State v. Murphy

• Decision Date: 05 November 1975
• Citation: 349 A.2d 122,137 N.J.Super. 404
• Parties: STATE of New Jersey, Plaintiff, v. Edward MURPHY et al., Defendants. (Criminal)
• Court: New Jersey Superior Court

Page 404

137 N.J.Super. 404

349 A.2d 122

STATE of New Jersey, Plaintiff, v. Edward MURPHY et al., Defendants.

Superior Court of New Jersey, Law Division (Criminal).

Nov. 5, 1975.

Samuel R. DeLuca, Jersey City, for defendant Edward Murphy.

Abraham Prins, pro se (assisted by Mayer Winograd, Deputy Public Defender).

Robert M. Biagiotti, for defendant Rocco A. Santarsiero (Donald R. Conway, Hackensack, attorney).

John J. Hill, Jr., Asst. Prosecutor, Jersey City, for the State (James T. O'Halloran, Prosecutor of Hudson County, Jersey City, attorney).

THURING, J.S.C.

This is a motion by defendants to suppress judicially sanctioned telephone interceptions and evidence derived from such interceptions. A broad and multi-faceted attack on the wiretap orders and their execution is launched under 18 U.S.C.A. § 2510 Et seq., the 'Omnibus Crime Control Act of 1968,' and N.J.S.A. 2A:156A--1 Et seq., the 'New Jersey Wiretapping and Electronic Surveillance Control Act.'

The controversy arises out of an investigation into an alleged gangland murder of Alfred Nardone in New York City on April 22, 1974. Prior to Nardone's death a wiretap of a public phone at the 78 Club in Jersey City (hereinafter club), made during a drug conspiracy investigation, uncovered evidence of a relationship between an Edward Murphy and Nardone. After Nardone's demise the police believed that if they obtained authorization to tap phones in Murphy's home, evidence connecting Murphy to the slaying would be forthcoming.

A wiretap order for Mrs. Murphy's phones was approved on July 11, 1974. During that electronic surveillance evidence of gambling operations in the New York-New Jersey area came to the fore. Additional court-authorized extensions of the Murphy interception and subsequent wiretaps on defendant Santarsiero's phone took place, resulting in the indictment of defendants for conspiracy to violate the State's gambling laws.

Defendants' attack raises several issues not previously decided by our courts. Since the legality of later electronic surveillances in this case is dependent, in part, upon the validity of preceding ones, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962), the Court will begin its discussion with the original wiretap of the public telephone facility at the club. In aid of understanding, the issues will be set out with subheadings.

I Did the Court Order to Wiretap the Club Phone and the Execution of it Violate Defendants' Rights?

During the monitoring of the club facility from April 4, 1974 to the date Nardone died several telephone calls were intercepted between Nardone and other individuals. Several of the conversations, and particularly one between Murphy and Nardone, were relied upon in the affidavit submitted to the judge to establish probable cause for the order to tap the Murphy phones. All defendants contest the validity of the club wiretap on the ground that the overhearing of the communications of Nardone went beyond the scope of the wiretap order.

Aside from the legal sufficiency of defendants' argument the court initially observes that Prins and Santarsiero have no standing to challenge the legality of the club wiretap order and its execution. Any alleged defect in that regard is of no benefit to these two defendants since they are not 'aggrieved persons' under N.J.S.A. 2A:156A--2(k). That statute defines an aggrieved person as one 'who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.'

Prins and Santarsiero do not qualify as 'parties' to any of the intercepted conversations, nor is there any evidence to indicate that either is a person 'against whom' these interceptions were directed.

In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the court was called upon to determine which persons were entitled to relief when evidence was obtained from an alleged illegal electronic eavesdropping. The Supreme Court, in reiterating the rule enunciated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), granted standing only with regard to (1) conversations in which the accused Himself participated, or (2) all conversations occurring on the accused's Premises, regardless of whether he participated in the particular conversations in any way.

An aggrieved party, then, is one who has been the target of a search and seizure by electronic surveillance, and is to be distinguished from one who merely claims prejudice through the use of evidence gathered as a consequence of a search and seizure directed at someone else. State v. Cocuzza, 123 N.J.Super. 14, 24, 301 A.2d 204 (Law Div.1973). In that case it was held (at 25), 301 A.2d at 210 that a defendant 'may not 'vicariously' assert such personal Fourth Amendment rights of co-defendants who may have been affected by the defective initial wiretap order.'

Murphy, however, does have standing to attack the legality of the club wiretap since he was a party to a conversation within the meaning of N.J.S.A. 2A:156A--2(k).

Murphy contends that since no court authorization was sought to intercept the specific telephonic communications of Alfred Nardone over the public coin-operated telephone at the club, the order without naming Nardone was in violation of the Fourth Amendment to the United States Constitution. If defendant's contention is to be construed as suggesting that affidavits and court orders must particularize and identify each and every individual whose conversation is to be overheard, then it must necessarily fall of its own weight. The United States Supreme Court has recently held that 18 U.S.C.A. § 2518(1)(b), the federal counterpart of N.J.S.A. 2A:156A--12(b), requires the name of a specific person in a wiretap application only when law enforcement officials believe that such an individual is actually committing the offense for which the wiretap is sought. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Further 'when there is probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identifiable, a wire interception order may, nevertheless, properly issue under the statute.' 157, 94 S.Ct. at 985. The authority to intercept is not limited to conversations between a party named in the order and others. Rather, assuming the substance of probable cause, the conversations of everyone using the telephone may be intercepted. Accordingly, the fact that Nardone was not named in the club order does not in any way diminish the right of the State to utilize the fruits of conversations in which Nardone participated.

Murphy essentially complains of the overbreadth of the court order to tap. He alleges that the failure to name Nardone in the order to tap resulted in a virtual general warrant to intercept all calls and is illegal. By its own terms the wiretap order of the club conferred authority to intercept only communications 'relating to' certain offenses. Moreover, such interceptions were authorized only at 'such time when it has been established through contemporaneous physical surveillance that one or more of the principal suspects have been observed to enter the Club.' Such interceptions were authorized only at 'such times as it be determined by the use of a first name, last name, nickname or voice identification of one of the principals.' The time allowed for interception was limited from 10 a.m. to 3 a.m. In light of the above restraints and limitations imposed by the issuing judge, the wiretap order for the club interceptions was not overbroad or general on its face. The time and manner by which the order was to be executed are sufficiently specific to overcome any allegation of unfettered discretion. It can hardly be said that the executing agents were left free to seize at will every communication that came over the wire.

Murphy's reliance on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Is misplaced since in Katz the surveillance was void Ab initio because of a lack of court authorization.

The court therefore concludes that the club wiretap was in all respects legal and proper.

II Are Defendants Entitled to a Plenary Hearing to Test the Sufficiency of the Affidavit Submitted to Support the Murphy Order to Wiretap?

The court now turns to the Murphy wiretap. Defendants assert the right to a plenary hearing to determine whether or not the affidavit, submitted in the application for the Murphy wiretap, contains willful, deliberate and intentional misrepresentations. Specifically, they assert that a certain communication relied upon by the affiant inaccurately describes one of the parties as Nardone. They also attack the truthfulness of the affiant's statement that phone calls between the parties continued to the date of the application for the court order to wiretap.

Among state jurisdictions there is a split of authority as to whether a defendant can attack the truth of facts set forth in an affidavit which is sufficient on its face. Note, 13 Am.Crim.L.Rev., 117, 135, n. 104. In State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), in the context of a search warrant issue, our Supreme Court denied defendant the right to such plenary hearing. The court held that proof of factual assertions contained in an affidavit submitted in support of an application for a search warrant may not be controverted on a subsequent motion to suppress incriminatory evidence seized on execution of the warrant. 'Once that test is met to the satisfaction of the judge, relitigation of the truth of the factual basis for issuance of the warrant should not be permitted.' 61 N.J. at 174, 293 A.2d at 653.

Based on the above, defendants' motion for a plenary hearing to determine the veracity of the allegations contained in the affidavit is denied.

III Was There Probable Cause for the Issuance of the Murphy Wiretap Order?

The...