State v. Hector Feliciano(074395) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Hector Feliciano (a/k/a Hector Feleciano) (A-24-14) (074395)
Argued December 2, 2015 -- Decided March 9, 2016
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers the constitutionality of the “roving wiretap” provision of the State’s
wiretap law, which allows the police, under certain circumstances, to intercept communications on a newly
discovered telephone facility used by the target, without first returning to a judge, N.J.S.A. 2A:156A-9(g)(2).
In November 2007, the Camden County Prosecutor’s Office and members of the Philadelphia/Camden
High Intensity Drug Trafficking Area Task Force began to investigate a heroin trafficking network in Camden.
During the investigation, law enforcement officials applied for ten wiretap orders. Eight of the orders included
“roving” provisions, two of which were activated by the police. Afterward, law enforcement officials notified the
wiretap judge about the switch to both new facilities. Over time, the police intercepted numerous calls between
defendant and others about buying and selling narcotics, the quality of the drugs, and related issues. Ultimately, the
Task Force arrested twenty-four individuals; the grand jury indicted defendant and ten others. The indictment
charged defendant as a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3. Defendant was also
charged with two first-degree counts of possession with intent to distribute and distribution of heroin, cocaine,
MDMA/ecstasy, and marijuana, and second-degree conspiracy to distribute those drugs.
Defendant moved to suppress the evidence obtained from the wiretaps. He argued that the orders failed to
protect his constitutional rights because they were overly broad and allowed the police to intercept facilities that
were not specified. The judge denied the motion, finding that each wiretap application fulfilled the requirements of
N.J.S.A. 2A:156A-9 and was properly authorized. The judge also rejected defendant’s claim that, by allowing 24/7
interception, the wiretap orders were too broad. The court found that the orders were justified by the unpredictable
nature of the narcotics conspiracy and the minimization requirements imposed. Defendant also moved to dismiss
the count of the indictment that alleged that he was a leader of a narcotics trafficking network. The trial court
denied the motion concluding that the State presented “more than adequate” evidence to support a prima facie case.
Defendant pleaded guilty to leading a narcotics trafficking network, and the State dismissed the remaining charges.
Defendant appealed, claiming the court erred when it denied his motions to suppress the wiretap evidence
and dismiss a count of the indictment. He argued that the roving wiretap statute is unconstitutional because it does
not satisfy the particularity requirement and that the wiretap orders improperly permitted 24/7 surveillance. He also
claimed that the State failed to present sufficient evidence to the grand jury that he was a leader of a narcotics
trafficking network. The Appellate Division rejected defendant’s arguments and affirmed his conviction.
The Court granted defendant’s petition for certification. 222 N.J. 311 (2015).
HELD: When a target purposely changes facilities to avoid detection, law enforcement officers may switch over
and begin to monitor a new facility under the State’s wiretap law, provided they have otherwise fully complied with
the statute. Going forward, law enforcement must notify a wiretap judge within 48 hours of the switch and obtain
authorization to continue monitoring the new facility.
1. The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures. It
states that warrants must be supported by probable cause and must “particularly describ[e] the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV. The New Jersey Constitution contains nearly
identical language. N.J. Const. art. I, ¶ 7. (pp. 16-18)
2. The Fourth Amendment governs electronic interception of phone conversations. In 1968, Title III of the
Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520, established standards for law enforcement
officials to follow when seeking to intercept wire, oral, and electronic communications. Soon after, New Jersey
enacted the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), N.J.S.A. 2A:156A-1 to -
26, modeled after Title III. In 1986, Congress amended Title III and added the “roving wiretap” provision. From
1986 to 1998, Title III authorized roving wiretaps if “the application identifies the person believed to be committing
the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the
part of that person, to thwart interception by changing facilities,” among other requirements. 18 U.S.C.A. §
2518(11)(b)(i)-(iii) (1986) (amended 1998) (emphasis added). New Jersey added a roving wiretap provision in
1993, which closely tracked then-existing federal law. Congress amended Title III in 1998, easing the requirements
to obtain a roving wiretap, but the State Legislature did not follow suit. It maintained the original, stricter standard
that requires the State to show the target has a “purpose . . . to thwart interception.” New Jersey also did not add a
proximity requirement. Thus, under the Act, an application for a roving wiretap must specify the original facility,
but not the character and location of the phone the target jumps to. The application must identify the target whose
communications are to be intercepted. And, under New Jersey law, the applicant must demonstrate the target’s
purpose to thwart interception by changing facilities. (pp. 18-24)
3. To assess defendant’s claim that the Wiretap Act violates the particularity requirement, the Court gives careful
consideration to federal decisions interpreting the federal statute because New Jersey’s Wiretap Act is modeled after
Title III. Four federal circuit courts have considered similar challenges, and each rejected the claim. Given that
federal case law does not support defendant’s position, the Court focuses on the heightened protections that Article
I, Paragraph 7 of the State Constitution affords. (pp. 24-27)
4. The orders in this case, at the initial stage, do not present the concerns raised in State v. Marshall, 199 N.J. 602
(2009), a case on which defendant relies heavily. In Marshall, this Court concluded that a warrant failed to satisfy
the particularity requirement because it included conditional language that allowed the police to determine which
apartment to search after the warrant was issued, thereby “delegate[ing] to the police” the role of determining
probable cause. Id. at 613. Here, by contrast, the wiretap judge initially found probable cause to monitor a
particular facility, and that a particular target -- who was identified in the application -- had a purpose to thwart
interception by changing facilities. Marshall’s concerns, though, surface when a target moves beyond the original,
listed phone. Under the Act, law enforcement officers have the sole authority to identify the new facility that a
target has switched to, and to elect to intercept communications over it, without returning to the court. There are
public safety concerns underlying that approach. Simply put, if officers could not continue to monitor the new
phone, they would lose important evidence. That exigency can justify interception of a new facility without first
returning to a judge. (pp. 27-30)
5. If a court receives timely information about a target’s move to a new facility soon after the switch takes place, a
neutral judge can authorize continued interception or halt a wiretap if necessary. To avoid serious questions under
the State Constitution, the Court directs that certain procedures be followed going forward, including that the State
must notify the wiretap judge within 48 hours after it begins interception of a new facility. (pp. 31-34)
6. Defendant also challenges the wiretap orders entered in this case because they permitted interception twenty-four
hours a day, seven days a week. N.J.S.A. 2A:156A-12 provides that “[n]o order entered under this section shall
authorize the interception of any wire, electronic or oral communication for a period of time in excess of that
necessary under the circumstances.” (emphasis added). The statute also requires that reasonable efforts be made to
reduce the hours of interception, whenever possible. Here, the court’s orders directed the Task Force to make
reasonable efforts to reduce the hours of interception whenever possible, and, under the circumstances, there was no
abuse of discretion in allowing 24/7 monitoring in the investigation. Recognizing that the nature of a large-scale
narcotics distribution ring may involve unpredictable hours that can justify 24/7 interception in certain cases, the
preferred practice is to specify more limited hours of interception in a wiretap order whenever possible. (pp. 34-38)
7. Finally, the Court rejects defendant’s claim that the State did not present sufficient evidence before the grand jury
to support the charge that he was a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3. The trial
judge carefully reviewed the grand jury record and found that the State presented ample evidence to support each
element of the offense. (pp. 38-42)
2
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON, and JUDGE CUFF (temporarily
assigned) join in CHIEF JUSTICE RABNER’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
3
SUPREME COURT OF NEW JERSEY
A-24 September Term 2014
074395
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR FELICIANO (a/k/a
HECTOR FELECIANO),
Defendant-Appellant.
Argued December 2, 2015 – Decided March 9, 2016
On certification to the Superior Court,
Appellate Division.
Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
This case raises a novel question about the
constitutionality of the roving wiretap provision of the State’s
wiretap law. As a general rule, law enforcement officials must
follow a strict set of procedures and get court approval before
1
they may intercept communications over a telephone facility.
Among other requirements, the State must identify in advance the
specific facility it seeks to intercept.
If a suspect purposely switches telephone facilities to
thwart detection, though, he can effectively avoid being
intercepted. To address that situation, both federal and state
law contain a “roving wiretap” provision that allows the police,
under certain circumstances, to intercept communications on a
newly discovered facility used by the target, without first
returning to a judge. See 18 U.S.C.A. § 2518(11)(b); N.J.S.A.
2A:156A-9(g)(2). Under state law, a judge must have previously
made a finding about the target’s purpose to thwart interception
by changing facilities. N.J.S.A. 2A:156A-9(g)(2)(b), (c). In
practice, if a target then switches phones, law enforcement can
begin monitoring the new phone under the existing warrant.
Defendant challenges the roving wiretap provision. He
claims that because it does not require law enforcement to
identify a telephone facility with particularity and get court
approval in advance, the provision violates both the Fourth
Amendment and Article I, Paragraph 7 of the State Constitution.
When a target purposely changes facilities to avoid
detection, he creates an inherent exigency that important
evidence will be lost. We therefore find that law enforcement
officers may switch over and begin to monitor a new facility
2
under the State’s wiretap law, provided they have otherwise
fully complied with the statute. However, to avoid serious
questions under the State Constitution, we direct that, going
forward, law enforcement must notify a wiretap judge within 48
hours of the switch and obtain authorization to continue
monitoring the new facility.
We therefore modify and affirm the judgment of the
Appellate Division, which declined to find the roving wiretap
provision unconstitutional. We also affirm the panel’s judgment
that (1) the trial court did not abuse its discretion by
permitting interception at any time of the day, seven days a
week, in light of the nature of the large-scale narcotics
operation in this case, and (2) the State presented sufficient
evidence to the grand jury to establish that defendant was the
leader of a narcotics trafficking network.
I.
To recount the facts, we draw from the wiretap judge’s
detailed findings of fact as well as other materials in the
record.
In November 2007, Investigator Jeffrey Dunlap of the Camden
County Prosecutor’s Office, along with members of the
Philadelphia/Camden High Intensity Drug Trafficking Area Task
Force, began to investigate a large-scale heroin trafficking
network in Camden. Months later, the Task Force arrested
3
twenty-four individuals, many of whom were charged with
distributing large amounts of heroin, cocaine, MDMA/ecstasy, and
marijuana. Law enforcement officials applied for ten wiretap
orders during the course of the investigation, numbered, for
ease of reference, as “5WT,” “6WT,” and “8WT” through “15WT.”
Defendant Hector Feliciano was the target of five wiretaps; co-
defendants Jessie Morales and Santos Cuevas were the targets of
the other applications.
Eight of the ten wiretap orders included “roving”
provisions. Only two of the eight provisions, 10WT and 12WT,
were activated by the police. Afterward, law enforcement
officials notified the wiretap judge about the switch to both
new facilities.
The investigation initially focused on Morales. Undercover
officers made two controlled buys of heroin from Morales, who
offered to supply as much heroin as needed. The Task Force then
applied for a pen register1 for Morales’ cell phone, ending in
6148, and another phone, ending in 2421. Not long after,
Morales told a confidential informant to contact him on a third
1 A pen register is a device that identifies all local and long
distance numbers dialed, even if a call is not completed. See
United States v. Giordano, 416 U.S. 505, 549 n.1, 94 S. Ct.
1820, 1842, 40 L. Ed. 2d 341, 372 (1974) (Powell, J.,
dissenting).
4
cell phone -- one of a number of times that Morales and his co-
defendants switched to a different phone number.
On February 11, 2008, the Task Force applied for a wiretap
of the 6148 and 2421 numbers. The wiretap judge approved the
requests and entered two orders, 5WT and 6WT. As to each, the
judge found probable cause to believe that (1) “Morales has been
and is engaging with as yet unidentified others in a continuing
criminal enterprise to distribute” narcotics; (2)
“[c]ommunications evidentiary of such offenses will be obtained
through the interception applied for”; and (3) the identified
cell phone “is, has been, and is about to be used in the
commission of the aforesaid offenses, and is being utilized by”
Morales.
In each order, the judge also found probable cause to
believe that “Morales has previously acted to change
communications facilities for the purpose of thwarting law
enforcement. This purpose has been adequately shown. Moreover,
it has adequately been shown that it is likely he will continue
to do so.” As a result, the orders authorized law enforcement
to intercept communications from the 6148 and 2421 numbers “or
any subsequent phone determined during the course of this
investigation to be utilized by . . . Morales as a replacement
for [the respective numbers] in the event said phone is
inactivated, relating to the crimes of Possession with the
5
Intent to Distribute Controlled Dangerous Substances and
Conspiracy.”
The wiretap judge authorized interception twenty-four hours
a day, seven days a week, for a twenty-day period, in 5WT and
6WT. He also directed that “[i]nterception shall terminate as
soon as practicable and be conducted in such a manner to
minimize or eliminate the interception of communications . . .
by making reasonable efforts, whenever possible, to reduce the
hours of interception.” In addition, the order directed
monitors to minimize the interception of non-relevant
conversations.
On February 19, 2008, the police sought to amend 6WT when
activity on the 2421 number “abruptly ceased.” The police
confirmed that Morales had “abandoned” the number and begun
using a new one, 1041. The wiretap judge amended the order to
cover the new phone. Based on conversations intercepted on this
phone, the wiretap judge found that co-defendant Cuevas was
involved with Morales in trafficking narcotics.
The police then applied for and received authorization to
wiretap two cell phones that belonged to Cuevas, 8WT and 9WT.
The police intercepted 246 calls to defendant on 8WT, 28 of
which “directly related to the sale of narcotics.” In those
conversations, defendant agreed to supply Cuevas with heroin on
6
a number of occasions. The police also identified two cell
phone numbers that defendant used when he spoke with Cuevas.
On March 19, 2008, Morales and Cuevas spotted an undercover
police officer while they were distributing drugs. Days later,
in a conversation with defendant, Cuevas urged him to “put some
minutes on that phone” -- a reference to another unidentified
number. The wiretap judge concluded that, “out of fear of
police,” Cuevas wanted to use a new phone.
On March 28, 2008, the wiretap judge signed two new orders,
10WT and 11WT, for defendant’s cell phones. The orders
contained findings similar to those recounted above. The
wiretap judge found that defendant had changed phones with a
purpose to thwart law enforcement and therefore allowed
interception of calls from any other cell phone defendant used.
On April 2, 2008, the officers determined that defendant
had stopped using the phone covered by 10WT. They terminated
the wiretap on that phone and, pursuant to the roving wiretap
provision, started monitoring a new phone that defendant had
begun using, which ended in 7585. Law enforcement officers
notified the wiretap judge of the switch. In a memo dated April
4, 2008, which was supplied to the judge, Investigator Dunlap
noted that defendant provided the new number, 7585, to an
unidentified woman during an intercepted call on April 2, 2008.
Officials began monitoring the new number that day. They
7
continued to do so for twenty-five days until the original order
for 10WT expired.
On April 3, 2008, the Task Force applied for a roving
wiretap for a cell phone that Cuevas used, ending in 2228. The
wiretap judge entered order 12WT to authorize interception.
After eighteen days, officers concluded that Cuevas stopped
using the phone and terminated the wiretap. In a memo dated
April 21, 2008, Investigator Dunlap noted that on that day,
Cuevas provided defendant with another number, ending in 4074,
which the officers began to monitor the same day, pursuant to
12WT’s roving wiretap provision. The memo was also provided to
the judge. Police monitored number 4074 for twelve days, until
the original order for 12WT lapsed. The record does not appear
to refer to pertinent conversations from this number.
During a series of intercepted calls in late March and
early April 2008, including some on the 7585 phone, defendant
called an individual in New York, who the officers believed was
defendant’s heroin supplier. Other calls revealed that
defendant planned to travel to New York to get more heroin.
On April 8, 2008, defendant spoke with co-defendant Faylene
Carmichael and told her to rent a car. He added that they
should take the baby to make it look like a family trip. Soon
after, according to a wiretap application, the police observed
Carmichael arrive at defendant’s home in a rental car. Within
8
an hour, they left with a small child. Investigator Dunlap
testified before the grand jury that defendant spoke with his
New York supplier the same morning and discussed meeting later
in the day. Officers observed defendant arrive at an apartment
building in New York City early in the afternoon; defendant got
out of the rental car with an envelope and returned ten minutes
later.
On April 10, 2008, the Task Force intercepted a call
between defendant and a person later identified as William
Kearny. The two discussed a “DEA” (Drug Enforcement
Administration) action against “Pooh.” In the same
conversation, police believed that defendant told Kearny to
recruit Pooh’s “main” customers.
Two days later, defendant called his brother, who police
believed asked for 100 ecstasy pills from a shipment of 1000
pills that defendant had recently received.
Based on those and other intercepts, on April 28, 2008, the
wiretap judge granted an application to monitor three telephone
facilities that defendant used. The orders for 13WT, 14WT, and
15WT contained the same types of findings recounted above.
On May 1, 2008, officers intercepted a call defendant
placed to Ricardo Cordero. Police believed that defendant was
on vacation in Florida at the time, and that Cordero was
resupplying defendant’s associates when they needed drugs.
9
During the conversation, Cordero told defendant that “they can
meet me at” a particular grocery store.
For the rest of the month, the police intercepted numerous
calls between defendant and others about buying and selling
narcotics, the quality of the drugs, and related issues. The
Task Force applied for and received extensions for the orders
for 13WT and 14WT on May 27, 2008.
The Task Force also applied for two dozen arrest warrants
and six search warrants on June 20, 2008. The wiretap judge
authorized all of them, including arrest warrants for defendant,
Morales, and Cuevas, and a search warrant for a Dodge Avenger,
another rental car. Law enforcement had surveilled defendant,
Carmichael, and a child traveling to New York City in the car on
June 20, 2008. After they observed a hand-to-hand exchange
between defendant and an individual the officers believed was
defendant’s New York supplier, they followed the car while it
traveled back to New Jersey. When the officers executed the
warrant, they found about 200 grams of heroin and $600 in cash
on defendant. They also seized three cell phones.
Defendant made a statement to the police after his arrest.
He admitted that he had paid his supplier $11,000 for the 200
grams of heroin he possessed. Defendant added that he had
received 1500 to 1800 grams of heroin from the supplier during a
10
four-to-five-month period, and that he had packaged the heroin
and supplied it to several drug sets in Camden.
Investigator Dunlap testified at length before a Camden
County grand jury on June 4, 2009. He recounted various details
about the long-term investigation, some of which are summarized
above. The grand jury returned an indictment the following week
against defendant and ten others. Count seven of the indictment
charged defendant as a leader of a narcotics trafficking
network, a first-degree offense contrary to N.J.S.A. 2C:35-3.
Defendant was also charged with two first-degree counts of
possession with intent to distribute and distribution of heroin,
cocaine, MDMA/ecstasy, and marijuana, and second-degree
conspiracy to distribute those drugs.
Defendant moved to suppress the evidence obtained from the
wiretaps. He argued that the orders failed to protect his
constitutional rights because they were overly broad and allowed
the police to intercept facilities that were not specified in
the orders. The same judge who oversaw the wiretap heard and
denied the motion. After the court reviewed the investigation
in detail and made extensive findings, the judge found that each
wiretap application fulfilled the requirements of N.J.S.A.
2A:156A-9 and was properly authorized. The judge also rejected
defendant’s claim that, by allowing 24/7 interception, the
wiretap orders were too broad. The court found that the orders
11
were justified by the unpredictable nature of defendant’s
narcotics conspiracy and the minimization requirements imposed.
Defendant also moved to dismiss count seven of the
indictment, which alleged that he was a leader of a narcotics
trafficking network. The trial court outlined the elements of
the offense and reviewed with care the evidence presented to the
grand jury in support of each element. The court concluded that
the State presented “more than adequate” evidence to support a
prima facie case and denied the motion.
On October 28, 2011, defendant pleaded guilty to count
seven and admitted that he was a leader of a narcotics
trafficking network, in violation of N.J.S.A. 2C:35-3. The
State, in turn, dismissed the remaining charges. Defendant
expressly reserved the right to appeal the motions described
above. Consistent with the plea agreement, the court sentenced
defendant on January 13, 2012 to thirty years’ imprisonment with
fifteen years of parole ineligibility. Among other fines and
penalties, the court imposed a $200,000 anti-profiteering fine
and ordered defendant to forfeit $12,609 in cash seized from
him.
Defendant appealed. He claimed the trial court erred when
it denied his motions to suppress the wiretap evidence and
dismiss count seven. He argued that the roving wiretap statute
is unconstitutional because it does not satisfy the
12
particularity requirement and that the wiretap orders improperly
permitted 24/7 surveillance. He also claimed that the State
failed to present sufficient evidence to the grand jury on count
seven.
The Appellate Division rejected defendant’s arguments and
affirmed his conviction. Because the State’s wiretap statute is
modeled after federal law, the panel looked to federal case law
for guidance. The panel observed that “federal circuit courts
have consistently upheld roving wiretaps” against constitutional
challenges, and found no basis for heightened protection under
the State Constitution.
The Appellate Division also found that the wiretap judge
did not abuse his discretion by permitting 24/7 interception in
light of settled case law and the nature of the conspiracy.
Finally, the panel concluded that the State presented “ample
evidence” to the grand jury to establish that defendant was the
leader of a narcotics trafficking network.
Defendant raised the same three issues in his petition for
certification, which the Court granted. 222 N.J. 311 (2015).
II.
Defendant argues that the roving wiretap provision of the
State’s wiretap act, N.J.S.A. 2A:156A-9(g)(2), violates the
particularity requirement of the State and Federal Constitutions
-- namely, the mandate that warrants “particularly describ[e]
13
the place to be searched.” U.S. Const. amend. IV; N.J. Const.
art. 1, ¶ 7. Defendant claims that because wiretap orders
issued under the statute do not identify the new telephone
facility to be monitored, the orders impermissibly delegate to
law enforcement the task of finding probable cause to tap a
phone. The statute, defendant argues, therefore eliminates
judicial oversight that the State Constitution requires.
Although federal cases have upheld the constitutionality of the
analogous federal provision, defendant contends that the State’s
roving wiretap provision runs afoul of the State Constitution,
which offers greater privacy protection to New Jersey residents.
Alternatively, defendant suggests that the wiretap statute
could be read to include an exception for exigent circumstances.
In the case of true exigency, defendant contends, the police
could continue the sanctioned wiretap on a new phone “only until
they are able to amend the wiretap order with the new number.”
Defendant also argues that the wiretap orders impermissibly
authorized 24/7 surveillance. He claims that the wiretap
applications identified a narrower timeframe when calls were
likely to occur; the orders, as a result, were for a period “in
excess of that necessary under the circumstances,” contrary to
N.J.S.A. 2A:156A-12.
Finally, defendant claims that the State did not present
sufficient evidence to the grand jury to support each element of
14
the charge that he was a leader of a narcotics trafficking
network.
The Court granted the motion of the American Civil
Liberties Union of New Jersey (ACLU) to appear as amicus curiae.
The ACLU also argues that roving wiretaps do not satisfy the
particularity requirement of the State Constitution because they
fail to describe particularly the evidence to be searched. The
ACLU submits that the roving wiretap statute vests too much
discretion in law enforcement officers and allows them, instead
of a judge, to decide which telephone facility to search. The
ACLU asserts that, rather than find that the law meets the
particularity requirement, the Court could treat roving wiretaps
as an exception to the warrant requirement subject to certain
safeguards.
The Attorney General, on behalf of the State, emphasizes
that every federal court that has addressed defendant’s
particularity claim has rejected it. The State submits that
because this Court typically follows federal law when it
considers wiretap challenges to comparable state law, the Court
should do the same here. The Attorney General stresses that
roving wiretaps merely allow the police to intercept temporarily
a newly discovered phone, used by an identified target, after a
judge has found probable cause to believe the target changes
phones to thwart interception. The State adds that the police
15
did not exercise unbridled discretion in this case; they instead
notified the wiretap judge when they used the roving wiretap
provision.
The Attorney General also argues that 24/7 monitoring was
appropriate in light of the unpredictable pattern of calls in
this large-scale narcotics operation as well as law
enforcement’s efforts to reduce the hours of interception. In
addition, the Attorney General highlights the evidence before
the grand jury, which the State claims sufficiently supported
each element of the charge that defendant led a narcotics
trafficking network.
II.
We begin with defendant’s challenge to the
constitutionality of the roving wiretap provision. Defendant
argues that the provision violates the particularity requirement
of the Federal and State Constitutions.
A.
The Fourth Amendment to the United States Constitution
guards against unreasonable searches and seizures. U.S. Const.
amend. IV. It states that warrants must be supported by
probable cause and must “particularly describ[e] the place to be
searched, and the persons or things to be seized.” Ibid.
Article I, Paragraph 7 of the New Jersey Constitution contains
nearly identical language. N.J. Const. art. I, ¶ 7.
16
To satisfy that mandate, officers typically gather evidence
to establish probable cause, but only a “neutral and detached
magistrate” may authorize a warrant. See United States v. U.S.
Dist. Court, 407 U.S. 297, 316, 92 S. Ct. 2125, 2136, 32 L. Ed.
2d 752, 766 (1972); State v. Brown, 216 N.J. 508, 539 (2014).
The particularity requirement, in general, mandates that a
warrant sufficiently describe the place to be searched so “that
the officer with a search warrant can with reasonable effort
ascertain and identify the place intended.” State v. Marshall,
199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267
U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)).
The purpose of the requirement “was to prevent general
searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct.
1013, 1016, 94 L. Ed. 2d 72, 80 (1987). As the Supreme Court
has explained,
[v]ivid in the memory of the newly independent
Americans were those general warrants known as
writs of assistance under which officers of
the Crown had so bedeviled the colonists. The
hated writs of assistance had given customs
officials blanket authority to search where
they pleased for goods imported in violation
of the British tax laws.
[Stanford v. Texas, 379 U.S. 476, 481, 85 S.
Ct. 506, 510, 13 L. Ed. 2d 431, 435 (1965).]
The Framers added the particularity requirement to the Bill of
Rights to prevent such “wide-ranging exploratory searches.”
17
Garrison, supra, 480 U.S. at 84, 107 S. Ct. at 1016, 94 L. Ed.
2d at 80; see also State v. Muldowney, 60 N.J. 594, 600 (1972).
Marshall illustrates the force of the particularity
requirement. In that case, the police had gathered evidence
against a suspect, which included a series of controlled buys of
narcotics. Marshall, supra, 199 N.J. at 607. During the
investigation, the police observed the suspect enter a building
with two separate apartments. Id. at 606-07. The police
applied for and obtained a warrant with conditional language
that allowed them to search only if (1) the police secured the
suspect outside the building and (2) a search of the suspect
revealed documents or keys that identified the specific
apartment to which the suspect had “possession, custody,
control, or access,” or the suspect himself revealed that
information to the police. Id. at 608.
This Court concluded that the warrant was deficient because
it allowed the police to determine which apartment to search
after the warrant was issued. Id. at 613. “[T]he role of the
neutral and detached magistrate” to determine probable cause
“was delegated to the police.” Ibid.
B.
The Fourth Amendment governs not only physical searches but
also electronic interception of phone conversations. See Katz
v. United States, 389 U.S. 347, 352-53, 88 S. Ct. 507, 512, 19
18
L. Ed. 2d 576, 582-83 (1967); Berger v. New York, 388 U.S. 41,
58-59, 87 S. Ct. 1873, 1883, 18 L. Ed. 2d 1040, 1052 (1967).
The seminal opinions in Katz and Berger outlined certain
principles to protect individual privacy rights in the area of
electronic surveillance.
Congress responded to the decisions in 1968 when it enacted
Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A.
§§ 2510-2520. The new law “established minimum standards for
federal and state law enforcement officials to follow when
seeking to intercept wire, oral, and electronic communications.”
State v. Ates, 217 N.J. 253, 266, cert. denied, U.S. ,
135 S. Ct. 377, 190 L. Ed. 2d 254 (2014). Soon after, also in
1968, New Jersey enacted the Wiretapping and Electronic
Surveillance Control Act (“Wiretap Act” or “Act”), N.J.S.A.
2A:156A-1 to -26, modeled after Title III. See Ates, supra, 217
N.J. at 266 (citations omitted).
Under the Wiretap Act, judges can authorize a wiretap if,
among other things, they find probable cause to believe 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
[enumerated] offense . . .;
b. Particular communications concerning such
offense may be obtained through such
interception;
19
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; [and]
d. Except in the case of an application
meeting the requirements of [N.J.S.A. 2A:156A-
9, the roving wiretap provision], the
facilities from which, or the place where, the
wire, electronic or oral communications are to
be intercepted, are or have been used, or are
about to be used, in connection with the
commission of such offense, or are leased to,
listed in the name of, or commonly used by,
such individual.
[N.J.S.A. 2A:156A-10(a) – (d).]
The statute also contains strict minimization requirements.
N.J.S.A. 2A:156A-12 provides that
[n]o order entered under this section shall
authorize the interception of any wire,
electronic or oral communication for a period
of time in excess of that necessary under the
circumstances. Every order entered under this
section shall require that such interception
begin and terminate as soon as practicable and
be conducted in such a manner as to minimize
or eliminate the interception of such
communications not otherwise subject to
interception under this act by making
reasonable efforts, whenever possible, to
reduce the hours of interception authorized by
said order.
In 1986, Congress amended Title III and added what has
become known as the “roving wiretap” provision -- codified at 18
U.S.C.A. § 2518(11). Pub. L. No. 99-508, Title I, § 106, 100
Stat. 1848, 1856-57 (1986). Subsection (a) applies to the
20
interception of oral communications; subsection (b) governs wire
or electronic communications, which are involved in this appeal.
From 1986 to 1998, subsection (b) authorized the issuance
of a roving wiretap if (1) a high-level official approved the
application; (2) “the application identifies the person believed
to be committing the offense and whose communications are to be
intercepted and the applicant makes a showing of a purpose, on
the part of that person, to thwart interception by changing
facilities”; and (3) “the judge finds that such purpose has been
adequately shown.” 18 U.S.C.A. § 2518(11)(b)(i)-(iii) (1986)
(amended 1998) (emphasis added). In those cases, it is not
necessary for the application to include “a particular
description of the nature and location” of the facility to be
intercepted, 18 U.S.C.A. § 2518(1)(b)(ii), or to establish
probable cause that the facilities to be intercepted are being
used in connection with the commission of the specified offense,
or are leased to, listed in the name of, or commonly used by the
target, 18 U.S.C.A. § 2518(3)(d).
Congress amended subsection (b)(ii) in 1998. Pub. L. No.
105-272, Title VI, § 604, 112 Stat. 2396, 2413 (1998). The
current law, as revised, requires applicants for a roving
wiretap to “make[] a showing that there is probable cause to
believe that the person’s actions could have the effect of
thwarting interception from a specified facility.” 18 U.S.C.A.
21
§ 2518(11)(b)(ii) (emphasis added). The change in the
highlighted language eased the requirements to obtain a roving
wiretap. See William C. Banks and M.E. Bowman, Executive
Authority for National Security Surveillance, 50 Am. U. L. Rev.
1, 111 (October 2000). Congress also added a section that
limits “interception only for such time as it is reasonable to
presume that the person identified . . . is or was reasonably
proximate” to the facility to be intercepted. 18 U.S.C.A. §
2518(11)(b)(iv).
New Jersey added a roving wiretap provision in 1993. L.
1993, c. 29, § 8. It closely tracked then-existing federal law,
and reads as follows:
g. An application need not meet the
requirements of [N.J.S.A. 2A:156A-9(c)(4)]
if:
. . . .
(2) with respect to the application for
an interception of a wire or electronic
communication:
(a) the application is approved by the
Attorney General or county prosecutor or
a person designated to act for such an
official and to perform his duties in and
during his actual absence or disability;
and
(b) the application identifies the
person believed to be committing the
offense and whose communications are to
be intercepted and the applicant makes a
showing of a purpose, on the part of that
22
person, to thwart interception by
changing facilities; and
(c) the judge finds that such purpose
has been adequately shown.
[N.J.S.A. 2A:156A-9(g) (emphasis added).]
Like under federal law, the carve-out in the first sentence
means that the State need not establish “the character and
location of the particular wire or electronic communication
facilities involved” in the case of a roving wiretap. See
N.J.S.A. 2A:156A-9(c).
When Congress revised the federal standard in 1998, the
State Legislature did not follow suit. It maintained the
original, stricter standard that requires the State to show the
target has a “purpose . . . to thwart interception.” Compare
N.J.S.A. 2A:156A-9(g)(2)(b) with 18 U.S.C.A. § 2518(11)(b)(ii).
New Jersey also did not add a proximity requirement.
Thus, an application for a roving wiretap under the Act
must specify the original facility, but not the character and
location of the phone the target jumps to. The application must
identify the target whose communications are to be intercepted.2
And, under New Jersey law, the applicant must adequately
2 For a traditional, non-roving wiretap, the order need only
identify the target, “if known.” 18 U.S.C.A. § 2518(4)(a)
(emphasis added); N.J.S.A. 2A:156-12(b); see also United States
v. Petti, 973 F.2d 1441, 1445 & n.3 (9th Cir. 1992), cert.
denied, 507 U.S. 1035, 113 S. Ct. 1859, 123 L. Ed. 2d 480
(1993).
23
demonstrate the target’s purpose to thwart interception by
changing facilities.
As we noted in Ates, supra, “[t]he Wiretap Act must be
strictly construed to safeguard an individual’s right to
privacy.” 217 N.J. at 268 (citations omitted). “As with any
statute, though, we presume the law is constitutional.” Ibid.
Defendant has the burden to overcome that presumption. Ibid.
C.
To assess defendant’s claim that the Wiretap Act violates
the particularity requirement, we give “careful consideration to
federal decisions interpreting the federal statute” because New
Jersey’s Wiretap Act is modeled after Title III. Id. at 269.
Four federal circuit courts have considered similar
challenges. Each rejected the claim. The Ninth Circuit was the
first to address the federal roving wiretap provision in Petti,
supra. At the outset, the court outlined the test to determine
“the sufficiency of the warrant description”: “whether the
place to be searched is described with sufficient particularity
to enable the executing officer to locate and identify the
premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly
searched.” Petti, supra, 973 F.2d at 1444 (quoting United
States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985), cert.
denied, 475 U.S. 1026, 106 S. Ct. 1224, 89 L. Ed. 2d 334
24
(1986)). “To satisfy the particularity requirement,” the panel
continued, “the description of the place to be searched must not
be so broad as to allow the search of places for which probable
cause to search has not been demonstrated, or so vague that an
executing officer might mistakenly search a place for which
authorization was not granted.” Ibid.
That court observed that if the description “avoids these
dangers, it may comply with the particularity requirement even
though it does not specify the physical location of the place to
be surveilled.” Ibid. In the context of roving wiretaps, the
Ninth Circuit held as follows:
The conditions imposed on “roving”
wiretap surveillance by 18 U.S.C. §
2518(11)(b)(ii) satisfy the purposes of the
particularity requirement. The statute does
not permit a “wide-ranging exploratory search”
and there is virtually no possibility of abuse
or mistake: Only telephone facilities
actually used by an identified speaker may be
subjected to surveillance, and the government
must use standard minimization procedures to
ensure that only conversations relating to a
crime in which the speaker is a suspected
participant are intercepted. See 18 U.S.C. §
2518(5). Further, the statute excuses failure
to identify the particular telephone
facilities to be surveilled only if the
government establishes to the court’s
satisfaction that it is impossible to specify
the facilities because it is the suspect’s
purpose to thwart interception by changing
them. See 18 U.S.C. § 2518(11)(b)(ii).
[Petti, supra, 973 F.2d at 1445 (interpreting
1986 version of 18 U.S.C.A. § 2518(11)).]
25
The panel therefore concluded that the roving wiretap statute
satisfied the particularity requirement and was constitutional.
Ibid. For similar reasons, the Second, Fifth, and Seventh
Circuits agreed with Petti. See United States v. Jackson, 207
F.3d 910, 914 (7th Cir.), vacated on other grounds, Jackson v.
United States, 531 U.S. 953, 121 S. Ct. 376, 148 L. Ed. 2d 290
(2000); United States v. Gaytan, 74 F.3d 545, 553 (5th Cir.
1996); United States v. Bianco, 998 F.2d 1112, 1123-24 (2d Cir.
1993) (interpreting analogous “roving bug” provision under 18
U.S.C.A. § 2518(11)(a)), cert. denied, 511 U.S. 1069, 114 S. Ct.
1644, 128 L. Ed. 2d 364 (1994); see also United States v.
Silberman, 732 F. Supp. 1057, 1062-63 (S.D. Cal. 1990), aff’d in
part, vacated in part sub nom. Petti, supra, 973 F.2d 1441 (9th
Cir. 1992).3
Defendant suggests that the above analysis conflicts with
the United States Supreme Court’s recent decision in Riley v.
California, 573 U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430
(2014). Riley, however, dealt with a different question:
whether the police could conduct a warrantless search of data in
3 Certain commentators have also concluded that the federal
roving wiretap provision is constitutional. See Michael
Goldsmith, Eavesdropping Reform: The Legality of Roving
Surveillance, 1987 U. Ill. L. Rev. 401, 403 (1987); Clifford S.
Fishman, Interception of Communications in Exigent
Circumstances: The Fourth Amendment, Federal Legislation, and
the United States Department of Justice, 22 Ga. L. Rev. 1, 68-69
(1987).
26
a cell phone under the search-incident-to-arrest exception to
the warrant requirement. Id. at ___, 134 S. Ct. at 2484-85, 189
L. Ed. 2d at 441-42. Riley did not refine or even address the
particularity requirement.
Although defendant challenges the constitutionality of the
State roving wiretap provision under both the Federal and State
Constitutions, he focuses primarily on the heightened
protections that Article I, Paragraph 7 of the State
Constitution affords. See State v. Earls, 214 N.J. 564, 584
(2013). We do the same, given that federal case law does not
support defendant’s position.
D.
Defendant relies heavily on Marshall. In that case, the
search warrant did not establish probable cause to search a
particular apartment. Marshall, supra, 199 N.J. at 608, 613.
Instead, the warrant delegated to the police the task of
selecting the precise apartment to be searched. Id. at 613.
The orders in this case, at the initial stage, do not
present the concerns raised in Marshall. Here, on the two
occasions that the roving wiretap provision was used, the
wiretap judge initially found probable cause to monitor a
particular facility. The judge also found that a particular
target -- who was identified in the application -- had a purpose
to thwart interception by changing facilities.
27
Marshall’s concerns, though, surface when a target moves
beyond the original, listed phone. Defendant raises serious
questions under the State Constitution about the delegation of
authority to law enforcement once that happens. Under the
Wiretap Act, law enforcement officers have the sole authority to
identify the new facility that a target has switched to, and to
elect to intercept communications over it, without returning to
the court.
We recognize the public safety concerns underlying that
approach. See S. Rep. No. 99-541, at 5, 31 (1986) (stating that
roving wiretap provision and other statutory changes “will be
particularly helpful to the Justice Department in its fight
against drug trafficking,” and noting that “[t]he Committee
finds such a [roving wiretap] provision necessary to cover
circumstances under which law enforcement officials may not
know, until shortly before the communication, which telephone
line will be used by the person under surveillance”); Press
Release, Office of the Governor, Governor Florio Signs Law
Targeting High-Tech Criminals (Jan. 28, 1993) (noting that
because police must specify “the phone to be tapped[,] [d]rug
dealers and organized crime figures are aware that they can
avoid detection by placing calls from randomly-selected public
phones”). If a target changes facilities to thwart
interception, important evidence may well be lost if the State
28
must begin the approval process anew each time. The reason for
that is simple: it takes time for the State to draft and review
a wiretap application that will be scrutinized with care and
possibly challenged afterward, to obtain approval from the
Attorney General, county prosecutor, or an appropriate designee,
N.J.S.A. 2A:156A-9(g)(2)(a), and to present the application for
review and approval by a judge. Advances in technology have
made the process easier, but they cannot eliminate those steps.
As a result, because of practical concerns, a target could evade
detection altogether by switching facilities frequently enough.
By the time law enforcement is prepared to begin to monitor
a target’s new phone under the roving wiretap provision, a
number of things have already taken place: a judge has made a
probable cause finding about the target’s involvement in
specified criminal activity and has found that communications
about the offense may be gathered through interception; a judge
has additionally made a finding of a purpose, on the part of the
target, to thwart interception by changing facilities; the
target has in fact stopped using the originally designated
phone; and the target has moved on to a replacement phone.
In that situation, the seriousness of the offense has
already been established, the degree of urgency is plain, the
amount of time needed to get a warrant is not insubstantial, and
there is a reasonable belief that evidence is about to be lost.
29
See State v. DeLuca, 168 N.J. 626, 632-33 (2001). Therefore, a
target’s purposeful choice to switch facilities in order to
thwart interception, under those circumstances, presents an
inherent exigency that critical evidence tied to a serious
offense will be lost because of the target’s pointed, deliberate
behavior. See Riley, supra, 573 U.S. at ___, 134 S. Ct. at
2487, 189 L. Ed. 2d at 445; Kentucky v. King, 563 U.S. 452, 460,
131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874-75 (2011); DeLuca,
supra, 168 N.J. at 632-33. Simply put, if law enforcement
officers could not continue to monitor the new phone under that
scenario, they would lose important evidence. That exigency can
justify continued interception of a new facility without first
returning to a judge. In other words, there is a basis for the
officer, acting alone, to identify the new target facility and
start to intercept communications without additional court
involvement.
Defendant and amicus also address the next steps in the
process. In this case, for example, investigators had court
approval to intercept calls on a particular cell phone ending in
5769, under 10WT. They started to monitor conversations on
March 28, 2008. Days later, the target switched phones and,
consistent with the order, investigators began to intercept
calls on the new number ending in 7585. They did so for twenty-
five days, from April 2 to April 27, 2008.
30
Defendant and amicus contend that an extended period of
interception of a new facility -- without separate court
approval or judicial oversight -- cannot survive scrutiny under
the State Constitution. The State represents that it notified
the wiretap judge after it switched to monitor new telephone
facilities under both 10WT and 12WT. The record contains copies
of two memos by Investigator Dunlap, provided to the judge,
which explain the basis for the changes.
We commend the practice the State used. If a court
receives timely information about a target’s move to a new
facility soon after the switch takes place, a neutral judge can
authorize continued interception or halt a wiretap if necessary.
The Wiretap Act has a provision to facilitate the informal
practice the State used here. Under section 12(h),
[w]henever an order authorizing an
interception is entered, the order may require
reports to be made to the judge who issued the
order showing what progress has been made
toward achievement of the authorized objective
and the need for continued interception. Such
reports shall be made at such intervals as the
court may require.
[N.J.S.A. 2A:156A-12(h).]
In appropriate cases, the Court has the power to construe a
statute “to free it from constitutional doubt.” In re Directive
of the N.J. Dep’t of Envtl. Prot., 110 N.J. 69, 82-83 (1988)
(quoting N.J. State Chamber of Commerce v. N.J. Election Law
31
Enf’t Comm’n, 82 N.J. 57, 75 (1980)); see also Town Tobacconist
v. Kimmelman, 94 N.J. 85, 104 (1983). To avoid the serious
State constitutional question that defendant and amicus raise --
about continued interception of a newly identified phone,
without court involvement, under the roving wiretap provision --
we direct as follows:
Future orders for roving wiretaps should direct the State
to notify the wiretap judge within 48 hours after the State
begins interception of a new facility. In a report to the
wiretap judge, the State should identify the new facility, relay
when interception began, and explain the basis for switching to
the new facility. If sufficient details are presented to
supplement the original application, the wiretap judge will be
in a position to decide whether interception should continue.
In other words, the judge can determine if there is probable
cause to believe that (1) the target identified in the original
application has used or will be using the new facility, and (2)
communications about the offenses identified in the original
application may be obtained on the new facility.
We direct that reports be submitted within 48 hours of the
start of interception of the new facility based on a comparable
situation addressed in the Wiretap Act. Under N.J.S.A. 2A:156A-
13, the State may informally apply for authorization to begin
monitoring a telephone, without a court order, in the case of an
32
emergency that involves (1) “the investigation of conspiratorial
activities of organized crime” or (2) “immediate danger of death
or serious bodily injury to any person.” Within 48 hours of
getting verbal approval, the State must apply for a formal
order. Ibid.
In the case of a roving wiretap, if it is not practical for
the State to submit the report described above within 48 hours,
the report should be submitted as soon as possible, with an
adequate justification for the delay.
In light of the tight timeframe, we do not envision an
elaborate process. The State can submit the required
information in a letter to the Court under section 12(h), with a
place at the end of the document for the court to enter its
findings. If the judge is persuaded that a sufficient showing
has been made, the court can find that there is probable cause
for the two elements outlined above -- that the target
identified in the original application has used or will be using
the new facility, and that communications about the offenses
identified in the original application may be obtained on the
new facility -- and the court can authorize continued
interception. If the judge does not find a sufficient basis to
continue the interception, the court will order that
interception must cease.
33
We believe that the procedure set forth above eliminates
doubts defendant has raised about the roving wiretap provision
under the State Constitution. The approach also preserves the
intended scope of the statute the Legislature enacted. See In
re Directive of the N.J. Dep’t of Envtl. Prot., supra, 110 N.J.
at 83; N.J. State Chamber of Commerce, supra, 82 N.J. at 76.
As applied to this case, the information supplied to the
wiretap judge provided a basis for the first finding, that
defendant has used or will be using the new facility. The
notice to the judge, coupled with other evidence in the
extensive record, provided a basis for the second finding as
well. We do not fault the experienced, specially designated
wiretap judge who oversaw this investigation for not
anticipating today’s ruling and expressly making those findings.
IV.
Defendant also challenges the wiretap orders entered in
this case because they permitted interception twenty-four hours
a day, seven days a week. Section 12 of the Act provides that
“[n]o order entered under this section shall authorize the
interception of any wire, electronic or oral communication for a
period of time in excess of that necessary under the
circumstances.” N.J.S.A. 2A:156A-12 (emphasis added). Section
12 also requires that reasonable efforts be made to reduce the
hours of interception, whenever possible -- a mandate referred
34
to as extrinsic minimization. Ibid.; State v. Catania, 85 N.J.
418, 423 (1981).4
The Act does not expressly require “that the hours of
interception be specified in the order.” State v. Dye, 60 N.J.
518, 527 (1972) (citing State v. Christy, 112 N.J. Super. 48,
77-78 (Law Div. 1970)). As then-Judge Handler explained, the
measure in the statute -- “necessary under the circumstances” --
is a “flexible and relative concept” that is infused with
content by other parts of the law. Christy, supra, 112 N.J.
Super. at 59. The phrase is meant to limit wiretapping to the
period of time the “judge determines is required to uncover
incriminating” conversations about “particular criminal
activities and participants. This may require a greater or
lesser time, depending upon all of the circumstances.” Ibid.
Because the phrase suggests a limit on the number of hours,
it is preferable to specify the hours of interception in the
order, if possible. See State v. Sidoti, 120 N.J. Super. 208,
213 (App. Div. 1972); Christy, supra, 112 N.J. Super. at 78.
The decision is left to the reasonable discretion of the wiretap
4 The Wiretap Act also requires “intrinsic” minimization:
terminating the interception of individual non-relevant phone
calls “as it becomes apparent to the monitors that the call is
not relevant to the investigation.” Catania, supra, 85 N.J. at
429.
35
judge and is reviewed for abuse of discretion. Dye, supra, 60
N.J. at 527-28.
Certain types of criminal activity defy specificity. In
Sidoti, supra, for example, the Appellate Division explained
that “bookmaking is a continuing operation, carried on with a
myriad of persons.” 120 N.J. Super. at 213. Although it would
be “desirable for an order to” specify what hours “the tap
should last,” the panel noted that bookmaking resists that type
of specificity. Ibid. The court explained that, “absent the
ability to be more specific,” wiretap orders that do not state
the hours of interception but otherwise provide for minimization
can be valid. Id. at 213-14.
In State v. Pemberthy, 224 N.J. Super. 280, 299 (App.
Div.), certif. denied, 111 N.J. 633 (1988), the Appellate
Division held that the reasoning in Sidoti extended to a
conspiracy to import and distribute narcotics. The order in
Pemberthy permitted 24/7 surveillance for a conspiracy that
involved “day-to-day dealings with drug shipments, and making
arrangements for transportation which involved various family
members.” Ibid. Although the State attempted to limit the
actual hours of interception, it noted the likelihood that calls
would be placed outside those hours to arrange drug shipments.
Ibid. Under the circumstances, the panel concluded that greater
36
“specificity of hours” in the order was “neither required nor
reasonable.” Ibid.
Here, there was no abuse of discretion. The court’s orders
allowed interception twenty-four hours a day, seven days a week,
but, consistent with section 12, directed the Task Force to make
reasonable efforts to reduce those hours whenever possible. The
Task Force repeatedly represented that it would initially
intercept calls during more limited hours. Starting with the
first application for 5WT, the Task Force stated that it planned
to intercept calls from 9:00 a.m. to 1:00 a.m. The application
also explained that “certain events could occur (i.e. an
impending shipment of CDS, gathering of money, problems at an
open air drug distribution location, etc.) that would generate
telephone calls at any time during the day or night.”
The wiretap judge found that, “[d]ue to the extent of the
target’s” large-scale narcotics ring, “it was expected that the
CDS transactions could occur at random times at diverse hours of
the day and night.” Despite plans to limit interception “to a
specific window of time,” the judge observed that “it quickly
became apparent that the targets conducted sales of CDS at
unpredictable times, most occurring outside the given window.”
Under the circumstances, we cannot find that it was an
abuse of direction to allow 24/7 monitoring in this
investigation. We recognize that the nature of a large-scale
37
narcotics distribution ring may involve unpredictable hours that
can justify 24/7 interception in certain cases. Still, the
preferred practice is to specify more limited hours of
interception in a wiretap order whenever possible. See Sidoti,
supra, 120 N.J. Super. at 213; Christy, supra, 112 N.J. Super.
at 78.
V.
Finally, defendant claims that the State did not present
sufficient evidence before the grand jury to support the charge
that he was a leader of a narcotics trafficking network,
contrary to N.J.S.A. 2C:35-3. Based on our review of the
record, we do not agree.
An indictment is presumed valid and should only be
dismissed if it is “manifestly deficient or palpably defective.”
State v. Hogan, 144 N.J. 216, 229 (1996). A motion to dismiss
is addressed to the discretion of the trial court, State v.
McCrary, 97 N.J. 132, 144 (1984), and that discretion should not
be exercised except for “the clearest and plainest ground,”
State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984) (citations
omitted).
At the grand jury stage, the State is not required to
present enough evidence to sustain a conviction. Id. at 27. As
long as the State presents “some evidence establishing each
element of the crime to make out a prima facie case,” a trial
38
court should not dismiss an indictment. State v. Saavedra, 222
N.J. 39, 57 (2015) (quoting State v. Morrison, 188 N.J. 2, 12
(2006)). In a nutshell, a court examining a grand jury record
should determine whether, “viewing the evidence and the rational
inferences drawn from that evidence in the light most favorable
to the State, a grand jury could reasonably believe that a crime
occurred and that the defendant committed it.” Morrison, supra,
188 N.J. at 13.
N.J.S.A. 2C:35-3 provides as follows:
A person is a leader of a narcotics
trafficking network if he conspires with two
or more other persons in a scheme or course of
conduct to unlawfully manufacture,
distribute, dispense, bring into or transport
in this State . . . any controlled dangerous
substance classified in Schedule I or II . .
. as a financier, or as an organizer,
supervisor or manager of at least one other
person.
The State, therefore, needed to present “some evidence” of each
of the following elements to establish a prima facie case:
(1) that defendant conspired with two or more
persons;
(2) that the purpose of the conspiracy
included a scheme or course of conduct to
unlawfully manufacture, distribute, dispense,
bring into, or transport in this State . . .
any controlled dangerous substance classified
in Schedule I or II;
(3) that defendant was a financier or that
defendant was an organizer, supervisor or
manager of at least one other person; and
39
(4) that defendant occupied a high-level
position in the conspiracy.
[See N.J.S.A. 2C:35-3; Model Jury Charges
(Criminal), “Leader of Narcotics Trafficking
Network” (Oct. 23, 2000); see also State v.
Afanador, 151 N.J. 41, 54-55 (1997)
(interpreting prior version of statute); State
v. Alexander, 136 N.J. 563, 568, 570-71 (1994)
(same).]5
The trial judge carefully reviewed the grand jury record
and found that the State presented ample evidence to support
each element of the offense. As to the first element, the trial
court found that defendant conspired with “numerous persons,”
including Cuevas, Kearny, Carmichael, Cordero, defendant’s
supplier in New York, and others. For the second element, the
trial court recounted “substantial evidence” of a conspiracy to
distribute heroin, ecstasy, marijuana, and cocaine, and to bring
into or transport heroin into New Jersey. For the third and
fourth elements, the judge reviewed Investigator Dunlap’s grand
jury testimony to show that defendant was either a financier or
an organizer, supervisor or manager of at least one other
person, and that he occupied a high-level position in the
conspiracy. The court cited evidence that defendant, as a
financier, purchased drugs up front, delivered them to a drug
set, and received the proceeds once others sold the narcotics.
5 The Model Jury Charge questions whether the fourth element
applies to financiers. See Model Jury Charges (Criminal),
supra, at 3 n.8. We need not address that issue in this case.
40
The court also referred to evidence about how defendant
resupplied a drug set. In addition, the trial judge cited
multiple examples from the grand jury about how defendant
managed the supply operations and directed other members of the
conspiracy. Among other passages, the court cited testimony in
which defendant instructed Carmichael to rent cars to travel to
New York and purchase drugs; discussed staffing a set and
posting bail for a member who had been arrested; discussed the
source of drugs to be supplied to various sets; directed Kearny
to recruit bulk heroin buyers who previously bought from a
dealer who had been arrested; and supplied packaged heroin to
several drug sets in Camden. Like the Appellate Division, we
agree that there was ample evidence before the grand jury to
show that defendant was a leader of a narcotics network.
State v. Ellis, 424 N.J. Super. 267 (App. Div. 2012), on
which defendant relies, is distinguishable. The defendant in
Ellis “engaged in six drug transactions with an undercover
police officer [in an eleven-week period] wherein a total of
less than $2,000 was exchanged for over one-half ounce of
cocaine and .29 grams of heroin.” Id. at 270. The defendant
sent others to complete two of the transactions. Ibid. The
panel held that the proofs did not establish the elements of a
leader of a narcotics trafficking network charge and vacated
that conviction. Id. at 278. Defendant Feliciano’s high-level
41
role in a broad-ranging, extended narcotics conspiracy went well
beyond the evidence presented in Ellis.
VI.
For the reasons stated above, we modify and affirm the
judgment of the Appellate Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON, and
JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s
opinion. JUSTICE FERNANDEZ-VINA did not participate.
42
SUPREME COURT OF NEW JERSEY
NO. A-24 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR FELICIANO (a/k/a HECTOR FELECIANO),
Defendant-Appellant.
DECIDED March 9, 2016
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM AS
CHECKLIST
MODIFIED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -----------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6