State v. Hunt

91 N.J. 338, 450 A.2d 952 (1982)

SCHREIBER, J.

Merrell Hunt and Ralph Pirillo, Sr. were indicted for bookmaking, N.J.S.A. 2A: 112-3, maintaining a place for gambling, J.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 defendant's 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. . . . We granted defendant's joint petition for certification... primarily to consider the constitutionality of the warrantless search and seizure of defendant's telephone toll billing records. We have considered the other issues raised by the defendants and find no merit in them. Accordingly, our discussion will be primarily directed to the disclosure of the telephone records.

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 Jersey Constitution. Both constitutional provisions acknowledge the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The historical roots of the Fourth Amendment centered about protection from unwarranted intrusions into the home. This privacy interest in the home and place of business has continued unabated throughout our judicial history. Indeed, as the telephone has taken its place in the home and at business, the privacy interest has expanded to include telephone conversations.

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.

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....

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.... Though notions of federalism may seem to justify this difference, enforcement of criminal laws in federal and state courts, sometimes involving the identical episodes, encourages application of uniform rules governing search and seizure. Divergent interpretations are unsatisfactory from the public perspective, particularly where the historical roots and purposes of the federal and state provisions are the same.

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, 132 A.2d (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: 156-1 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, 386 A.2d 1295. See also State v. Catania, 85 N.J. 418, 427 A.2d 537 (1981) (interpretation of wiretap minimization provision); State v. Cerbo, 78 N.J. 595, 397

A.2d 671 (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. We do so in the spirit announced in a recent comment, "The Interpretation of State Constitutional Rights," 95 Harv.L.Rev. 1324, 1367 (1982):

In our federal system, state constitutions have a significant role to play as protectors of individual rights and liberties. This role derives its character from the freedom of state courts to move beyond the protections provided by federal doctrine and from the distinctive character of state courts and state constitutions. But the state constitutional role is also shaped by the emergence of the federal Bill of Rights in recent decades as the primary constitutional shield against intrusions by all levels of government. The present function of state constitutions is as a second line of defense for those rights protected by the Federal Constitution and as an independent source of supplemental rights unrecognized by federal law.

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.

II

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 962-963. We have done so on the basis of provisions in our constitution not found in the federal constitution ... or on the basis of provisions virtually identical to federal provisions. . . . We have not hesitated to do this in the face of directly contrary United States Supreme Court decisions.

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 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.

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. Similarly, the majority here suggests that "[d]ivergent interpretations are unsatisfactory," ante at 955, absent "[s]ound policy reasons." Ante at 955.

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 cir

'I recognize that Justice Handler does not believe that the effect of his analysis would be to create a presumption against independent state constitutional analysis, ante at 967, but his opinion can be read to provide precisely that. It appears that he would find divergence from the federal constitution improper unless one of the standards he sets forth is met. To the extent this is true, he is creating a presumption that can only be overcome by fitting the case within one of those standards.

cumstances, 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 Madison, "independent tribunals of justice 'will be naturally led to resist every encroachment upon rights. . . .'" 90 Harv.L. Rev. at 504. The New Jersey Constitution is a separate fount of liberty, and we must enforce it.

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 constitution 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 Levinson, "The Constitution' in American Civil Religion," 1979 The Supreme Court Review 123, 140-41.3 State supreme courts, if not discouraged from independent constitutional analysis, can serve, in Justice Brandeis' words, "as a laboratory" testing competing interpretations of constitutional concepts that may better serve the people of those states. See New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1931) (Brandeis, J.,

66

3As discussed below, the United States Supreme Court clearly perceives reasons for conservatism in enforcement of constitutional rights that do not apply to state courts.

dissenting). In our federal system, there is strength in diversity and competition of ideas.4

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.

Yet, the very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them.

[Brennan, 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.... 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.

4As noted above, there are realms of constitutional law in which uniformity is an important interest and therefore must be considered. Absent such circumstances, however, we should not pursue uniformity for its own sake.

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 separately to expose the reasoning that I find implicit in our decision and to explain more fully the judicial principles which I believe underlie the salutary resort to state constitutions as a fountainhead of individual rights.

I

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".... 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.

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, 423 A.2d 615 (1980)....

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 National 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.' See Collins, "Reliance on State Constitutions-Away From a Reactionary Approach," 9 Hastings Const.L.Q. 1, 2 (1981); Bice, "Anderson and the Adequate State Ground," 45 S.Cal.L.Rev. 750, 766 (1972). See generally "Developments-The Interpretation of State Constitutional Rights," 95 Harv.L.Rev.1323, 1362 66 (1982).

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 954. 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....

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. The states are not always free to act independently under their own constitutions. State constitutions may be used to supplement or expand federally guaranteed constitutional rights. However, they may never be used to undermine or circumscribe them. U.S. Const., Art. VI, cl. 2. See State v. Funicello, 60 N.J. 60, 69, 286 A.2d 55 (1972) (Weintraub, C.J., concurring). Furthermore, a considerable measure of cooperation must exist in a truly effective federalist system. Both federal and state courts share the goal of working for the good of the people to ensure order and freedom under what is publicly perceived as a single system of law. See Hart, “Relations Between State and Federal Law," 54 Colum.L. Rev. 489 (1954); Note, supra, 13 Am. Crim.L.Rev. at 748-49. Moreover, while a natural [sic] monolithic legal system is not contemplated, some consistency and uniformity between the state and federal governments in certain areas of judicial administration is desirable.

For these reasons, state courts should be sensitive to developments in federal law. Federal precedent in areas addressed by similar provisions in ourstate constitutions can be meaningful and instructive. We have recently recognized the importance of federal sources of constitution doctrine. See General

1This, in a sense, has occurred in California, labeled "the birthplace of th[e] new judicial independence" by one commentator. Note, "State Constitutional Guarantees as Adequate State Ground: Supreme Court Review and Problems of Federalism," 13 Am.Crim.L.Rev. 737, 740 (1976). The voters of that state recently passed a referendum requiring state courts to give the same meaning to provisions of the California Constitution as is given to parallel provisions in the U.S. Constitution. See Proposition 8 (adopted June 8, 1982). The referendum may affect the ability of the California courts to give their own charter independent force.

Assembly v. Byrne, 90 N.J. 376, 381-384, 448 A.2d 438 (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.. .. There are several considerations that are relevant and important in making that determination.

(1) Textual Language-A state constitution's language may itself provide a basis for reaching a result different from that which could be obtained under federal law. Textual language can be relevant in either of two contexts. First, distinctive provisions of our State charter may recognize rights not identified in the federal Constitution. For example, the New Jersey Constitution provides for a right to education (N.J.Const., Art. VIII, & 4, par. 1) which has served as the basis for protections not afforded by the federal Constitution. Robinson, 62 N.J. 473, 303 A.2d 273.

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. ...

(2) Legislative History-Whether or not the textual language of a given provision is different from that found in the federal Constitution, legislative history may reveal an intention that will support reading the provision independently of federal law. For example, in Schmid, we explored the legislative history in determining that our free speech clause was intended to be more expansive than the First Amendment. 84 N.J. at 557, 423 A.2d 615....

(3) Preexisting State Law-Previously established bodies of state law may also suggest distinctive state constitutional rights. See Schmid, 84 N.J. at 557, 423 A.2d 615. 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, 381 A.2d 333 (1977) (Schreiber, J., concurring); Gangemi v. Berry, 25 N.J. 1, 8-9, 134 A.2d 1 (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.2 Schmid, 84 N.J. at 558, 423

A.2d 615; Smith v. Penta, 81 N.J. 65, 74, 405 A.2d 350 (1980); Gangemi, 25 N.J. at 8-9, 134 A.2d 1. Hence, the explicit affirmation of fundamental rights in our Constitution can be seen as a guarantee of those rights and not as a restriction upon them. Schmid, 84 N.J. at 558, 423 A.2d 615. See also Alderwood, 96 Wash.2d at 238-39, 242, 635 P.2d at 113, 115 (state action requirement is dictated by conservative pressures peculiar to federal constitutional role and, thus, is not applicable at the state level).

(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.... 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, 440 A.2d 1311. 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. . . .

(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 greater protections for the right to free speech than those found in the federal Constitution. And in State v. Bellucci, 81 N.J.531, 410 A.2d 666 (1979), we gave the state constitutional right to effective assistance of counsel more expansion protection than that found in the federal Constitution because of our firm policy regarding the proper role of attorneys in criminal trials....

(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.

2For example, the First Amendment simply provides that "Congress shall make no law... abridging the freedom of speech," U.S. Const. amend. I, while the New Jersey Constitution affirmatively guarantees that "[e]very person may freely speak, write and publish his sentiments on all subjects," N.J.Const. (1947), Art. 1, par. 6.