STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. STUART BURSTEIN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. MATTHEW GREENHAUSE, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. NICHOLAS BARRISE, DEFENDANT-APPELLANT, AND STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. CONCETTA DEHART, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued December 2, 1980—Decided March 16, 1981.
85 N.J. 394
Gregory J. Aprile argued the cause for appellant Burstein (Philip M. Saginario, attorney).
Barry G. Evertz argued the cause for appellants Barrise and DeHart.
Gage Andretta, Assistant Essex County Prosecutor, argued the cause for respondent and cross-appellant (John J. Degnan, Attorney General of New Jersey, attorney; Donald S. Coburn, Essex County Prosecutor, of counsel; Gage Andretta, Miriam Kahan Brody, Assistant Essex County Prosecutor, and Marc J. Friedman, Deputy Attorney General, on the briefs).
The opinion of the Court was delivered by
WILENTZ, C. J.
These cases present several questions relating to New Jersey‘s Wiretapping and Electronic Surveillance Control Act (“Wiretap Act“),
The sealing provision of the Act,
We are presented with two additional questions: first, when tapes are suppressed because of a sealing delay, whether derivative evidence from those tapes is nevertheless admissible at trial; and second, whether the State complied with its obligation to minimize both its hours of interception and its interception of non-relevant calls within the hours of interception.
For the reasons set forth in this opinion, we hold that Cerbo is not to be applied retroactively, even to cases that have not yet exhausted all direct avenues of appeal. We further note that, when tapes are suppressed because of a sealing violation, evidence derived from other wiretaps or search warrants based on those tapes is nevertheless admissible at trial where the derivative wiretap or search warrant was authorized prior to the sealing violation. Finally, we hold that the State fully complied with all of its minimization obligations in the instant wiretap.
I.
FACTS
These cases involve appeals from two Appellate Division decisions, State v. Burstein, 172 N.J.Super. 388 (1980), and State v. Barrise, 173 N.J.Super. 549 (1980), which disagreed on the question of whether Cerbo should be applied retroactively. The facts of each case will be discussed separately.
A. Facts—State v. Burstein
On October 25, 1978, Stuart Burstein and Matthew Greenhause pled guilty to conspiracy to violate the narcotics laws and possession of marijuana with intent to distribute.
The case against them had been based largely on evidence derived from a series of wiretaps conducted by the Essex County Prosecutor‘s Office between December 2, 1977, and
On December 2, 1977, the Prosecutor‘s Office applied for an order authorizing a wiretap of the phone of Matthew Greenhause. The application was made to Assignment Judge Arthur J. Blake of the Superior Court, Law Division, who had been designated by Chief Justice Hughes, pursuant to
The police continued to tap Greenhause‘s phone throughout the month of December, receiving one extension. On December 28, 1977, the State applied to Judge Blake for authorization to intercept conversations over the telephone of Stuart Burstein. Probable cause for the Burstein wiretap was derived largely from information gathered during the Greenhause wiretap.
The Greenhause wiretap was terminated on December 31, 1977, and the Burstein wiretap on January 5, 1978. On that day both men‘s residences were searched pursuant to court-authorized search warrants, and narcotics were seized in both places. The affidavits in support of both search warrants included numerous conversations intercepted during the wiretaps.
The tapes of the Burstein wiretap were sealed six days after its termination. The tapes of the Greenhause wiretap, however, were not presented to Judge Blake for sealing until January 30, 1978, a delay of 30 days. The reason given by the State for its delay in presenting the tapes for sealing was that the Attorney General had changed the format for drawing up notices of
At a pretrial hearing on October 25, 1978, the defendants moved to suppress both the tapes of the wiretap and the evidence derived as fruits of the wiretap. Both motions were denied, and the defendants pled guilty, reserving their right to raise the suppression issues on appeal.
While the appeal was pending, we announced our decision in State v. Cerbo, 78 N.J. 595 (1979). The defendants then argued before the Appellate Division that Cerbo should be applied retroactively to suppress the Greenhause tapes. They further argued, among other things, that the Burstein tapes and all other evidence derived from the Greenhause wiretap should be suppressed as well and that the State had failed to make reasonable efforts to minimize its interception of non-pertinent conversations during the Greenhause wiretap.
The Appellate Division agreed that the Greenhause tapes should be suppressed, but declined to suppress the Burstein tapes or other evidence derived from the Greenhause wiretap. State v. Burstein, 172 N.J.Super. 388 (1980). The court, concluding that there was no satisfactory explanation for the sealing delay, suppressed the Greenhause tapes, not as a matter of
B. Facts—State v. Barrise
On July 16, 1974, Judge Blake authorized a 21-day wiretap of a telephone listed to D. Glovan, Newark, New Jersey. The wiretap was sought as part of a joint investigation by a City of Newark—Essex County Strike Force into a suspected lottery operation being run on those premises.
The wiretap ran until August 1, 1974. On that date search warrants were issued for five different locations, and a “sweep” was executed. Several suspects were arrested, including defendants Nicholas Barrise and Concetta DeHart.
On August 6, 1974, the tapes were ready to be presented to Judge Blake for sealing. However, the judge was away on vacation for the month. The State did not present the tapes to another judge for sealing because the statute had unequivocally directed that the tapes “shall be transferred to the judge issuing the order and sealed under his direction.”
The tapes were used against both Barrise and DeHart at trial and on January 23, 1978, both defendants were found guilty of conspiracy to violate the State gambling laws.
Barrise and DeHart appealed their convictions on several grounds, including the State‘s failure to comply with the sealing requirement. The Appellate Division agreed that the sealing
With Barrise in direct conflict with the previous Appellate Division decision in State v. Burstein, supra, we granted certification to resolve the dispute as to whether Cerbo should be applied retroactively, as well as to resolve the other questions discussed in this opinion.3
II.
RETROACTIVITY
As a preliminary matter, we note that this Court has four options open to it in any decision involving retroactivity: (1)
The threshold question in any retroactivity decision is whether a new rule of law has actually been announced. As the very term implies, retroactivity can arise only where there has been a departure from existing law. See State v. Catania, 85 N.J. 418 (1981), decided today (prior New Jersey minimization law did not impose a certain requirement); State v. Carpentieri, 82 N.J. 546 (1980) (prior New Jersey decisions had allowed random traffic stops); State v. Czachor, 82 N.J. 392 (1980) (judges had previously been allowed to give the “Allen” charge to the jury); State v. Howery, 80 N.J. 563, cert. den., 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979) (prior New Jersey decisions had barred inquiries into the veracity of statements contained in affidavits in support of a search warrant); State v. Lueder, 74 N.J. 62 (1977) (prior law had not required juvenile courts to afford juveniles counsel and a hearing before waiving jurisdiction over them in favor of an adult prosecution); State v. Nash, supra (prior law had allowed greater sentences for defendants who appealed their municipal court convictions). In all of the foregoing retroactivity cases, the decision in question had changed prior law.
The defendants first contend that there is no question of retroactivity involved here. They argue that the result announced in Cerbo was not a new rule of law, but had been
Immediately upon the expiration of the order or extension or renewals thereof, the tapes, wires, or other recordings shall be transferred to the judge issuing the order and sealed under his direction . . . .
The sealing provision also contains a remedies section, which provides:
The presence of the seal provided by this section, or a satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication, or evidence derived therefrom, under subsection b of section 17 of this act [which refers to the giving of testimony at trial]. [
N.J.S.A. 2A:156A-14 ].
The defendants argue that, because the sealing requirement and suppression sanction were unequivocally the law since 1968, Cerbo announced no new rule of law and the tapes should be suppressed pursuant to the plain language of the statute.
The State concedes that the statutory command to present the tapes for sealing “immediately” was unequivocal. However, the State argues that it was unclear from the remedies section of the statute whether suppression would automatically follow all sealing delays that were not accompanied by a “satisfactory explanation.” This uncertainty grew out of an almost unbroken line of federal decisions which had interpreted the virtually identical federal sealing provision,
This considerable federal authority was reinforced by two Appellate Division decisions which held that a sealing delay would not result in suppression as long as the State could prove that the tapes had not been tampered with in the interim. State v. Cerbo, 152 N.J.Super. 30 (App.Div.1977), aff‘d on other grounds, 78 N.J. 595 (1979); State v. Gaffey, No. 3176-74 (App.Div. Jan. 13, 1977).4
Finally, the Assignment Judges to whom tapes were delivered for sealing had regularly accepted the tapes even when presented late. This judicial acquiescence in sealing delays must surely have confirmed the State‘s belief that there was nothing inherently improper about these delays, as long as the integrity and accuracy of the tapes could be demonstrated.
Our review of the above developments convinces us that, by the time of the events in this case, the seemingly clear meaning of the remedies section of our sealing requirement had become so undone by subsequent case law that the State had good reason to believe that a sealing delay would not result in suppression where the integrity and accuracy of the tapes were unquestioned. Cf. State v. Cerbo, 78 N.J. at 606-07 (the law with respect to sealing was “inconsistent and uncertain“).
In deciding whether to apply a new rule of law retroactively, three factors must be considered: (1) the purpose of the new rule and whether it would be furthered by retroactive application; (2) the reliance placed on the old rule by those charged with administering it; and (3) the effect that retroactive application would have on the administration of justice. State v. Catania, supra, 85 N.J. at 446; State v. Carpentieri, supra, 82 N.J. at 549; State v. Howery, supra, 80 N.J. at 569; State v. Lueder, supra, 74 N.J. at 77-78; State v. Nash, supra, 64 N.J. at 471.
The first factor, the purpose of the new rule, is often the pivotal consideration. In cases where the new rule is an exclusionary rule, meant solely to deter illegal police conduct, the new rule is virtually never given retroactive effect. The reason is that the deterrent purposes of such a rule would not be advanced by applying it to past misconduct. See State v. Catania, supra, 85 N.J. at 446-447; State v. Carpentieri, supra, 82 N.J. at 549; State v. Howery, supra, 80 N.J. at 569. At the other extreme are cases where the purpose of the new rule “is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function” and which raises “serious questions about the accuracy of guilty verdicts in past
In State v. Czachor, 82 N.J. 392 (1980), we invalidated the use in criminal cases of the “Allen” charge, in which a judge can bring pressure on the jury to reach a unanimous verdict. We held that our ruling was to have limited retroactive effect. Justice Handler, writing for the Court, distinguished Czachor from cases such as Howery, which dealt with the exclusionary rule, on the ground that “this case deals with the ultimate fairness and soundness of the jury‘s verdict.” Id. at 408. Because the new rule affected the integrity of the truth-finding process, it was given limited retroactive effect. We declined to
In between these extremes is a third category of cases, where the new rule is designed to enhance the reliability of the factfinding process but the old rule did not “substantially” impair the accuracy of that process. In measuring the extent to which the old rule impaired the truth-finding process, two things should be considered: first, the likelihood of untrustworthy evidence being admitted under the old rule and, second, whether the defendant had alternate ways of contesting the integrity of the evidence being introduced against him. After this determination is made, the extent to which the old rule impaired the reliability of the truth-finding process is then balanced against the countervailing State reliance on the old rule and the disruptive effect that retroactivity would have on the administration of justice. Using this analysis, the United States Supreme Court has refused to grant retroactive effect to: the Sixth Amendment right to counsel during interrogation and the Fifth Amendment right to be given Miranda warnings, Johnson v. New Jersey, 384 U.S. 719, 729-30, 86 S.Ct. 1772, 1778-79, 16 L.Ed.2d 882, 890 (1966); the prohibition against commenting on a defendant‘s failure to testify at trial, on the ground that such comments did not present a “clear danger of convicting the innocent,” Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453, 460 (1966); the right to counsel at pretrial identification procedures, on the ground that these procedures are frequently reliable and that defendants had an alternate route for contesting the suggestivity of the procedure under the due process clause, Stovall v. Denno, 388 U.S. 293, 297-98, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203-04 (1967); and the right to counsel at a preliminary hearing where determinations of guilt are not made, Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). In all of the above cases, the countervailing interests of State reliance on the old rule and the undisrupted administration of justice were held to outweigh the negligible
In State v. Lueder, 74 N.J. 62 (1977), this Court refused to grant retroactive effect to a rule requiring juvenile courts to afford juveniles counsel and a hearing before waiving jurisdiction over them in favor of an adult prosecution. Relying on Stovall v. Denno, supra, we emphasized that the waiver proceeding played no real part in the ultimate guilt-finding process and thus denied retroactivity. 74 N.J. at 77-78.
The rule announced in Cerbo falls within two of these categories. It falls within the first category, deterrence of illegal police conduct, because the suppression sanction is meant to insure police compliance with the statutory sealing command in all cases, regardless of how accurate the police may later claim the tapes to be. See State v. Cerbo, supra, 78 N.J. at 603. This deterrent purpose militates against retroactive application, as previously explained. The sealing requirement also falls within the third category, rules designed to enhance the reliability of the truth-finding process, because it is intended to insure the integrity and authenticity of the tapes. Cerbo, supra, 78 N.J. at 602. However, delays in sealing do not necessarily result in altered tapes or tampering. See, e. g., Cerbo, supra; United States v. Angelini, supra, 565 F.2d at 471-73; McMillan v. United States, supra, 558 F.2d at 878-79; United States v. Sklaroff, supra, 506 F.2d at 840; United States v. Falcone, supra, 505 F.2d at 483-84. Moreover, we do not believe that the delays in sealing that occurred prior to Cerbo “substantially” impaired the very integrity of the truth-finding process in all those cases. On the contrary, in cases such as the present one and Cerbo, where the accuracy of the tapes is conceded, the sealing delay does not have “the slightest impact” on the guilt or innocence of a given defendant. Cerbo, supra, 78 N.J. at 607. Moreover, should a case arise where the defendant does contest the accuracy of the tapes, he has an alternate way of challenging
Having concluded our discussion of the first factor, the purpose of the new rule, we will now weigh the second and third factors, reliance and effect on the administration of justice, to see if either militates in favor of retroactivity.
The State‘s reliance on prior law is not as firmly justified as it was in Catania, Carpentieri, and Howery, where the old practice had been expressly sanctioned by prior law. Catania, supra, 85 N.J. at 447; Carpentieri, supra, 82 N.J. at 548; Howery, supra, 80 N.J. at 570-71. Neither the unpublished Appellate Division opinion in State v. Gaffey, supra, the opinion by divided Appellate Division panel in State v. Cerbo, supra, nor the line of cases interpreting the federal sealing provision gave the State such concrete assurance that its conduct would be upheld. Nevertheless, the clear preponderance of case law was such as to give the State some reasonable expectation that a sealing delay would not result in suppression of the tapes. Certainly its conduct did not amount to bad faith or insolence. See Cerbo, supra, 78 N.J. at 607.
Finally, even limited retroactive application of Cerbo would have a drastic effect on the administration of justice. The State has represented that, in Essex County alone, retroactivity would require the retrial of or dismissal of counts against at least 60 defendants. On a statewide basis, even limited retroactivity would presumably require additional retrials and dismissals that might burden our courts and other branches of our criminal justice system. As for complete retroactivity, the costs such application would inflict on our administration of justice are virtually incalculable.
Weighing the above three factors, we find that retroactivity would drastically burden the administration of justice. We also find that the State justifiably relied on the only case
III.
USE OF DERIVATIVE EVIDENCE
Burstein and Greenhause have raised the question of whether derivative evidence from tapes that were suppressed because of a sealing violation must also be suppressed. Although our decision not to apply Cerbo retroactively and suppress the tapes makes it unnecessary to decide this question, we nevertheless believe that it would be appropriate to address the issue because it has been fully briefed and argued, and because the situation may arise in the future if tapes are suppressed because of a post-Cerbo sealing violation.
The defendants have argued that the plain language of the sealing provision requires the suppression of derivative
The presence of the seal provided by this section, or a satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication, or evidence derived therefrom, under subsection b of section 17 of this act. [Emphasis added].
On its face the above language would appear to bar the use at trial not only of the Greenhause tapes, but of any evidence derived from those tapes. This result has been reached by at least one court interpreting the identical “evidence derived therefrom” language of the federal sealing provision. United States v. Caruso, 415 F.Supp. 847, 850 n. 2 (S.D.N.Y.1976), aff‘d, 553 F.2d 94 (2d Cir. 1977).5 The logic of suppressing derivative evidence in cases involving a sealing violation is simple: much of the deterrent sting would be taken out of the suppression sanction announced in Cerbo if police could use unsealed tapes to secure additional tapes or evidence, which would be admissible against those as to whom the unsealed tapes are inadmissible. There are, however, other features of
The Legislature, by restricting the suppression sanction to prohibiting use of the tapes under subsection b of section 17, deliberately left open the possibility that the tapes might be used under subsection a of that section. Subsection a allows a law enforcement officer to disclose the contents of a wiretap “to another investigative or law enforcement officer to the extent that such disclosure or use is appropriate to the proper performance of his duties.”
This issue has arisen several times in the Second Circuit. In Caruso, supra, 415 F.Supp. at 850 n. 2, the court said in dicta that evidence derived from unsealed tapes should be suppressed. However, in United States v. Fury, 554 F.2d 522 (2d Cir. 1977), the Second Circuit held admissible the evidential by-products derived from tapes that were themselves inadmissible due to the 14-day sealing delay. In reaching its decision, the court relied on the federal legislative history, which indicated that proper sealing was not a prerequisite for use of the tapes to establish probable cause for future wiretaps, and on the fact that the sealing delay was a post-intercept violation which did not render the wiretap void at the outset. 554 F.2d at 531-32.
The foundation for this latter reasoning had been established in United States v. Ricco, 421 F.Supp. 401 (S.D.N.Y.1976). In that decision, post-intercept violations such as a sealing delay were distinguished from violations which render a wiretap void at the outset (such as deficiencies in the order). The latter class of violations usually amounts to a search and seizure that is already illegal at the time the derivative evidence is acquired. In the former class of violations, however, the intrusion is often lawful at the time the derivative evidence is obtained. A subsequent sealing delay which simply violates a statutory prophylactic rule was thus deemed not to contaminate retroactively the earlier lawful use of the tapes to establish probable cause. Unsealed tapes were analogized to hearsay evidence, which is not sufficiently reliable to justify its admission at trial, but which may nevertheless be used to establish probable cause. 421 F.Supp. at 404 n. 3.
This reasoning may guide us in our attempt to resolve these two competing interpretations of
IV.
MINIMIZATION
It is also contended that the State failed to make reasonable efforts to comply with its minimization obligations during the course of the Greenhause wiretap.
The minimization provision of our Wiretap Act,
Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order.
In State v. Catania, supra, 85 N.J. at 422-423, decided today, we held that the State, in addition to “extrinsically” minimizing by making reasonable efforts to reduce the authorized hours of interception, must “intrinsically” minimize by making reasonable efforts to terminate its interception of non-relevant conversations within the authorized wiretapping hours. We also held that, not only must the actual minimization have been objectively reasonable, but that the police must have made a subjective good-faith effort at the time to comply with their minimization obligations. We are satisfied from the facts of this case that the State has fulfilled all of the above minimization requirements.
The defendants also contest vigorously the sufficiency of the State‘s intrinsic minimization efforts. The disputed phone conversations occurred between Greenhause and his girlfriend, primarily during the early morning hours. Many of them were deeply personal and emotionally turbulent. Although we do not reach this decision easily, we find that it was reasonable for the State to intercept these calls.
In Catania, supra, 85 N.J. at 433-434, we set out three factors to be considered in assessing the reasonableness of the State‘s intrinsic minimization efforts: (1) the nature of certain phone calls, which may make minimization difficult; (2) the scope of the enterprise under investigation; and (3) the reasonable expectations of the monitors, at that stage of the conspiracy, as to the nature of the conversation. The first consideration concerns phone calls that were too short to mini-
Finally, we conclude that the police made good faith efforts to minimize at the time of the wiretap. The supervising officers were aware of their minimization obligations and were given detailed instructions on how to minimize. Most importantly, the police did terminate their interception of numerous conversations, including several calls between Greenhause and his girlfriend. Although some additional calls might conceivably have been minimized, we have never required the State to minimize its interception of all non-relevant phone calls. This would require a prescience on the part of the police that is simply not possible. Rather, we require only that the State make reasonable efforts to terminate its interception of non-relevant phone calls. Our review of the facts in this case convinces us that such efforts were made here.
V.
CONCLUSION
In conclusion, we hold that Cerbo is not to be applied retroactively, even in a limited fashion, to cases that had not yet exhausted their avenues of direct review at the time of the
We further conclude that, even if the tapes had been suppressed, evidence derived from them would nevertheless have been admissible at trial under the circumstances of the Burstein case.
Finally, we hold that the State complied with its minimization obligations by making reasonable and good faith efforts to minimize both extrinsically and intrinsically.
For the reasons stated herein, the convictions in both cases are affirmed.
PASHMAN, J., dissenting.
I have previously expressed at length my views on the issue of whether particular judicial decisions affecting the rights of criminal defendants should receive limited retroactivity. State v. Carpentieri, 82 N.J. 546, 556 (1980) (Pashman, J., dissenting); State v. Howery, 80 N.J. 563, 575 (1979) (Pashman, J., dissenting), cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979). Because the reasons I found in Carpentieri and Howery for limited retroactive application of the rules at issue there apply as well to the rule announced by this Court in State v. Cerbo, 78 N.J. 595 (1979), I respectfully dissent.
Very briefly, I believe that application of the Cerbo rule, which in the cases at bar results in the suppression of the Greenhause tapes in State v. Burstein and all the tapes in State v. Barrise, serves the purpose of preserving “the imperative of judicial integrity.” Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081 (1961). Furthermore, consistent with my reasoning in Carpentieri and Howery, cases pending direct review in our courts should be decided on the basis of our ruling in Cerbo.
There is little wisdom and no fairness in “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new
Contrary to the assertion of the majority, limited retroactivity would not have such “a drastic effect on the administration of justice,” ante at 410, that our courts should compromise “the imperative of judicial integrity.”
Aside from the question of retroactivity, I agree with the majority on the other issues decided in these cases. I would modify and affirm the judgment of the Appellate Division in State v. Burstein, 172 N.J.Super. 388 (1980), and I would reverse the judgment of the Appellate Division in State v. Barrise, 173 N.J.Super. 549 (1980).
For affirmance—WILENTZ and Justices SULLIVAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK—6.
For modification and affirmance in part and reversed in part—Justice PASHMAN—1.