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

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MERRELL HUNT AND RALPH PIRILLO, SR., DEFENDANTS-APPELLANTS.

The Supreme Court of New Jersey.

Argued May 4, 1982. Decided August 18, 1982.

*340 Edwin J. Jacobs, Jr., argued the cause for appellants (Tort, Jacobs, Gross, Rosenberger & Todd and Goldenberg, Mackler & Feinberg, attorneys; John F. Collins and Harry A. Goldenberg, of counsel; John F. Collins and Alan M. Lands, on the brief).

Daniel Louis Grossman, Deputy Attorney General, argued the cause for respondent (Irwin I. Kimmelman, Attorney General of New Jersey, attorney).

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 *341 seizure of defendants' 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.

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 *342 working for someone else. On October 4, 1978, Detective Warner applied to the Superior Court for permission to install pen registers on the two telephones for 10 days. The pen register is a device that records the numbers dialed on a telephone. See In re Wire Communication, 76 N.J. 255, 264 n. 2 (1978) (describing mechanics of a pen register). The intercept application was granted and the pen registers attached.

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 *343 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.

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 *344 question in the negative because a person has no legitimate expectation of privacy in information voluntarily turned over to third parties. He analogized the telephone caller to a bank depositor who has no legitimate expectation of privacy in financial information transmitted to banks and exposed to their employees.^[1]

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 *345 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 (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. *346 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.

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." *347 Id., 389 U.S. at 352, 88 S.Ct. at 511, 19 L.Ed.2d at 582. Similarly, he is entitled to assume that the numbers he dials in the privacy of his home will be recorded solely for the telephone company's business purposes. From the viewpoint of the customer, all the information which he furnishes with respect to a particular call is private. The numbers dialed are private. The call is made from a person's home or office, locations entitled to protection under the Fourth Amendment and Article I, par. 7 of the New Jersey Constitution. Justice Stewart in his dissent in Smith v. Maryland, supra, cogently observed:

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life. [442 U.S. at 748, 99 S.Ct. at 2584, 61 L.Ed.2d at 231]

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.

*348 We realize that some state courts have followed the reasoning of Smith, holding there is no expectation of privacy in long distance call records of the telephone company. In re Order for Indiana Bell Telephone to Disclose Records, 409 N.E.2d 1089 (Sup.Ct.Ind. 1980); State v. Fredette, 411 A.2d 65 (Sup. Ct.Me. 1979); cf. Fitzgerald v. State, 599 P.2d 572 (Sup.Ct.Wyo. 1979) (bank records). However, this view has been sharply criticized. See 1 LaFave, Search and Seizure, § 2.7, at 67-69 (Supp. 1982) (contending that individuals have a legitimate expectation of privacy in telephone and bank records); Note, 15 Harv.C.R.-C.L.L.Rev. 753 (1980). We believe the better reasoned opinions accord with Professor LaFave's view. See Charnes v. DiGiacomo, 612 P.2d 1117 (Sup.Ct.Colo. 1980) (departing from United States v. Miller); People v. Blair, 25 Cal.3d 640, 602 P.2d 738, 159 Cal. Rptr. 818 (1979) (departing from Smith v. Maryland); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (departing from United States v. Miller); Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 529 P.2d 590, 118 Cal. Rptr. 166 (1974) (legitimate expectation of privacy in bank records). As Justice Mosk observed in Blair, "a telephone subscriber has a reasonable expectation that the calls he makes will be utilized only for the accounting functions of the telephone company and that he cannot anticipate that his personal life, as disclosed by the calls he makes and receives, will be disclosed to outsiders without legal process." 25 Cal.3d at 653, 602 P.2d at 746, 159 Cal. Rptr. at 826 (adopting rationale of People v. McKunes, 51 Cal. App.3d 487, 124 Cal. Rptr. 126 (1975)). Thus we are satisfied that the police wrongfully obtained the toll billing records of the defendant Hunt in that they were procured without any judicial sanction or proceeding.

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 *349 retroactivity would have a considerable adverse impact on the administration of justice. The Attorney General has advised us that there have been a significant number of telephone toll record acquisitions in criminal investigations and that the investigative technique of obtaining telephone billing records, like pen registers, has been employed generally in the initial stages of investigations. There are hundreds of pending cases, with innumerable defendants, involving these records. Under these circumstances and since we are concerned with the exclusionary rule, retroactivity is not appropriate. See State v. Burstein, 85 N.J. 394 (1981).^[2]

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 *350 search warrants. The lawfully obtained information in the affidavits upon which the court orders and warrants were based justified their issuance. Thus the evidence taken was properly seized and is not subject to suppression. Alderman v. United States, 394 U.S. 165, 180-83, 89 S.Ct. 961, 970-72, 22 L.Ed.2d 176, 190-92 (1969); State v. Ortense, 174 N.J. Super. 453 (App. Div. 1980).

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.

*351 I

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 *352 sought billing records "not only for Mr. Rosenbaum's telephone, but for all the telephones of the entire staff of the Washington Bureau of The New York Times for a six-month period." Id. at 1080-81.

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.

*353 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 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 *354 protection for individual liberties by limiting state powers to a greater degree than they are limited by the federal constitution. In deciding the appropriate extent of this protection, this Co