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NJ Phone Tap and Wire Interception Law Overview

22
Nov
2009

by in Criminal Defense

One of the most powerful tools police and prosecutors in New Jersey have at their disposal in enforcing the State’s criminal laws is access to phone and wire taps and interceptions.

New Jersey’s Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides, in pertinent part, that upon consideration of an application, a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication, if the court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that:

a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense….
b. Particular communications concerning such offense may be obtained through such interception; [and] c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ….

The Wiretap Act also provides a framework for individuals seeking to suppress evidence gathered from illegal communication and data intercepts. It provides, in pertinent part, that: “Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:

a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face; or,
c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of section 12 of P.L.1968, c.409 (C.2A:156A-12).

A showing of bad faith on the part of law-enforcement officials is not necessary in order to warrant suppression of evidence obtained in violation of the Wiretap Act. State v. Worthy, 141 N.J. 368, 384 (1995). Nor is the Act’s exclusionary rule conditioned on a predicate finding of an intentional or deliberate violation or evasion of the Act’s requirements. Ibid. All that is required to warrant suppression of such evidence is a showing that the substantive elements of the statute were not met, i.e., that there was no probable cause or that there was no need for electronic surveillance. State v. Murphy, 148 N.J. Super. 542, 548 (1977).

The Murphy court stated: “Since electronic surveillance threatens to intrude upon the privacy and liberty of our citizens to such an extent that we must insist on strict compliance with the substantive and procedural safeguards established by statutory and constitutional law. Ibid. at 547-48. Nevertheless, suppression of evidence for errors of a procedural nature is not mandatory. Ibid.

N.J.S.A. 2A:156A-10(c) requires a determination by the court on the basis of facts submitted by the applicant that there is probable cause for belief that normal investigative procedures with respect to the offenses have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or appear to be too dangerous to employ.

Probable cause exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion.” State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967), cert. denied, 389 U.S. 1054 (1968). It is not a rigid concept; rather, it is a “flexible, nontechnical concept.” State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid.

In State v. Christy, supra 112 N.J. Super. at 64-65, the court found that where an illegal organization has attempted to be infiltrated, and that attempt failed, a wiretap Order was appropriate. In State v. Pemberthy, the court found that where efforts to introduce a confidential informant to a illegal enterprise would have compromised the investigation, it was reasonable to conclude that such efforts would not have been productive, thus justifying an affiant investigator’s request for a wiretap order. 224 N.J. Super. 280, 297 (1988).

Further, where surreptitious activities of a suspect rendered physical surveillance extremely difficult, it was found that normal investigative techniques would likely be unsuccessful. Ibid. Additionally, where normal investigative techniques failed in a prior, related investigation, that failure may be taken into account in assessing whether such techniques would likely be productive in a successive investigation. Ibid. citing State v. Braeunig, 122 N.J. Super. 319, 326-327 (App. Div. 1973).

If you believe the police have obtained evidence against you by way of a wire interception or phone tap, contact a NJ criminal defense attorney experienced in suppression motions for an evaluation of your case.

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