The opinion of the Court was delivered by SCHREIBER, J.
Merrell Hunt and Ralph Pirillo, Sr. were indicted for bookmaking, N.J.S.A. 2A:112-3, maintaining a place for gambling, N.J.S.A. 2A:112-3, conspiracy to commit bookmaking, N.J.S.A. 2A:98-1, and aiding and abetting bookmaking, N.J.S.A. 2A:85-14. After the defendants' motions to suppress evidence because of allegedly unlawful searches and seizures by the police were denied, the defendants pursuant to a plea bargain pled guilty to conspiracy and bookmaking. The remaining counts were dismissed. Hunt was sentenced to four months in the Atlantic County jail, placed on probation for three years, and fined $1,000. Pirillo was sentenced to 75 days in the Atlantic County jail, placed on probation for two years, and fined $500.
The defendants appealed to the Appellate Division, raising eight separate issues relating to their suppression motions. The convictions were summarily affirmed. We granted defendants' joint petition for certification, 89 N.J. 413 (1982), primarily to consider the constitutionality of the warrantless search and
The late Judge George Schoch, then Assignment Judge of Mercer County, authorized the wiretapping of the telephone of Robert A. Notaro, who was engaged in an illegal sports bookmaking enterprise. At least three telephone conversations between Notaro and the defendant Hunt relating to betting were overheard. The State police, having been alerted by one of the conversations, also observed Notaro meet with Hunt and Pirillo in Atlantic City on December 1, 1977 to discuss some gambling business. At about the same time a reliable informant advised the State police that Pirillo was a bookmaker with whom he had previously placed wagers on sporting events.
On September 18, 1978, another reliable informant advised Detective M. Robert Warner of the State police that defendant Hunt was conducting a gambling business daily between 11:00 a.m. and 9:00 p.m. over two telephones with different numbers. One of these numbers had already been revealed during the 1977 investigation. The two telephone numbers were listed in defendant Hunt's name at 17 North Hartford Ave., Apt. 5, Atlantic City. Detective Warner next went to the offices of the New Jersey Bell Telephone Company and obtained Hunt's home toll billing records for both telephone numbers for the two month period between June 23 and August 23, 1978. These records indicated frequent calls to Sports Phone Service, which furnishes up-to-the-minute data on results of sporting events.
Detective Warner listened in on a telephone conversation on September 30, 1978 between the informant and Hunt. Hunt gave some odds on certain college football games and the informant placed two bets. The next day the detective listened to another conversation between the informant and Hunt, during which odds were quoted and the informant placed a bet. The informant advised Warner that Hunt was a middleman
Between October 6 and October 11, 35 calls were made from Hunt's telephones to a telephone number listed in the name of defendant Pirillo at 2205 Revere Boulevard, Brigantine, N.J. Moreover, calls were made to certain Philadelphia telephone numbers of known gamblers.
Detective Warner next obtained a court order authorizing the wiretapping of Hunt's telephones. The monitoring occurred on a daily basis between October 14, 1978 and October 23, 1978. Based on information obtained during the wiretapping, which clearly established the bookmaking activity, Detective Warner obtained a warrant to search Hunt, his residence on North Hartford Avenue, and his car, and Pirillo, his home in Brigantine, and his car. The detective went to Hunt's home and found Hunt at the kitchen table surrounded with gambling paraphernalia. There was a bulletin board containing slips of paper with names and figures. More slips of paper were found in the bedroom along with $6,000. No evidence was uncovered during the other authorized searches.
The defendants moved to suppress the following evidence: (1) Hunt's toll billing records; (2) the data obtained from the pen registers; (3) the information obtained from the wire interceptions of the Hunt and Pirillo telephones between October 14 and October 23; and (4) the evidence uncovered during the search of the Hunt and Pirillo premises.
As indicated at the outset, our concern is with the toll billing records. The key questions are whether an individual has a protectible interest in those records under the Fourth Amendment to the federal Constitution or Article I, par. 7 of the New
The United States Supreme Court has protected a telephone conversation from governmental eavesdropping by an electronic recording device. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That Court has also indicated that it will not protect information or material beyond the conversation itself. We surmise as much because of its decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In that case, without a warrant or court order, the police placed a pen register on the defendant's telephone. On the basis of information obtained from the pen register and other evidence, the police obtained a warrant to search the defendant's home. The defendant sought to suppress the evidence obtained. The Supreme Court rejected the motion.
Justice Blackmun, writing for the majority of five, stated that two discrete questions were involved. The first was whether the "individual, by his conduct, has `exhibited an actual (subjective) expectation of privacy'...." Id. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226. He answered this in the negative, holding that people do not generally entertain any actual expectation of privacy in the numbers dialed because the telephone company must be made aware of the number in order to effectuate the call, bill the caller, and use the information for other legitimate reasons. The second question was whether, irrespective of the individual's expectation of privacy, society was prepared to recognize such an expectation as reasonable. Id. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 227. Justice Blackmun also answered this
The expectation of privacy in a pen register, both subjectively and objectively, is substantially similar to that in toll billing records. The difference between toll billing records, which reflect long distance completed calls, and the pen register, which identifies all local and long distance numbers dialed, whether completed or not, does not have any impact upon Justice Blackmun's analysis. His rationale places the toll billing record into the pen register mold. This conclusion is borne out by the federal courts that have passed on this question and have concluded that toll billing records are not entitled to Fourth Amendment protection. Reporters Committee v. American Telephone & Telegraph Co., 593 F.2d 1030 (D.C. Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); United States v. Fithian, 452 F.2d 505 (9th Cir.1971); DiPiazza v. United States, 415 F.2d 99 (6th Cir.1969).
Our inquiry does not end at this point, for we must consider the application of the search and seizure safeguard in the New Jersey Constitution. This Court has seen fit to hold that the search and seizure provisions in the federal and New Jersey Constitutions are not always coterminous, despite the congruity of the language. State v. Alston, 88 N.J. 211, 225-26 (1981); State v. Johnson, 68 N.J. 349, 353 (1975); cf. State v. Schmid, 84 N.J. 535, 557 (1980) (broader concepts of individual rights of speech under New Jersey Constitution). Though notions of
Sound policy reasons, however, may justify a departure. New Jersey has had an established policy of providing the utmost protection for telephonic communications. Long before the Supreme Court's opinion in Katz v. United States, supra, the New Jersey Legislature had in a 1930 statute made it a misdemeanor to tap a telephone line. L. 1930, c. 215, § 1, at 987. Justice Wachenfeld commented on this statute in Morss v. Forbes, 24 N.J. 341, 363 (1957): "The Legislature, as the foremost exponent of the public policy of this State, has condemned the tapping of wires as a method for achieving the detection and punishment of crime."
This proscription of the 1930 statute was continued until 1968, see R.S. 2:171-1 (1930) and N.J.S.A. 2A:146-1, when it was replaced by a substantially similar ban incorporated in the Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. In addition to the legislative restrictions on wiretaps, our case law has adopted a policy of protecting the privacy of telephonic communications. In In re Wire Communication, we held that "[s]tatutes that directly impinge on the individual's right to be free from unwarranted governmental intrusion into privacy should be construed narrowly." 76 N.J. at 268. See also State v. Catania, 85 N.J. 418 (1981) (interpretation of wiretap minimization provision); State v. Cerbo, 78 N.J. 595 (1979) (State must seal tapes of completed wiretap immediately upon expiration of the tap).
In this case we are persuaded that the equities so strongly favor protection of a person's privacy interest that we should apply our own standard rather than defer to the federal provision.
Technological developments have enlarged our conception of what constitutes the home. The telephone has become an essential instrument in carrying on our personal affairs. It has become part and parcel of the home. When a telephone call is made, it is as if two people are having a private conversation in the sanctity of their living room. It is generally understood to consist of a conversation between two persons, no third person being privy to it in the absence of consent. It is well settled that telephone conversations carried on by people in their homes or offices are fully protected from governmental intrusions. Katz v. United States, supra.
Not all telephone conversations enjoy the same privacy. If one party makes the conversation available to others, such as through the use of a speaker phone or by permitting someone else to hear, as was done on occasion in this case when the informant permitted the detective to listen to the conversation, the privacy interest does not remain the same. However, when neither party permits any interference with the call and only the telephone company in the course of its operations is privy to any information, the question remains whether the company's participation destroys the sanctity of the call, which comprises data as to both who was contacted and what message was conveyed, so as to permit unauthorized governmental intrusion.
The telephone caller is "entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."
Allowing such seizures without warrants can pose significant dangers to political liberty. Chief Judge J. Skelly Wright, dissenting in Reporters Committee v. American Telephone & Telegraph Co., 593 F.2d at 1079, detailed some actual abuses that have occurred. For example, in response to a Jack Anderson column embarrassing to former Vice President Agnew, the FBI secured Anderson's toll billing records. An Anderson source lost his job as a city attorney because his telephone number appeared on Anderson's billing record. See id. at 1090-91 & n. 27.
It is unrealistic to say that the cloak of privacy has been shed because the telephone company and some of its employees are aware of this information. Telephone calls cannot be made except through the telephone company's property and without payment to it for the service. This disclosure has been necessitated because of the nature of the instrumentality, but more significantly the disclosure has been made for a limited business purpose and not for release to other persons for other reasons. The toll billing record is a part of the privacy package.
The decision we adopt herein should be applied only to all billing records processed after today. It will cause a sharp break in the practice of the police authorities, announces a new rule, and changes prior law. Moreover, we are satisfied that
The wrongfully acquired records do not justify suppression of the evidence procured pursuant to the search warrant. Defendants contend that all the evidence obtained after the police examined Hunt's toll billing records must be suppressed under the familiar doctrine that all the fruit of the poisonous tree must fall. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). All evidence subsequently obtained, however, is not automatically inadmissible. If the subsequently obtained evidence was acquired from an independent source unrelated to the illegal search, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 321 (1920), or the causal connection between the illegal conduct and the discovery of the challenged evidence was "so attenuated" that the taint was dissipated, Nardone v. United States, 308 U.S. at 341, 60 S.Ct. at 267, 84 L.Ed. at 312, then such evidence is admissible.
Hunt's toll billing records revealed nothing more than that he had two telephone numbers — information the police already had — and that frequent telephone calls had been made to the Sports Phone Service. This latter fact had little, if any, bearing on the court orders providing for the wire intercepts or the
For similar reasons, failure to suppress the toll billing records themselves was undoubtedly harmless error. The only information these records could have provided beyond evidence already admissible is the fact that Hunt frequently called Sports Phone. That fact is too insignificant to have had any bearing on a trial on these charges.
The judgments are affirmed.
PASHMAN, J., concurring.
I concur in all respects with the result reached by the Court in this case. I write for two specific reasons. First, I wish to underscore the importance of the privacy interests implicated here by pointing out the significant dangers to civil liberties that would be posed by unrestrained police access to personal telephone billing records. Second, and at least as important, I feel impelled to address the discussion in both the majority opinion and Justice Handler's concurrence concerning the extent to which this Court should construe the New Jersey Constitution to offer greater protection of the fundamental rights and liberties of New Jersey citizens than that offered under the federal constitution as interpreted by the United States Supreme Court. Because I believe that both opinions define too narrowly the circumstances under which New Jersey courts should independently construe the New Jersey Constitution, I offer my own analysis of the theoretical bases of state constitutional interpretation and its limitations.
The majority aptly describes the privacy interests of New Jersey citizens in the phone numbers they dial. The majority also persuasively refutes the reasoning offered by the United States Supreme Court for denying the privacy interests in that information. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). What is missing from the majority opinion is a full appreciation of the danger of political abuse posed by unlimited police access to knowledge of whom private citizens are calling and therefore of the importance of the warrant requirement as a check on this potential for abuse. I do not mean to imply that New Jersey police have used or would use such information for other than legitimate law enforcement purposes. But the genius of our Bill of Rights is that our liberties are safeguarded not by governmental self-restraint, but by constitutional guarantee.
The case of Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Co., 593 F.2d 1030 (D.C. Cir.1978), is particularly instructive. See Discussion of Reporters Committee, ante at 347. The majority there reached a result contrary to ours and, in response, Judge Skelly Wright filed a telling dissent detailing actual abuses of toll billing records by the federal government. For example, in 1971, FBI agents involved in the Daniel Ellsburg-Pentagon Papers case were given the billing records of Richard Dudman and Knight Newspapers, affiliates of which had published portions of the Pentagon Papers. Reporters Committee, 593 F.2d at 1080. That same summer, in an attempt to learn the source of an embarrassing article by Jack Anderson about Spiro Agnew, the FBI, at the behest of the White House, obtained the billing records of Anderson and three of his employees. Id. In one instance, a Jack Anderson source lost his job as a city attorney when his phone number appeared on Anderson's billing records. Id. at 1090-91, n. 27. Finally, upon learning that David Rosenbaum of The New York Times had information about the suppression of an IRS investigation for political reasons, the IRS
Judge Wright focused on the dangers that unrestrained government access to billing records can pose for freedom of the press. Such access can penalize sources for stories that embarrass or criticize government officials and deter other sources from coming forward. Reporters Committee, 593 F.2d at 1090-91. Our holding in this case thus adds an important bulwark to New Jersey's strong protection of the confidentiality of press sources. See Maressa v. New Jersey Monthly, 89 N.J. 176 (1982).
Other improper political uses of billing records are certainly imaginable. In NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the Supreme Court held that the State of Alabama could not require the NAACP to turn over its membership lists because the publication of that list could subject the members to harassment, in effect penalizing them for a protected political association. Government access to the billing records of such protected political organizations would allow government to accomplish indirectly what the First Amendment prohibited it from doing directly.
Even aside from these potential political abuses, the names of whom one calls are, as Justice Schreiber points out, an extremely private matter that no citizen should be required to disclose without probable cause that a crime was or will be committed.
The requirement that police obtain a warrant before seizing toll billing records is at most a minimal burden that in no way intrudes upon legitimate police activity. There is no danger that billing records will be destroyed or secreted during the time needed to get a warrant. Yet this simple requirement can go a long way towards preventing abuses of the type detailed by Judge Wright in Reporters Committee.
For quite a few years, this Court, and other state courts across the country, have been construing state constitutions to extend a greater measure of protection for fundamental constitutional rights than the United States Constitution has been construed to afford. See the cases collected in Justice Handler's concurrence, ante at 340-342. We have done so on the basis of provisions in our constitution not found in the federal constitution, see, e.g., Robinson v. Cahill, 62 N.J. 473 (1973), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973) ("thorough and efficient" education clause), or on the basis of provisions virtually identical to federal provisions, see, e.g., State v. Johnson, 68 N.J. 349 (1975) (freedom from "unreasonable searches and seizures"). We have not hesitated to do this in the face of directly contrary United States Supreme Court decisions. In Robinson v. Cahill, we rejected the holding in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), and here we essentially reject Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
That this Court has the power to construe the New Jersey Constitution to reach results contrary to United States Supreme Court decisions construing the federal constitution is not controverted. Each state has the "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). See Oregon v. Hass, 420 U.S. 714, 718, 95 S.Ct. 1215, 1218, 43 L.Ed.2d 570 (1975); State v. Alston, 88 N.J. 211 (1981); Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489 (1977) ("State Constitutions"). Of course, the State constitution cannot contravene a federally guaranteed constitutional right any more than a state statute can. Thus, the United States Constitution as construed by the United States Supreme Court establishes the minimum degree of protection a state must give to constitutional rights. At the same time, state constitutions may provide further
This Court has not to date set forth any rules, principles or theories explaining when it will go beyond the federal courts in protecting constitutional rights and liberties. Our cases have merely stated our undoubted power to construe the New Jersey Constitution in accord with our own analysis of the particular right at issue. See, e.g., State v. Alston, 88 N.J. at 226 (standing to assert Fourth Amendment rights); State v. Schmid, 84 N.J. 535, 558-60 (1980) (First Amendment rights on a private university campus); State v. Saunders, 75 N.J. 200, 216-17 (1977); State v. Johnson, 68 N.J. at 353.
Consequently, I applaud Justice Handler's thoughtful effort to rationalize our cases in this area and to analyze when divergent state and federal constitutional interpretations are appropriate. However, I disagree with his analysis. In his view, this Court should adhere to the federal constitutional interpretation unless one of several factors is present showing that a different interpretation is of special concern to New Jersey. The factors listed include differences in the texts of the two constitutions, pre-existing state law and distinctive state traditions and public attitudes. Although the factors listed are potentially broad, they impose clear limits. At bottom, Justice Handler's approach effectively entails a presumption against divergent interpretations of our constitution unless special reasons are shown for New Jersey to take a path different from that chosen at the federal level.
I would reverse the presumption. As a general rule, this Court should construe the New Jersey Constitution as it considers appropriate, taking into account the various factors that constitute sound constitutional analysis. United States Supreme Court opinions, both majority and dissenting opinions, can be valuable sources of wisdom for us. But this Court should not uncritically adopt federal constitutional interpretations for the New Jersey Constitution merely for the sake of consistency. Of course, there are certain situations and contexts that, for policy reasons, call for uniform national rules. In those circumstances, the need for uniformity should be weighed into the balance, with the possible result that we will conform to the federal rule when we would not otherwise have done so.
Stated succinctly, Justice Handler urges that we follow federal constitutional interpretation unless there are particular reasons to diverge from it. I believe there are several strong reasons why this Court should perform an independent constitutional analysis unless there are particular reasons to conform.
The simplest but perhaps most compelling reason for extending state constitutional rights beyond their federal counterparts is that it strengthens the constitutional safeguards of fundamental liberties. "[O]ne of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens." Brennan, "State Constitutions," 90 Harv.L.Rev. at 503. When this Court considers that important constitutional rights are inadequately protected by the federal constitution, we have an obligation under the State Constitution to supply that protection. The virtue of independent sources of constitutional protection is that, as Justice Brennan stated, quoting James
A second reason for extending state constitutional interpretation beyond the limits imposed at the federal level derives from the resultant diversity of constitutional analysis. The majority and Justice Handler assume without explanation that uniformity in constitutional law is an unqualified advantage. However, as one commentator has stated, "Rather than threaten the federal system, such a process [of state constitutional law] is more likely to create a healthy debate over the interpretation of federal law." "Developments in the Law — The Interpretation of State Constitutional Rights," 95 Harv.L.Rev. 1324, 1396. Similar constitutional concepts can be developed in a variety of ways. The path chosen by the United States Supreme Court is not necessarily the best, the most protective of our constitutional rights, or the most reflective of the intent of the Framers. See Levenson, "`The Constitution' in American Civil Religion," 1979 The Supreme Court Review 123, 140-41.
A third important reason for extending our interpretation of constitutional rights beyond that offered by the United States Supreme Court is that we do not share the strong limitations perceived by that Court in its ability to enforce constitutional protections aggressively. Those limitations arise from the structure of our federal system, the Court's role as final arbiter of at least the minimum scope of constitutional rights for a vastly diverse nation, and the Court's lack of familiarity with local conditions. These difficulties do not similarly limit state courts.
In our federal system, many important governmental roles and decisions are reserved for the states. It is believed therefore that unduly "activist" enforcement of constitutional rights by the federal courts impinges on important state prerogatives. Justice Brennan, in his now famous article, explains that the Supreme Court has repeatedly allowed concerns of federalism to "limit the protective role of the federal judiciary." 90 Harv.L. Rev. at 503.
This Court has repeatedly recognized the significance of these federalism concerns and of the fact that they do not similarly limit this Court. Chief Justice Weintraub noted this in analyzing the state equal protection claim in Robinson v. Cahill.
See also State v. Schmid, 84 N.J. at 559, 423 A.2d 615; State v. Saunders, 75 N.J. at 217. The presumption against state constitutional interpretation offered by my colleagues fails to recognize this important consideration.
The United States Supreme Court has also been hesitant to impose on a national level far-reaching constitutional rules binding on each and every state. This reluctance derives, first, from the nationwide jurisdiction of the Court. Once it settles a rule, experimentation with different approaches is precluded. See San Antonio School District v. Rodriguez, 411 U.S. at 43, 93 S.Ct. at 1302; 95 Harv.L.Rev. at 1348-51. Further, the Supreme Court has adverted to its lack of familiarity with local problems and conditions as a reason for hesitance. San Antonio School District v. Rodriguez, 411 U.S. at 41, 93 S.Ct. at 1301. Again, this applies with far less force at the state level.
For these various reasons, we should not be reluctant to engage in independent state constitutional analysis. None of our prior cases in this area has suggested hesitance, and there is no reason for it. Where this Court perceives that the federal constitution has been construed to protect the fundamental rights and liberties of our citizens inadequately, it cannot shrink from its duty to act. The New Jersey Constitution provides the citizens of this state with a fully independent source of protection of fundamental rights and liberties. It is our role alone to say what those rights are, and it is our solemn obligation to enforce them.
HANDLER, J., concurring.
I agree with the result reached by the majority in this case and its decision to utilize the State Constitution to vindicate a right seemingly neglected by the federal Constitution. I write
The United States Supreme Court has clearly recognized that each state has the "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980). See Oregon v. Hass, 420 U.S. 714, 718, 95 S.Ct. 1215, 1218, 43 L.Ed.2d 570, 575 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, 734 (1967). With growing frequency, states are now availing themselves of this resource, finding in their own constitutions greater protections for citizens' rights than those found to exist under parallel provisions in the federal Constitution. See, e.g., Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18, 19 (1979); People v. Rucker, 26 Cal.3d 368, 389-391, 605 P.2d 843, 856, 162 Cal.Rptr. 13, 26 (1980); People v. Privitera, 23 Cal.3d 697, 710, 591 P.2d 919, 926, 153 Cal.Rptr. 431, 438 (1979), cert. den., 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318 (1979); State v. Kaluna, 55 Haw. 361, 369 n. 6, 520 P.2d 51, 58 n. 6 (1974); O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn. 1979); Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 406 A.2d 137, 138 (1979); Cooper v. Morin, 49 N.Y.2d 69, 79, 399 N.E.2d 1188, 1194, 424 N.Y.S.2d 168, 174 (1979), cert. den. 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980); Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 436, 442, 399 N.E.2d 518, 521, 525, 423 N.Y.S.2d 630, 643-44 (1979); Sharrock v. Dell Buick-Cadillac, Inc., 45 N.Y.2d 152, 160-61, 379 N.E.2d 1169, 1173, 408 N.Y.S.2d 39, 43-44 (1978); People v. Onofre, 72 A.D.2d 268, 270, 424 N.Y.S.2d 566, 568 (1980). See generally Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489, 491-95 (1977); Countryman, "The Role of a Bill of Rights in a Modern
Our own courts have followed this same course, recognizing the New Jersey Constitution as an alternative and independent source of individual rights. We have expressed the firm belief that "state constitutions exist as a cognate source of individual freedoms and that state constitutional guarantees of these rights may indeed surpass the guarantees of the federal constitution." State v. Schmid, 84 N.J. 535, 553 (1980). We have, therefore, felt free to extend the guarantees of our State Constitution to a panoply of rights deemed essential to both the quality of individual life and the preservation of personal liberty. See, Right to Choose v. Byrne, 91 N.J. 287 (1982) (enhanced equal protection accorded individual right to health and privacy); State v. Alston, 88 N.J. 211, 227 (1981) (standing to challenge validity of car search); Schmid, 84 N.J. at 560 (right of free speech on private university campus); State v. Ercolano, 79 N.J. 25, 30, 34 (1979) (privacy-based freedom from "unreasonable searches and seizures"); State v. Tropea, 78 N.J. 309, 313 n. 2 (1978) (double jeopardy and fundamental fairness); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978) (equal protection); State v. Saunders, 75 N.J. 200, 216, 217 (1977) (right of sexual privacy); Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6 (1976) (equal protection); In re Quinlan, 70 N.J. 10,
This Court has been fully responsive to its judicial role in ultimately resolving questions that concern its citizens. As Justice Brennan has observed: "[I]t is the state courts at all levels, not the federal courts, that finally determine the overwhelming number of the vital issues of life, liberty and property that trouble countless human beings of this Nation every year." Brennan, "Introduction: Chief Justice Hughes and Justice Mountain," 10 Seton Hall L.Rev. xii (1979). There is a danger, however, in state courts turning uncritically to their state constitutions for convenient solutions to problems not readily or obviously found elsewhere. The erosion or dilution of constitutional doctrine may be the eventual result of such an expedient approach.
It would be unfortunate if our decision today were cast in that light. The majority recognizes that, as a matter of federal constitutional law, personal telephone records are not constitutionally protected. Ante at 344-345. It then invokes the State charter to achieve a result unattainable under federal law.
There is surely no impropriety in state courts building an independent body of state constitutional law. See Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harv.L. Rev. 1 (1959). Moreover, there is no mandate that a state court explain itself when it invokes the state charter to achieve a result unavailable under federal law. See, e.g., Collins, supra, 9 Hastings Const.L.Q. at 16-18; Kamp, "Private Abridgement of Speech and State Constitutions," 90 Yale L.J. 165 (1980); Kelman, "Forward: Rediscovering the State Constitutional Bill of Rights," 27 Wayne L.Rev. 413 (1981); Wilkes, "The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court," 62 Ky.L.J. 421 (1974). Indeed, the trend of state courts using their own constitutions to avoid restrictive federal rules on individual rights can be regarded as a sign of healthy federalism for which no justification is required, since federal and state systems are in many respects separate sovereigns, each free to act without regard to the wishes of the other. Note, supra, 13 Am.Crim.L.Rev. at 748.
Nevertheless, our national judicial history and traditions closely wed federal and state constitutional doctrine. It is not entirely realistic, sound or historically accurate to regard the separation between the federal and state systems as a schism.
For these reasons, state courts should be sensitive to developments in federal law. Federal precedent in areas addressed by similar provisions in our state constitutions can be meaningful and instructive. We have recently recognized the importance of federal sources of constitutional doctrine. See General Assembly v. Byrne, 90 N.J. 376, 381-384 (1982). The opinions of the Supreme Court, while not controlling on state courts construing their own constitutions, are nevertheless important guides on the subjects which they squarely address.
It is therefore appropriate, in my estimation, to identify and explain standards or criteria for determining when to invoke our State Constitution as an independent source for protecting individual rights. See State v. Simpson, 95 Wn.2d 170, 200-02, 622 P.2d 1199, 1217 (1980) (Horowitz, J., dissenting). See also Bice, supra, 45 S.Cal.L.Rev. at 765-68; Deukmejian & Thompson, "All Sail and No Anchor — Judicial Review Under the California Constitution," 6 Hastings Const.L.Q. 975, 987-96 (1979); Howard, supra, 62 Val.L.Rev. at 934-44. There are several considerations that are relevant and important in making that determination.
Second, the phrasing of a particular provision in our charter may be so significantly different from the language used to address the same subject in the federal Constitution that we can feel free to interpret our provision on an independent basis. Thus, in Schmid, we noted that the unique language of the New Jersey charter's free speech clause (N.J.Const., Art. 1, par. 6) was one indication that the provision was meant to be broader in scope than the First Amendment. 84 N.J. at 557. See Maressa v. New Jersey Monthly, 89 N.J. 176, 207-08 (1982) (Schreiber, J., dissenting). See also State v. Sklar, 317 A.2d 160, 169 (Me. 1974) (broadened right to jury trial suggested by difference between Me.Const. art. I, § 6, guaranteeing jury trial in "all criminal prosecutions," and federal language limiting right to jury trial to "Crimes," U.S.Const. art. III, § 2, cl. 3); Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 240-43, 635 P.2d 108, 114-16 (1981) (en banc) (plurality opinion) (Wash.Const. art. I, § 5 mandates broader protections of speech than U.S.Const. amend. I, because the former is not confined to cases involving state action). Moreover, the fundamental right to choose to have an abortion is entitled to enhanced protection under our State Constitution's doctrine of equal protection, found to be implicit in N.J.Const., Art. 1, par. 1. Right to Choose, 91 N.J. at 302-304. And individual rights involving personal privacy may be recognized under the State Constitution's bill of rights. See In re Grady, 85 N.J. 235, 250 (1981) (recognizing the right of all people to enjoy and pursue their individual well-being and happiness).
(3) Preexisting State Law — Previously established bodies of state law may also suggest distinctive state constitutional rights. See Schmid, 84 N.J. at 557. State law is often responsive to concerns long before they are addressed by constitutional claims. Howard, supra, 62 Val.L.Rev. at 1416-18. Such preexisting law can help to define the scope of the constitutional right later established. Id.
(4) Structural Differences — Differences in structure between the federal and state constitutions might also provide a basis for rejecting the constraints of federal doctrine at the state level. The United States Constitution is a grant of enumerated powers to the federal government. Saunders, 75 N.J. 200, 225-26 (1977) (Schreiber, J., concurring); Gangemi v. Berry, 25 N.J. 1, 8-9 (1957). Our State Constitution, on the other hand, serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives.
(5) Matters of Particular State Interest or Local Concern — A state constitution may also be employed to address matters of peculiar state interest or local concern. When particular questions are local in character and do not appear to require a uniform national policy, they are ripe for decision under state law. See, e.g., National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) (decision of what salary level to pay state employees properly reposes in states); Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851) (pilotage is not of such a nature as to require uniform rule throughout country). Moreover, some matters are uniquely appropriate for independent state action. For example, in Alston, we adopted a rule of standing to challenge searches and seizures that is broader than the federal standard. 88 N.J. at 227. We felt free to do so because that question implicated the management of our own court system, which is of peculiarly local concern. It also reflected a strong state policy in favor of access to our courts and liberalized standing to vindicate legal claims. See, e.g., Salorio v. Glaser, 82 N.J. 482, 490-91 (1980); N.J. Chamber of Commerce v. N.J. Elec. Law Enforce. Comm., 82 N.J. 57, 67 (1980); Home Builders League of South Jersey, Inc. v. Tp. of Berlin, 81 N.J. 127, 132 (1979); Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971).
(6) State Traditions — A state's history and traditions may also provide a basis for the independent application of its constitution. Thus, in Schmid, we emphasized New Jersey's strong tradition of protecting individual expressional and associational rights in holding that the New Jersey Constitution provided
(7) Public Attitudes — Distinctive attitudes of a state's citizenry may also furnish grounds to expand constitutional rights under state charters. While we have never cited this criterion in our decisions, courts in other jurisdictions have pointed to public attitudes as a relevant factor in their deliberations. See, e.g., Ravin v. State, 537 P.2d 494, 503-04 (Alaska 1975) (broad privacy protection mandated by Alaskans' desire for individualistic lifestyles); District Attorney v. Watson, 381 Mass. 648, ___, 1980 Mass.Adv.Sh. 2231, 2245, 411 N.E.2d 1274, 1282 (death penalty contrary to prevailing standards of decency in Massachusetts, as evidenced by absence of any use of death penalty in Commonwealth since 1948).
The explication of standards such as these demonstrates that the discovery of unique individual rights in a state constitution does not spring from pure intuition but, rather, from a process that is reasonable and reasoned. This process does not require presumptive weight to be accorded the federal experience, just an intelligent awareness and assessment of that experience.
Applying these principles to this case, I am satisfied that adequate grounds exist for invoking the State Constitution. New Jersey's long history of statutory and legal protection for telephonic communications makes independent resort to the State charter appropriate in the face of conflicting federal law.
The majority correctly recognizes that toll billing records are not entitled to protection under the federal Constitution. Ante at 342-343. The Fourth Amendment protects the privacy of telephonic communications. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, it does not protect "[w]hat a person knowingly exposes to the public." Id. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. Hence, in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court held that a pen register may be used to record the numbers dialed from one's home phone without violating that individual's Fourth Amendment rights.
The question then becomes whether there exists a right cognizable under our State Constitution to protect the privacy of telephone billing records. As I have already explained, I would invoke the State charter as an independent source for protecting individual rights when there are sound reasons grounded in State law, tradition or policy to do so. I find such reasons present in this case.
Defendant Hunt claims that the release of his home telephone billing records violated Article 1, par. 7 of the New Jersey Constitution. That provision mirrors the language of the Fourth Amendment. However, identical language does not necessarily imply identical meaning. As Justice Holmes once stated: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed.2d 372, 376 (1918). Thus, we have held that "[e]ven if the language of the state constitutional and federal constitutional provisions were identical, this Court could
While I agree with the majority that, as a general rule, federal and state courts should apply uniform rules governing search and seizure, ante at 344, the "search and seizure" provisions of the federal and state constitutions have not always been found to be coterminous. See Johnson, 68 N.J. at 353.
In this instance, our concern is with the privacy of one's telephone billing record, which is an inescapable incident of telephone use. A survey of New Jersey law reveals an historial pattern of providing the utmost protection for telephonic communications. As noted by the majority opinion, ante at 345-346, the New Jersey Legislature saw fit to condemn the tapping of telephone lines long before the Supreme Court handed down its landmark decision in Katz and Congress responded by passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520. See L. 1930, c. 215, § 1 at 987 (making it a misdemeanor to tap or make any connection with a telephone line or to aid any person to cause that to be done). This reflected an early and consistent public policy against this kind of invasion of privacy. Morss v. Forbes, 24 N.J. 341, 358-59 (1957). Our current statute, the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq, which generally parallels the present federal act, 18 U.S.C.A. §§ 2510-2520, has been construed as containing greater protections and stricter requirements than the federal statute. See, e.g., State v. Catania, 85 N.J. 418, 437 (1981) (State statutory wiretap minimization provision is more stringent than its federal counterpart); State v. Cerbo, 78 N.J. 595,
Of course, what is involved in this case is not the conversation itself but the record that a call was made. In a strict sense, the divulgence of the number dialed to make a call reveals nothing about the content of the conversation that transpired as a result of that call. Nevertheless, such information reveals a great deal about one's associational contacts and, inferentially, about the nature of one's communications. See Smith, 442 U.S. at 748, 99 S.Ct. at 2584, 61 L.Ed.2d at 231 (Stewart, J., dissenting). For this identical reason, I wrote separately in the Wire Communication case to express my view that the telephone company could be compelled under the Wiretap Act to conduct an in-progress trace in conjunction with a valid wiretap, subject to continuous judicial supervision and all of the strict procedural protections provided by that Act.
This interrelationship is evident from the very facts of this case. The phone billing records were sought as a preliminary step to obtaining a wiretap order. The police sought the information contained in those records to establish probable cause for a wiretap. The records revealed more than just numbers. They revealed enough about the nature of defendant's interactions and associations with other persons to justify allowing police to intrude on private communications. Since the content of telephone conversations themselves are unquestionably protected under our State charter, so logically should the record that conversations occurred. Thus, I agree with the majority that "all the information which [an individual] furnishes with respect to a particular call is private." Ante at 347. I would also urge that the use of such records be regulated strictly in accordance with the standards of the New Jersey Wiretapping and Electronic Surveillance Control Act. See Wire Communications, 76 N.J. at 283 (Handler, J., dissenting).
The protection we now accord telephone billing records follows the course long set under New Jersey law. As previously noted, our State has been a strong proponent in the area of protecting telephonic communications. We have safeguarded the privacy of such communications to the broadest extent possible. Consistent with this longstanding statutory and legal tradition of extending the utmost solicitude to telephonic communications, I am satisfied that the New Jersey Constitution protects the privacy of all aspects of telephone use, including toll billing records. Therefore, I concur in the opinion of the Court.
PASHMAN and HANDLER, JJ., concurring in the result.
For reversal — None.