State v. Murphy
State v. Murphy
Opinion of the Court
The opinion of the court was delivered by
Based upon information obtained through intercepted telephone conversations, defendants were indicted for conspiracy to violate the State’s gambling laws. Thereafter, evidence against defendants, Edward Murphy, Abraham Prins and Roeco A. Santarsiero, which derived from the initial wiretap of telephones registered to Murphy’s wife, Mary E. Murphy, was suppressed by the trial judge. This evidence had been obtained through wiretap orders against the Murphy and Santarsiero telephones entered in purported compliance with the New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A :156A-1 et seq. The State has appealed from the order of suppression, leave to appeal having been granted by us, whether or not needed. See R. 2:2-3 (a); N. J. S. A. 2A:156A—21.
The order to suppress was granted on the ground that the initial order authorizing the wiretap' of the Murphy telephones did not name Edward Murphy as a person whose conversations were to be intercepted. Opinion below, 137 N. J. Super. 404, 424—428 (Law Div. 1975). The trial judge held that all subsequent wiretaps were tainted by the
Many of the relevant facts are contained in the trial judge’s opinion, reported in 137 N. J. Super. 404. The trial judge found that there was probable cause for the issuance of the first wiretap order directed to the telephones at Murphy’s home. The act is designed to allow electronic interception of communications for the purpose of uncovering evidence of certain crimes designated in N. J. S. A. 2A: 156A-8, including murder, gambling, loansharking and other offenses, and conspiracy to commit said offenses. N. J. S. A. 2A :156A-8; N. J. S. A. 2A:156A-10(b).
The affidavit in support of the first application drtailed evidence concerning the “gangland” execution of Alfred Nicholas Nardone and Murphy’s likely involvement in and knowledge of that offense. Nardone’s body was found in New York City behind the steering wheel of an automobile with three bullets in his head. His body was found within one hour of his leaving home at 8:20 p.m. on April 22, 1974, after telling his wife that he was on his way to meet defendant Murphy in New York City. The affidavit established: that Nardone spoke to Murphy on April 9, 1974; that Nardone’s associate or “protector” was Abraham “Tony” Prins; that around the time of Nardone’s murder Prins was in the New Jersey State Prison for revocation of his parole; that while there Prins had been assigned to the “Inmate Legal Association” and that 23 collect calls were made from telephones at the office of the Inmate Legal Association to Murphy’s home telephone during April 1974, before and after Nardone’s murder; and that calls were made
The initial wiretap of the telephones at the Murphy home established that Murphy was engaged in illegal gambling activity. Extensions of the wiretap revealed continuing evidence of Murphy’s participation in illegal gambling activity as well as his involvement in negotiations for the sale of stolen property and other criminal offenses. The wiretaps also disclosed that defendant Rocco A. “Rocky” Santarsiero was also involved with Murphy in such activity. Accordingly, application was made to wiretap the telephone facilities at Santarsiero’s -residence.
We consider first the contention that the failure to name defendants in the wiretap orders warranted the suppression of evidence. The first and subsequent affidavits recited in detail Murphy’s activity, his relationship to the offenses being investigated, and the reason for seeking an order authorizing the electronic interception of his conversations on telephones listed in his wife’s name at his home. The affidavits clearly indicated that Murphy was a target of investigation and that the telephones were used primarily by him. In these circumstances he should have been named in the wiretap orders as well as the affidavits supporting the applications. N. J. S. A. 2A:156A-12(b); N. J. S. A. 2A:156A-9; State v. Cirillo, 146 N. J. Super. 577 (App. Div. 1977); cf. United States v. Donovan, - U. S. -, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977), interpreting similar provisions in the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. A. § 2518(4) (a). The same applies to defendant Santarsiero. The issue is not as clear as to Prins, since no wiretap was directed toward a telephone that he was
However, on the facts of this case the omission of defendants’ names from the intercept orders did not warrant the extreme remedy of suppression of criminal evidence as a means of assuring compliance with these important provisions of the Electronic Surveillance Control Act.
The Legislature authorized suppression of evidence as a remedy where the communications were “unlawfully intercepted” (N. J. S. A. 2A.156A—21 (a)) or where the authorizing order is “insufficient on its face.” N. J. S. A. 2A: 156A-21(b). Here we cannot say that the intercept orders were facially deficient. Cf. United States v. Donovan, supra, - U. S. at -, 97 S. Ct. at 673, 50 L. Ed. 2d at 671. Looking at the orders alone, one cannot determine that they failed to state the names of persons committing an offense under investigation whose identity was known and whose conversations were to be intercepted — the conditions which require such persons to be named in the intercept orders.
However, N. J. S. A. 2A:156A-21(a) authorizes suppression of evidence if the communication was “unlawfully intercepted.” The naming of known targets of the proposed electronic surveillance is an essential part of the legislative scheme. It will tend to assure compliance with the provision requiring that notice be given to the issuing judge of all prior applications. N. J. S. A. 2A:156A-9(e). It will also tend to assure compliance with the provision requiring service of an “inventory” upon persons who were named in the intercept orders or applications (and, in the discretion of the issuing judge, upon parties to the intercepted communications). N. J. S. A. 2A:156A-16.
Electronic surveillance threatens to intrude upon the privacy and liberty of our citizens to such an extent that we must insist on strict compliance with the substantive and
We find that no prejudice resulted from the failure to name defendants in the body of the intercept orders. In the circumstances before us this deficiency does not warrant suppression of the criminal evidence against defendants. The same applies to the failure to make timely service of inventories upon defendants as required by N. J. S. A. 2A: 156A-16. The State sought to prove that oral notice of the wiretap orders was given to defendants, and they did bring these motions to suppress before trial. Oral notice is not proper compliance with the act. Although N. J. S. A. 2A: 156A-21 does not authorize suppression for the failure to comply with post-interception provisions, suppression may be an appropriate judicial remedy to prevent the occurrence of intentional or insolent violations of statutory requirements.
The cross-appeals of Santarsiero and Prins assert other grounds for suppressing the evidence and dismissing the indictment. One contention, asserted here for the first time, is that the State failed to comply with N. J. S. A. 2A:156A—17 (b) and N. J. S. A. 2A:156A-18. Defendants argue that initially the State was seeking evidence of a conspiracy to murder biardone and to conceal evidence of his murder, hut the State proceeded to present to the grand jury evidence of other crimes, namely, illegal gambling activity, without prior judicial authorization. But before presenting the matter to the grand jury extension orders were granted by the issuing judge after disclosure to him of the criminal activity discovered through the original wiretap. The initial order was entered July 11, 1974. The first renewal order was dated August 8, 1974. This second order and subsequent orders, issued on applications to search for evidence of illegal gambling activity, loansharking and other criminal conspiracies, clearly implied authority to present such evidence to a grand jury. See United States v. Tortorello, 480 F. 2d 764, 781-783 (2 Cir. 1973), cert. den. 414 U. S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973); United States v. Rizzo, 492 F. 2d 443, 447 (2 Cir. 1974), cert. den. 417 U. S. 944, 94 S. Ct. 3069, 41 L. Ed. 2d 665 (1974).
Defendants also contend that (a) probable cause for issuance of the initial wiretap order was lacking because information in the affidavit was stale; (b) the duration of the wiretap interceptions was unnecessarily long and unduly extended, and (c) attachment of a touch-tone decoder to the Murphy telephone was an unauthorzed search. We find no merit to these contentions, substantially for the reasons stated by the trial judge in his reported opinion.
We reverse and vacate the order of suppression and remand the case to the trial court so that it may proceed to trial.
Reference
- Full Case Name
- STATE OF NEW JERSEY, AND v. EDWARD MURPHY, DEFENDANT-RESPONDENT, AND ABRAHAM PRINS AND ROCCO A. SANTARSIERO, DEFENDANTS-RESPONDENTS AND
- Cited By
- 1 case
- Status
- Published