them to minimize their loses [sic ] ). The caller advised that in the earlier part of May 1983, AUGUSTINE FERRONE occupied a suite of room [sic ] in Caesars Hotel where he conducted his illegal bookmaking enterprise. The caller explained that the method of operation in which AUGUSTINE FERRONE conducts his illegal enterprise is to call numerous bookmakers throughout the United States for the purpose of receiving their lay-off action. In addition, AUGUSTINE FERRONE calls various sports lines and weather services to obtain the latest conditions as well as the various point spreads. The caller advised that in addition to the month of May 1983, AUGUSTINE FERRONE has occupied rooms in Caesars Hotel/Casino on numerous occasions at which time he has conducted illegal bookmaking.

b. A check of Caesars telephone records revealed that AUGUSTINE FERRONE did, in fact, occupy a suite of rooms in the earlier part of May 1983 as well as on numerous occasions. This would substantiate the callers [sic ], information in regards to AUGUSTINE FERRONE occupying rooms in Caesars.

c. Telephone tolls were gathered during the time frame that AUGUSTINE FERRONE occupied rooms in caesars [sic ], they reflected the following:

1. There was an outgoing call placed from Caesars to telephone facility 702-382-1600. A check in the Hill-Donnelly Cross Reference revealed that 702-382-1600 is listed to Binions Horseshoe Hotel and Casino, 128 Fremont Avenue, Las Vegas, Nevada.

It should be noted that the above telephone number appears very frequently on the tolls of sports bookmakers. The number is a 24 hour sports service that lists daily results of sporting events including the odds and the current line.

2. There was an outgoing call placed from Caesars to telephone facility 213-986-9710. The telephone number is known to the Las Vegas FBI office as being listed to Sports Publications, 10548 Victory, North Hollywood, California.

This telephone number furnishes to the caller prerecorded sports line information and sports results.

3. There was an outgoing call placed from Caesars to telephone facility 312-976-1212. The telephone number is known to Chicago FBI office as a National Weather Information Center....

5. Records obtained from Caesars Hotel and Casino reflect numerous toll calls were charged to AUGUSTINE FERRONE [sic ] room. A review of those calls indicate a classic bookmaking pattern, i.e. calls were made during the same time period each day and were made in rapid succession....

After the issuance of the search warrant on July 13, but before any execution, Detective Medolla returned to the issuing judge with a "supplemental addition" to the application for a search warrant in the form of an affidavit dated July 14. That affidavit provided the following information:

a. Additional information was received by me, Detective Medolla # 2578, of the New Jersey State Police, from the FBI who has knowledge that sports bets are being accepted by the aforementioned described individual. The same FBI source, who gave the information in regards to Augustine Ferrone's bookmaking operation advised the following:

An individual known personally by the FBI's source named Primo Mollica and who is described in Section 2 Paragraph 1 is an assistant to Augustine Ferrone in his, Ferrone's, bookmaking enterprise. The source advised that Primo Mollica will occupy a suite of rooms during the same time frame as Augustine Ferrone and will be in close proximity of Augustine Ferrone's room at all times. The function of Primo Mollica is to interface with Augustine Ferrone and to assist with the lay-off action.

b. A check with Caesars Hotel/Casino records revealed that Primo Mollica did, in fact, register in a suite of rooms similar to Augustine Ferrone's rooms. (This would substantiate the FBI's source in regards to Primo Mollica staying in rooms within a close proximity of Augustine Ferrone and registered in Caesars Hotel in the same time frame.) ...

When the judge issued the second search warrant on July 14, the warrants were executed and defendants arrested.

Defendants raised several challenges to the validity of the search warrants. Relevant here is only the claim that the seizure of the toll records without a warrant violated defendants' constitutional privilege against unreasonable search and seizure, ¹ and was contrary to the standards established in State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). In the Hunt decision the Supreme Court held that individuals have protectible interests in the privacy of long distance toll records maintained by the telephone company with respect to calls made from the home. I determined that the doctrine of the Hunt decision was applicable to telephone toll records maintained by and obtained from the hotel, reasoning that there was a sufficient expectation of privacy in such records to require judicial process before such records could be seized by the State Police. Relying upon Medolla's affidavits as to the seizure of the records, and the assertion, not then challenged by any party, that the State Police had obtained the telephone toll records from Caesars without warrant, I granted defendants' application for the invalidation of the search warrants and the suppression of the evidence.

The State petitioned the Appellate Division for leave to file an interlocutory appeal of that order. While the application for leave to appeal was pending, but prior to a ruling by the Appellate Division, the State "learned" that, in fact, the State Police had not obtained the telephone toll records from the hotel, but rather had received them from agents of the Federal Bureau of Investigation. On this basis the State moved before me for reconsideration of the suppression order. Before I could respond to the motion, the Appellate Division granted leave to appeal, and I then determined that I lacked jurisdiction to entertain the reconsideration application until such time as the Appellate Division had ruled on the interlocutory appeal.

In due course the Appellate Division affirmed the order suppressing the evidence. In an unpublished decision ² the Court noted, "We perceive no material distinction between the expectation of privacy in telephoning from a home and in telephoning from a hotel room. Warrantless searches of hotel rooms have long been held to violate Fourth Amendment rights; evidence seized in such searches has been suppressed" (citations omitted).

The Appellate Division observed:

The State represents as a fact on appeal a factual assertion which was not before the trial court: that it obtained the toll records of defendants' telephone calls not from the hotel but from the Federal Bureau of Investigation. Because, arguably, an FBI seizure was permissible under the Federal Constitution, see Smith v. Maryland, 442 U.S. 735 [99 S.Ct. 2577, 61 L.Ed.2d 220] (1979), the State urges that the toll records are admissible in its courts, as well as in the Federal courts, under the so-called "silver platter" doctrine, see Lustig v. United States, 338 U.S. 74, 78, 79 [69...