New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

New Jersey Supreme Court says State’s Wiretap Act is Constitutional

Edward Ates appealed his Bergen County conviction and life sentence for the murder of his son-in-law in Ramsey, New Jersey.  The Appellate Division affirmed, and the New Jersey Supreme Court granted certification to consider, among other issues, Ates’ assertion that New Jersey’s Wiretapping and Electronic Surveillance Control Act was unconstitutional.

The cell phone conversations underlying Ates’ argument were between Florida, Louisiana and New Jersey.  New Jersey law enforcement authorities obtained an order from a New Jersey wiretap judge to monitor the conversations.  In issuing the order, the judge complied with all of the procedures required by the wiretap statute.  Ates argued that the conversations should have been suppressed, and the Wiretap Act should be declared unconstitutional, because New Jersey authorities could not intercept and monitor out-of-state cell phone conversations from New Jersey; rather, the New Jersey authorities should have asked the proper officials in Florida and Louisiana to consent to the wiretaps.  The Act was also constitutionally defective because it allowed New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey.

In analyzing Ates’ arguments, the Supreme Court noted that the Wiretap Act permits interceptions to investigate criminal activity in New Jersey, and requires a judge to find that a particular offense has been, is being or will be committed in New Jersey, and that interception may provide evidence of the New Jersey offense.  The Act allows authorities to monitor conversations outside New Jersey from a listening post within New Jersey.  Thus, the statute requires actual connections between the subject conversations(s), the offense(s) at issue, the investigation of those offenses, and the State of New Jersey.  The fact that Ates’ arguments were far from novel was reflected in the Court’s review of a long list of Federal and State cases that have rejected similar challenges to wiretap statutes.

The decision spotlights the fact that the Wiretap Act conforms with and responds to the realities of contemporary life and modern modes of communication.  In distinguishing the interception of a mobile phone call from a search of a house, the Court observed that search warrants for residences are granted with an eye toward seizing tangible physical evidence from a single location.  In sharp contrast, wiretaps involve seizing transitory, intangible evidence generated by increasingly sophisticated mobile electronic devices.  Moreover, a judge in either the State where the phone is located or where the phone is monitored could issue the wiretap order, since either of these courts will be required to protect the defendant’s Fourth Amendment rights.  Thus, it does not matter which court issues the order, since the end result will be the same.  Accordingly, in the matter at bar, the wiretap order could have been signed by a judge in New Jersey, Florida or Louisiana, since each of these States had a connection to the underlying matter, and judges in any of these States would be obligated to protect Ates’ rights against unreasonable searches and seizures.

Historically, every jurisdiction has the right to investigate and prosecute criminal offenses committed within its boundaries, and the increasingly mobile nature of modern life – which is a direct outgrowth of the electronic devices we all now depend on – is not going to change that.