State v. Edward Ronald Ates (070926) , 217 N.J. 253 ( 2014 )

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. Edward Ronald Ates (A-52-12) (070926)
Argued February 4, 2014 -- Decided March 18, 2014
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers whether the New Jersey Wiretapping and Electronic Surveillance
Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37, is unconstitutional because it allows law enforcement
officers in New Jersey to intercept conversations between individuals located outside of New Jersey.
Defendant Edward Ronald Ates, who lived in Florida and had family in Florida and Louisiana, was arrested
and charged with the murder of his former son-in-law in Ramsey, New Jersey. As part of the criminal investigation,
a New Jersey wiretap judge authorized wiretaps on six telephone numbers assigned to and known to be used by
defendant and his family members. The telephone numbers consisted of five cell phones and one landline phone.
Law enforcement officers monitored all of the wiretaps from New Jersey. Prior to trial, defendant moved to
suppress conversations that involved himself, a Florida resident, his wife, another Florida resident, his mother, a
Louisiana resident, and his sister, who lived in both Florida and Louisiana. Defendant claimed that the wiretap
orders were “extraterritorial” and that New Jersey officials should have asked the proper authorities in Florida and
Louisiana to consent to the wiretaps. Defendant also asserted that the Wiretap Act should be declared
unconstitutional because it permits New Jersey authorities to act outside their jurisdiction and wiretap individuals
with no connection to New Jersey. The trial court denied the motion, concluding that the Act constitutionally
permits intercepting and monitoring out-of-state communications in New Jersey. The jury found defendant guilty.
The Appellate Division affirmed defendant’s conviction. State v. Ates, 426 N.J. Super. 521 (App. Div.
2012). The panel rejected defendant’s argument about the Act’s “extraterritorial” reach and noted that the statute
“requires a nexus with New Jersey by insisting that, at the very least, the listening post be located in New Jersey.”
Id. at 533. The panel observed, “this does not ‘usurp [f]ederal authority’ because federal law permits the same
thing.” Ibid. The panel also rejected defendant’s other arguments: that the trial court imposed an inadequate
remedy for the State’s unlawful interception of an attorney-client conversation; that the prosecutor made improper
remarks during summation about a defense medical expert; that it was prejudicial error to admit in evidence a
reenactment of a drive from New Jersey to Louisiana; and that the cumulative effect of the above errors required
reversal. Id. at 531, 534-38. The Court granted defendant’s petition for certification. 213 N.J. 389 (2013).
HELD: New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s
focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it
impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents
could only rely on orders issued in the state where a call was placed or received.
1. The United States and New Jersey Constitutions’ protections against unreasonable searches and seizures extend
to the interception of phone conversations. In 1967, the United States Supreme Court issued two landmark opinions
that addressed electronic surveillance of phone conversations under the Fourth Amendment and outlined principles
to safeguard individual privacy rights in that area. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United
States, 389 U.S. 347 (1967). Congress responded the following year by enacting Title III of the Omnibus Crime and
Safe Streets Act, 18 U.S.C.A. §§ 2510–2520, which established minimum standards for federal and state law
enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. In 1968, the
New Jersey Legislature enacted the Wiretap Act and modeled it after Title III. (pp. 15-16)
2. The Wiretap Act empowers the State to apply to a judge for an order authorizing law enforcement officers, who
are investigating particular crimes, to intercept wire, electronic, and oral communications. N.J.S.A. 2A:156A-8.
Before judges can enter a wiretap order, they must find probable cause to believe (1) that a listed, serious offense
under New Jersey law has been, is being, or will be committed; (2) that communications about the criminal activity
in New Jersey may be obtained through the interception; and (3) that normal investigative procedures have failed,
are unlikely to succeed, or are too dangerous. N.J.S.A. 2A:156A-10a-c. An “intercept” is “the aural or other
acquisition of the contents of any wire, electronic or oral communication through the use of any electronic,
mechanical, or other device.” N.J.S.A. 2A:156A-2c. A wiretap order “may be executed at any point of interception
within the jurisdiction of an investigative or law enforcement officer executing the order.” N.J.S.A. 2A:156A-12h.
A “point of interception” is the site where the “officer is located at the time the interception is made” -- commonly
referred to as the “listening post.” N.J.S.A. 2A:156A-2v. The plain language of the Wiretap Act thus authorizes
investigators to intercept out-of-state calls at a listening post in New Jersey. (pp 16-18)
3. Because the State can only prosecute crimes that occur within its territorial borders, the first two findings that a
judge must make before issuing a wiretap order connect the interception of communications to activity in New
Jersey. See N.J.S.A. 2A:156A-10a-b. In addition, the Act requires that the listening post be located within New
Jersey. See N.J.S.A. 2A:156A-12h. Therefore, the Wiretap Act does not unconstitutionally permit the interception
of communications with no connection to New Jersey. (pp. 19-20)
4. Because the Wiretap Act is closely modeled after Title III, the Court gives careful consideration to federal
decisions interpreting the federal statute. Federal circuit courts have consistently upheld wiretaps based on the
location of the listening post, and no circuit court has found Title III unconstitutional on that ground. For example, in
United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert. denied, 506 U.S. 847 (1992), the Second Circuit found that
because Title III defines interception as the “aural” acquisition of the contents of the call, and because “aural,” by
definition, “‘pertain[s] to the ear or the sense of hearing,’” the place of interception could be where the police first
monitored or listened to the communication. Id. at 136. (citation omitted). The court in Rodriguez also noted that
allowing a court where the listening post is located to authorize wiretaps in multiple jurisdictions helps protect
individual privacy rights by avoiding unnecessary or unnecessarily long interceptions. Id. (citations omitted). Other
federal courts have followed Rodriguez and held that judges can authorize wiretaps when the listening post -- and
thus the interception -- is within the court’s jurisdiction, even if the phone is located elsewhere. The majority of
courts that have interpreted state wiretap laws also agree. For example, in Davis v. State, 43 A.3d 1044 (Md. 2012),
Maryland’s highest court upheld a wiretap order allowing officials in Maryland to monitor a cell phone located in
Virginia, finding that if the listening post is located within the wiretap court’s territorial jurisdiction, then “neither the
physical location of the mobile phone at the time the call was placed” nor “the recipient of the call are material.” Id.
at 1048. The Maryland court also noted that a different outcome would present “an enormous logistical and
technological challenge to law enforcement” officials if an investigation involved a cell phone that crossed state lines.
Id. at 1054. The Court agrees with the many federal and state courts that have allowed judges in the state where the
listening post is located to authorize a wiretap. (pp. 20-25)
5. Drawing an analogy to the requirements for searching a home, defendant contends that law enforcement officers
must seek a search warrant from a judge in the state where the phones are located. There are obvious differences
between searching a fixed location, like a home, and intercepting a phone call on a mobile phone. If out-of-state
intercepts could only be authorized by a judge in the jurisdiction where the phones are located, then the inherent
mobility of the modern cell phone could defeat even the most responsible efforts to monitor it. In short, defendant’s
reading of the Act would make it impractical to intercept cell phone conversations. Viewed in that light, the Act’s
definition of “point of interception” -- the site where an officer is located when an interception is made, N.J.S.A.
2A:156A-2v -- makes rational sense. In addition, defendant’s privacy rights were not violated because a New Jersey
judge, rather than judges in the states where the phones were located, reviewed his wiretap applications. Defendant’s
rights would be protected if the applications were reviewed in New Jersey, Florida, or Louisiana because judges in
each state must ensure that there is an adequate basis for issuing a wiretap order. At a minimum, the applications
would have to meet the requirements of Title III. (pp. 25-27)
6. As to defendant’s several other challenges, the Court affirms substantially for the reasons stated in the Appellate
Division’s opinion. Ates, 426 N.J. Super. at 534-38. (pp. 27-28)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-52 September Term 2012
070926
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD RONALD ATES a/k/a RON
WAVERLY,
Defendant-Appellant.
Argued February 4, 2014 – Decided March 18, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 521 (2012).
Walter A. Lesnevich argued the cause for
appellant (Lesnevich & Marzano-Lesnevich,
attorneys; Mr. Lesnevich and Michael R.
Mildner, on the brief).
Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney).
Daniel I. Bornstein, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this appeal, defendant Edward Ates challenges the
constitutionality of the New Jersey Wiretapping and Electronic
Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-
1
1 to -37. Defendant is serving a life sentence for the murder
of his former son-in-law in Ramsey, New Jersey. During the
investigation of the crime, law enforcement officials obtained
court orders to intercept communications over various phones.
Among the calls the State intercepted were conversations between
speakers located outside of New Jersey, in Louisiana and
Florida. Defendant argues that allowing investigators in New
Jersey to intercept conversations between out-of-state parties
violated his constitutional rights.
The plain language of the Wiretap Act authorizes officials
to execute a wiretap order at any “point of interception” within
the investigators’ jurisdiction -- the place in New Jersey where
officials hear and monitor a conversation for the first time.
See N.J.S.A. 2A:156A-12h, -2v. The Act also requires that a
judge find there is probable cause to believe that a serious
crime was committed in New Jersey, and that particular
communications about that New Jersey offense may be obtained
through the interception. N.J.S.A. 2A:156A-10a-b. In those
ways, the Act requires a direct connection to New Jersey.
Various federal and state court decisions have interpreted
similar statutes and upheld them in the face of parallel
challenges. So long as the listening post is within the court’s
jurisdiction, courts have rejected claims to suppress recorded
conversations that took place out-of-state.
2
In connection with defendant’s challenge, we find that New
Jersey’s Wiretap Act is constitutional. We also note that the
Legislature’s focus on the “point of interception” is a rational
approach in the age of cell phones. Because of the inherent
mobility of cell phones, it would be impractical, if not
impossible in some instances, for law enforcement to intercept
cell phone conversations if agents could only rely on orders
issued in the state where a call was placed or received. Under
that type of scheme, a court order would lose its force as soon
as a target crossed state lines with a cell phone in hand.
Both the trial court and Appellate Division rejected
defendant’s constitutional claim. We agree and affirm. We also
affirm the judgment of the Appellate Division as to several
other claims defendant raised.
I.
A.
We rely on the testimony at defendant’s trial for the
following facts. On August 23, 2006, Paul Duncsak was fatally
shot inside his home in Ramsey. Various circumstances and
events led to defendant’s arrest for Paul’s murder. (For ease
of reference, we use first names throughout this opinion.)
Defendant’s daughter Stacey married Paul in 1999, and the
couple had two children. Paul and Stacey divorced in 2003. As
part of a custody dispute, the Family Court granted them joint
3
custody of the children and named Paul the parent of principal
residence. In other words, the children lived with Paul. Under
a settlement agreement, Paul kept the family home in Ramsey, and
Stacey moved to a condominium.
Paul met Lori Adamo-Gervasi in 2005, and the two became
engaged the following year. They decided that Lori would move
into Paul’s house in Ramsey on August 24, 2006. In the weeks
leading up to that date, Paul stayed at Lori’s home but stopped
by the house in Ramsey each night to check emails and feed his
parrot.
Stacey, meanwhile, was unemployed and experienced financial
difficulties after the divorce. Stacey’s parents, defendant and
Dottie Ates, lived in a mobile home in Fort Pierce, Florida.
They parked their recreational vehicle on property owned by
Evelyn Walker, their other daughter. Evelyn lived in a house on
the property, which had a home office, and defendant often used
the computers in the office.
In the weeks before Paul’s murder, defendant traveled
extensively up north. He and Dottie drove from Florida to
Pennsylvania in August 2006. On August 14, they checked into a
campground for recreational vehicles in Kutztown, Pennsylvania,
using the alias “Ron Waverly.” They then rented a Dodge Durango
in Dottie’s name from a nearby car rental agency, with an option
to drive to New Jersey. By the next day, they had driven nearly
4
440 miles. Their travels included a trip to Ramsey where a
police officer made note of the Durango during a routine license
plate check. On August 15, they returned the Durango to the
rental agency and asked for a car with better gas mileage. This
time, they rented a Hyundai Sonata and again noted that they
planned to drive to New Jersey. They drove almost 1000 miles
before returning the car on August 18.
On August 23, the day Paul was murdered, Lori visited the
Ramsey house with a close friend to show her where she would
soon be living. Although it was very warm in the house, they
did not turn on the air conditioning. As Lori gave a tour of
the house, she noticed certain things that she considered very
unusual: a door to the furnace room, normally kept open for
ventilation, was closed; a bathroom door was locked shut; and a
Burger King wrapper had been left on the back porch.
Later in the afternoon, a neighbor’s son drove past Paul’s
house and spotted a blue Ford Explorer parked on the apron of
the driveway. At the time, Stacey drove a dark blue Ford
Explorer.
Paul called Lori at about 6:20 p.m. to relay that he was
driving home to feed the parrot. Paul and Lori stayed on the
phone as he pulled into the driveway and got out of the car.
Paul made a comment about the Burger King wrapper and told Lori
that she must have left him a present. Once inside the house,
5
Paul added that Lori had left the air conditioning on. Paul
suddenly screamed, “oh, oh no,” and then stopped speaking; Lori
heard the parrot screech in the background and also heard a
thud, “like a falling sound.” Lori called Paul’s name, but he
did not answer. She did not hear any gunfire and dialed 9-1-1.
The police arrived soon after and found Paul’s body in a
pool of blood. He had been shot at close range at least seven
times with bullets fired from a .22 caliber weapon. The police
inspected the house to make sure that the shooter was not
inside. An officer noticed that the French doors leading from
the bedroom to the back deck were unlocked. An examination of
the locks on the doors revealed that they had been picked in an
aggressive manner.
Hours after the shooting, beginning at around 3:30 a.m.,
Detective John Haviland tried to contact defendant at his home
and cell phone numbers. After an hour, he reached Dottie who
told him that defendant was in Louisiana visiting his sick
mother, Myra. Defendant left a voicemail message for the
Detective at 6:45 p.m. on August 24, and the two spoke later
that evening. Defendant said he left Florida on August 20,
arrived in Louisiana two days later in the evening, and was at
his mother’s home, in Sibley, Louisiana, when Paul was killed.
Defendant could not document his trip because he claimed he had
paid all his expenses in cash, slept in his car, and left his
6
cell phone behind. Myra also told the police that defendant had
arrived in Louisiana on August 22.
Defendant’s sister, Brenda, lived with Myra. She had not
seen her brother at any time from August 20 through 23. Dottie
called Brenda on August 24 and told her that if a strange man
were to call and ask, Brenda should say that defendant was in
Louisiana on August 22. Defendant made a similar request. At
first, Brenda confirmed defendant’s story, but she eventually
admitted to the police that defendant arrived in Louisiana on
August 24 and that she had lied when she said he arrived
earlier.
Pursuant to a search warrant, law enforcement officers
seized and examined computers from Evelyn’s home office in
Florida. Forensic tests revealed that someone had used one of
the computers to search the Internet for “how to commit the
perfect murder.” One article that was accessed suggested using
a .22 caliber weapon and an alias while traveling. Another
search turned up articles on how to pick a lock. Yet another
uncovered results about silencers. The police learned that an
order for a lock-picking kit and instruction book had been
placed online and shipped to “E. Ates” at defendant’s Florida
address. In addition, defendant ordered two books online, from
Amazon, under his own name: Workbench Silencers: The Art of
Improvised Designs and More Workbench Silencers.
7
B.
At the center of this appeal are certain wiretap orders.
In a series of orders entered in September and October 2006, the
Honorable Marilyn C. Clark, P.J.S.C., a designated wiretap
judge, authorized the interception of telephone communications
of defendant, Dottie, Stacey, and others. Specifically, Judge
Clark authorized wiretaps on six telephone numbers: (201) 575-
xxxx, a cell phone assigned to Stacey; (201) 962-xxxx, a
landline phone assigned to Stacey; (772) 519-xxxx, a cell phone
registered to Evelyn but known to be used by defendant and
Dottie; (201) 248-xxxx, a prepaid cell phone known to be used by
defendant and Dottie; (772) 940-xxxx, a prepaid cell phone known
to be used by defendant; and (318) 205-xxxx, a cell phone
assigned to Brenda and known to be used by Brenda and Myra. Law
enforcement officers monitored all of the wiretaps in New
Jersey.
C.
On September 28, 2007, a Bergen County Grand Jury indicted
defendant and charged him with first-degree murder, N.J.S.A.
2C:11-3a(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-
3a(3); second-degree burglary, N.J.S.A. 2C:18-2; second-degree
possession of a weapon, a .22 caliber firearm, for an unlawful
purpose, N.J.S.A. 2C:39-4a; third-degree possession of a firearm
without a permit, N.J.S.A. 2C:39-5b; third-degree conspiracy to
8
hinder apprehension, N.J.S.A. 2C:5-2; fourth-degree obstructing
the administration of law, N.J.S.A. 2C:29-1; and third-degree
witness tampering, N.J.S.A. 2C:28-5a.1
Prior to trial, defendant moved to suppress conversations
intercepted between individuals outside New Jersey. In
particular, he sought to exclude conversations that involved
himself, a resident of Florida, Dottie, another Florida
resident, Myra, a Louisiana resident, and Brenda, who lived in
both Florida and Louisiana. Defendant claimed that the orders
were “extraterritorial” and that New Jersey officials should
have asked the proper authorities in Florida and Louisiana to
consent to the wiretaps. Defendant also asserted that the
Wiretap Act should be declared unconstitutional because it
permits New Jersey authorities to act outside their jurisdiction
and wiretap individuals with no connection to New Jersey.
The Honorable Harry G. Carroll, P.J.S.C., denied the
motion. He found that the wiretap orders Judge Clark entered
were valid and that the Act was not violated by intercepting and
monitoring out-of-state communications in New Jersey. Judge
Carroll also concluded that the Wiretap Act was constitutional.
Among other points, he observed that New Jersey has a
1
The indictment also charged Dottie, Brenda, and Myra with
conspiracy, hindering apprehension, and obstruction. Dottie was
also charged with witness tampering.
9
substantial interest in the investigation and prosecution of a
murder committed within its borders.
Judge Carroll did find that law enforcement officials
improperly intercepted one privileged telephone conversation
between defendant and his attorney. The trial court noted that
the recording “was not done intentionally but rather was
inadvertent,” and that there was “no evidence” that anyone in
the Bergen County Prosecutor’s Office listened to the
conversation. The court found it “even more troubling” that,
although the officer on duty reported the mistaken interception
to his supervisors, no one promptly reported the matter to the
wiretap judge -- as they should have. In addition, the State
disclosed hundreds of recorded calls on eighty compact discs in
discovery but did not apprise defendant of the violation -- as
it should have.
Judge Carroll suppressed the privileged call, “the entire
contents of all intercepted communications obtained thereafter,”
and “any evidence derived from those intercepted
communications.” He did not grant defendant’s request to
dismiss the indictment.
The trial lasted about twenty days that spanned from
September 23 through November 6, 2009. As part of the defense
case, defendant testified and denied the charges. The jury
found him guilty on all counts. After merging various counts,
10
the trial court sentenced defendant on the first-degree murder
count to life imprisonment subject to a period of 63.75 years of
parole ineligibility. The court imposed a consecutive five-year
term for witness tampering, as well as other concurrent
sentences.
Defendant appealed and renewed his argument that the
Wiretap Act is unconstitutional. In a published opinion, the
Appellate Division affirmed his conviction. State v. Ates, 426
N.J. Super. 521, 538 (App. Div. 2012). The appellate panel
rejected defendant’s argument about the Act’s “extraterritorial”
reach and noted that the statute “requires a nexus with New
Jersey by insisting that, at the very least, the listening post
be located in New Jersey.” Id. at 533. As the panel observed,
“this does not ‘usurp [f]ederal authority’ because federal law
permits the same thing.” Ibid.
The panel also rejected defendant’s other arguments: that
the remedy imposed by Judge Carroll for the unlawful
interception of the attorney-client conversation was inadequate;
that the prosecutor’s remarks during summation about a defense
medical expert were improper and prejudiced defendant; that it
was prejudicial error to admit in evidence a reenactment of a
drive from New Jersey to Louisiana; and that the cumulative
effect of the above errors required reversal. Id. at 531, 534-
38.
11
We granted defendant’s petition for certification. 213
N.J. 389 (2013). We also granted the Attorney General leave to
appear as amicus curiae.
II.
Defendant argues that the Wiretap Act is unconstitutional
“because it permits New Jersey law enforcemen[t] officials to
exceed their jurisdiction and intercept phone calls from out of
state individuals who have no connection with New Jersey.” As
applied to this case, he contends that the Act violates both the
federal and state constitutions. He asserts that the law
“eradicates all jurisdictional boundaries between the states”
and “usurps Federal authority.” He also maintains that the
statute enables police officers to exceed the jurisdictional and
territorial limits on their authority. Defendant contends that
just as New Jersey officials are required to enlist the aid of
another state to search an out-of-state home, they should seek a
wiretap order to monitor phone calls between residents of other
states from a judge in those states. Defendant argues that the
Act “creates an artificial New Jersey connection” by defining
the “point of interception” as the location where the
conversation is monitored.
Defendant advances three other arguments as well. First,
he claims that the indictment should have been dismissed because
law enforcement officials illegally intercepted a conversation
12
he had with his attorney and then failed to report the violation
immediately to the wiretap judge. Second, defendant asserts
that the prosecutor improperly commented in summation about the
testimony of a defense medical expert, in a manner that denied
him a fair trial. Third, defendant claims that the trial court
erred when it admitted evidence that a police officer drove from
Ramsey to Sibley, Louisiana in twenty-one hours. Three years
after the murder, a detective drove the route in an effort to
prove that the drive could take less than twenty-four hours.
(Other evidence showed that defendant was with his mother in
Sibley twenty-four hours after the murder.) Defendant argues
that evidence of the reenactment prejudiced him because the
State did not notify him of the drive in advance and waited two
weeks, until the start of jury selection, to disclose the
results.
The State maintains that the Wiretap Act is constitutional
and does not confer extraterritorial powers on New Jersey
officials. It argues that the Act defines the point of
interception as the location of the listening post, and it
asserts that many state and federal courts have upheld similar
statutory language. From a policy standpoint, the State submits
that it is preferable to have a single jurisdiction authorize
and monitor multiple wiretaps to avoid unnecessarily long
periods of interception.
13
The State counters defendant’s other arguments as well. It
argues that the trial court properly declined to dismiss the
case because of the accidental recording of a conversation
between defendant and his attorney, which no one in the Bergen
County Prosecutor’s Office heard. With regard to the
prosecutor’s summation, the State contends that the record fully
supported the prosecutor’s comments, that defendant did not
object at trial, and that the remarks did not prejudice him.
The State also argues that the trial court properly admitted
relevant evidence about the amount of time it took a detective
to drive from Ramsey to Sibley, Louisiana.
The Attorney General entered this case to defend the
constitutionality of the Wiretap Act. The Attorney General
maintains that the Act requires a nexus with New Jersey because
the listening post must be located here; that the law does not
usurp federal authority, which similarly allows for the
interception of calls outside the jurisdiction of a court, so
long as the calls are acquired or monitored in the court’s
jurisdiction; and that federal and state courts have repeatedly
rejected the same jurisdictional arguments that defendant now
raises. In addition, the Attorney General submits that no
legitimate privacy interest would be enhanced if officers had to
seek wiretap orders from every jurisdiction where a target might
14
be expected to travel. That approach, the Attorney General
asserts, would be unreasonable and unsound.
III.
We begin with defendant’s claim that the Wiretap Act is
unconstitutional because it allows law enforcement officers to
intercept conversations between individuals who are out of the
state and have no connection to New Jersey. At oral argument,
defendant claimed that only a judge from the state where an
individual resides can authorize a wiretap. We find no support
for defendant’s arguments and uphold the constitutionality of
the Wiretap Act.
A.
The Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution guard
against unreasonable searches and seizures. U.S. Const. amend.
IV; N.J. Const. art. I, ¶ 7. Both provisions extend to the
interception of phone conversations by law enforcement
officials.
In 1967, the United States Supreme Court issued two
landmark opinions that addressed electronic surveillance of
phone conversations under the Fourth Amendment. See Berger v.
New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967);
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d
576 (1967). The decisions also outlined certain principles to
15
safeguard individual privacy rights in this area. Congress
responded the following year by enacting Title III of the
Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520.
Title III established minimum standards for federal and
state law enforcement officials to follow when seeking to
intercept wire, oral, and electronic communications. 18
U.S.C.A. 2516(2). In 1968, soon after the law was passed, the
New Jersey Legislature enacted the Wiretap Act, N.J.S.A.
2A:156A-1 to -26, and modeled it after Title III. See In re
Wire Commc’n, 76 N.J. 255, 262 (1978); State v. Diaz, 308 N.J.
Super. 504, 509-10 (App. Div. 1998) (citations omitted); State
v. Sanchez, 149 N.J. Super. 381, 394-97 (App. Div. 1977).
We start our analysis with the Act itself. The statute
makes it unlawful for any person to purposely intercept any
wire, electronic, or oral communication. N.J.S.A. 2A:156A-3a.
The law also contains certain exceptions. It expressly empowers
the Attorney General and county prosecutors to apply to a judge
for an order authorizing law enforcement officers, who are
investigating particular crimes, to intercept wire, electronic,
and oral communications. N.J.S.A. 2A:156A-8. The Act lists
those crimes, which include murder, kidnapping, gambling,
robbery, bribery, and other violations of New Jersey’s criminal
code. Ibid. Thus, the Act permits interceptions to investigate
certain types of criminal activity in this State. See State v.
16
Worthy, 141 N.J. 368, 380 (1995); see also N.J.S.A. 2C:1-3a
(providing broad definition of territorial jurisdiction).
A judge must make a number of findings to authorize a
wiretap. In part, the judge must 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; [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.
[N.J.S.A. 2A:156A-10a-c.]
The first two findings require a direct link to New Jersey:
that a listed offense -- that is, a particular offense
punishable in New Jersey -- has been, is being, or will be
committed, and that interception may provide evidence of the New
Jersey crime.
An “intercept” is defined in the Act as “the aural or other
acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical, or
other device.” N.J.S.A. 2A:156A-2c. The Act provides that a
17
wiretap order “may be executed at any point of interception
within the jurisdiction of an investigative or law enforcement
officer executing the order.” N.J.S.A. 2A:156A-12h. Section
2A:156A-2v defines “point of interception” as the site where the
“officer is located at the time the interception is made” --
commonly referred to as the “listening post.” In other words, a
wiretap order signed by a New Jersey judge can empower
investigators located in New Jersey to monitor intercepted
conversations here, even if both parties to the call are outside
the State.
B.
The plain language of the Wiretap Act thus authorizes
investigators to intercept out-of-state calls at a listening
post in New Jersey. By defining “intercept” to include the
“aural acquisition” of a communication, and identifying the
“point of interception” as the listening post, investigators at
a listening post in New Jersey may intercept and hear phone
conversations between individuals located in other states. In
the context of this case, the statute permitted the Bergen
County Prosecutor to apply for a wiretap order in New Jersey and
to execute that order at a point of interception in New Jersey.
The question before the Court, then, is whether the Act is
constitutional.
18
The Wiretap Act must be strictly construed to safeguard an
individual’s right to privacy. See Worthy, supra, 141 N.J. at
379-80 (citing State v. Catania, 85 N.J. 418, 437 (1981); State
v. Cerbo, 78 N.J. 595, 604 (1979); Wire Commc’n, supra, 76 N.J.
at 260). As with any statute, though, we presume the law is
constitutional. State v. One 1990 Honda Accord, 154 N.J. 373,
377 (1998) (citations omitted); State v. Muhammad, 145 N.J. 23,
41 (1996). Defendant must shoulder the burden to overcome that
strong presumption. See Honda Accord, supra, 154 N.J. at 377
(citation omitted).
Defendant contends that the Wiretap Act unconstitutionally
permits New Jersey officials to intercept calls from out-of-
state citizens who have no contact with New Jersey. He argues
that the Act creates an “artificial connection” to New Jersey
with its definition of “point of interception.” We do not agree
with this description of the law. As discussed above, the Act
requires an actual nexus to New Jersey. Before judges can enter
a wiretap order, they must find probable cause to believe (1)
that a listed, serious offense under New Jersey law has been, is
being, or will be committed, and (2) that communications about
the criminal activity in New Jersey may be obtained through the
interception. N.J.S.A. 2A:156A-10a-b.
The State can only prosecute crimes that occur within its
territorial borders. State v. Denofa, 187 N.J. 24, 36 (2006)
19
(citing N.J.S.A. 2C:1-3a(1) (“[A] person may be convicted under
the law of this State of an offense committed by his own conduct
. . . if . . . [e]ither the conduct which is an element of the
offense or the result which is such an element occurs within
this State.”); State v. McDowney, 49 N.J. 471, 474 (1967)). As
a result, the twin findings required under the Act connect the
interception of communications to activity in New Jersey. And,
of course, the Act requires that the listening post be located
“within the jurisdiction” of the law enforcement officer -- that
is, within New Jersey. See N.J.S.A. 2A:156A-12h.
In a related argument, defendant claims that the Act is
unconstitutional because it eradicates all jurisdictional
boundaries and usurps federal authority. We examine this
contention to assess if the law violates the federal or state
constitution.
Federal case law does not support defendant’s position.
Because the Wiretap Act is closely modeled after Title III, we
give careful consideration to federal decisions interpreting the
federal statute. See Wire Commc’n, supra, 76 N.J. at 262; Diaz,
supra, 308 N.J. Super. at 510.
Federal circuit courts have consistently upheld wiretaps
based on the location of the listening post, and no circuit
court has found Title III unconstitutional on that ground. The
Second Circuit, for example, addressed the issue in United
20
States v. Rodriguez, 968 F.2d 130 (2d Cir.) (interpreting 18
U.S.C.A. § 2518(3)), cert. denied, 506 U.S. 847, 113 S. Ct. 139,
121 L. Ed. 2d 92 (1992). In that case, government agents
suspected that individuals sold crack in New York City and
stored the cash proceeds at a restaurant in New Jersey. Id. at
133-34. Pursuant to an order authorized by a federal judge in
New York, the investigators wiretapped four telephones at the
restaurant. Id. at 134.
The defendants challenged the wiretaps on the ground that
the district court in New York did not have jurisdiction to
authorize wiretaps of New Jersey phones. Ibid. The Second
Circuit rejected the argument and upheld the wiretaps. Id. at
133. The panel found that the place of interception could be at
either of two locations: where the tapped phone was located (in
New Jersey), or where the police first monitored or listened to
the communication (in New York). Id. at 136. As to the latter,
the panel explained that Title III defines interception as the
“aural” acquisition of the contents of the call, and because
“aural,” by definition, “‘pertain[s] to the ear or the sense of
hearing,’” the interception also occurs where the call is first
heard. Ibid. (citation omitted).
The court in Rodriguez also found that its approach helped
protect individual privacy rights:
21
[W]here the authorities seek to tap
telephones in more than one jurisdiction and
to monitor them in a single jurisdiction,
there are sound policy reasons for
permitting a court in the jurisdiction where
all of the captured conversations are to be
heard to grant the authorization. One of
the key goals of Title III is the protection
of individual privacy interests from abuse
by law enforcement authorities. For
example, Title III requires that a wiretap
authorization not allow the period of
interception to be “longer than is necessary
to achieve the objective of the
authorization.” If all of the
authorizations are sought from the same
court, there is a better chance that
unnecessary or unnecessarily long
interceptions will be avoided.
[Ibid. (citations omitted).]
Other federal courts have followed Rodriguez and held that
judges can authorize wiretaps when the listening post -- and
thus the interception -- is within the court’s jurisdiction,
even if the phone is located elsewhere. See United States v.
Luong, 471 F.3d 1107, 1109-10 (9th Cir. 2006) (finding that
court in Northern District of California, where listening post
was located, had authority to issue wiretap order for mobile
phone subscribed to billing address in Eastern District), cert.
denied, 552 U.S. 1009, 128 S. Ct. 531, 169 L. Ed. 2d 371 (2007);
United States v. Denman, 100 F.3d 399, 403-04 (5th Cir. 1996)
(finding that court in Eastern District of Texas, where
listening post was located, had authority to issue wiretap order
for telephones located in Southern District), cert. denied, 520
22
U.S. 1121, 117 S. Ct. 1256, 137 L. Ed. 2d 336 (1997); United
States v. Giampa, 904 F. Supp. 235, 278 (D.N.J. 1995) (finding
that federal judge in New Jersey, where listening post was
located, had authority to issue wiretap order for telephone in
Southern District of New York), aff’d, 107 F.3d 9 (3d Cir.
1997); United States v. Burford, 755 F. Supp. 607, 610 (S.D.N.Y.
1991) (rejecting constitutional and statutory challenges and
finding that federal judge in New York, where listening post was
located, had authority to issue wiretap order for telephone in
Maryland), aff’d, 986 F.2d 501 (2d Cir. 1992); see also United
States v. Ramirez, 112 F.3d 849, 852-53 (7th Cir.) (finding
interception of cell phone valid under federal law regardless of
where phone or listening post is located), cert. denied, 522
U.S. 892, 118 S. Ct. 232, 139 L. Ed. 2d 163 (1997).
State courts have taken a similar approach. In Davis v.
State, 43 A.3d 1044, 1055 (Md. 2012), Maryland’s highest court
upheld a wiretap order issued by a Maryland judge for a cell
phone registered to a Virginia address. During the period of
interception, the phone was in Virginia, but detectives
monitored calls from Maryland. Id. at 1050. Relying on the
language and history of the Maryland statute as well as federal
case law interpreting Title III, the Davis court held that
“interception” of a communication “occurs where law enforcement
officers capture or redirect . . . the contents of the
23
communication” and “originally” hear it. Id. at 1048. If the
listening post is located within the wiretap court’s territorial
jurisdiction, then “neither the physical location of the mobile
phone at the time the call was placed” nor “the recipient of the
call are material.” Ibid. The Maryland court also noted that a
different outcome would present “an enormous logistical and
technological challenge to law enforcement” officials if an
investigation involved a cell phone that crossed state lines.
Id. at 1054.
The majority of courts that have interpreted state wiretap
laws agree. See United States v. Tavarez, 40 F.3d 1136, 1138
(10th Cir. 1994) (interpreting Oklahoma law to allow district
attorney for Judicial District 21, where listening post was
located, to apply for wiretap order for telephones in District
19); State v. McCormick, 719 So. 2d 1220, 1223 (Fla. App. 1998)
(finding that Melbourne police officer had authority under
Florida law to seek wiretap order for cell phone subscribed to
resident of Merritt Island because listening post was in
Melbourne), review denied sub nom. Mitchell v. State, 732 So. 2d
327 (Fla. 1999); see also Luangkhot v. State, 736 S.E.2d 397,
427 (Ga. 2013) (holding that judges have authority under state
law to issue wiretap warrants if tapped phone or listening post
is located in judicial circuit); but see Castillo v. State, 810
S.W.2d 180, 184 (Tex. Crim. App. 1990) (holding under Texas law
24
that interception occurs where wiretap device, not listening
post, is located). Aside from the Appellate Division’s ruling
in this case, there do not appear to be any reported decisions
in New Jersey which directly address defendant’s argument.
In support of his constitutional claim, defendant draws an
analogy to the search of a home. He contends that because law
enforcement officers must seek a search warrant from a judge in
the state where a residence is located, they should be required
to follow the same approach to intercept phone calls between
out-of-state parties. In this case, he argues that only a judge
in Florida or Louisiana could authorize officers to intercept
calls in those states.
There are obvious differences between searching a fixed
location, like a home, and intercepting a phone call on a mobile
phone. As the court in Burford noted, “[s]earch warrants are
issued to permit seizure of tangible physical evidence which is,
by definition, in only one location. Wiretaps, in contrast,
involve seizure of transitory intangible evidence.” Burford,
supra, 755 F. Supp. at 611.
That distinction presents real, practical concerns. If
out-of-state intercepts could only be authorized by a judge in
the jurisdiction where the phones are located, how could
officers lawfully intercept cell phone calls? Suppose a judge
in one state issued a wiretap order, and the cell phone user
25
crossed the state’s border. Would another warrant, signed by a
judge in the neighboring state, be needed? See Davis, supra, 43
A.3d at 1054. Would law enforcement officers be expected to
obtain multiple warrants for the same phone in advance? How
would they know where a target might travel and where a call
would be made from or received? The inherent mobility of the
modern cell phone could defeat even the most responsible efforts
to monitor it. In short, defendant’s reading of the Act would
make it impractical to intercept cell phone conversations.
Viewed in that light, the Act’s definition of “point of
interception” -- the site where an officer is located when an
interception is made, N.J.S.A. 2A:156A-2v -- makes rational
sense.
At the heart of defendant’s argument is the notion that his
constitutional right to privacy entitles him to have a judge in
the state where he resides, Florida, sign a wiretap order for
his cell phone, rather than a judge in New Jersey, where the
wiretap order is executed. But defendant does not provide any
factual or legal basis to explain why his privacy rights were
violated when a New Jersey judge reviewed a wiretap application
for his phone.
The decisions discussed above correctly concluded that
courts in different states -- where the phone is located and
where it is first monitored -- can issue a wiretap order. See,
26
e.g., Rodriguez, supra, 968 F.2d at 136. Judges in both states
would have to ensure that the prosecutor provided an adequate
basis for an order. At a minimum, the application would have to
meet the requirements of Title III. See 18 U.S.C.A. § 2516(2);
United States v. Marion, 535 F.2d 697, 702 n.9 (2d Cir. 1976);
Commonwealth v. Vitello, 327 N.E.2d 819, 833-34 (Mass. 1975)
(citations omitted). In other words, judges in both states
would have to make the necessary probable-cause findings
designed to protect an individual’s privacy rights. See Worthy,
supra, 141 N.J. at 379-80 (citations omitted). In New Jersey,
Florida, or Louisiana, which all have a connection to the
intercepted communications in this case, defendant’s Fourth
Amendment rights would be protected.
We agree with the many federal and state courts that have
allowed judges in the state where the listening post is located
to authorize a wiretap. We conclude that the Wiretap Act is
constitutional under both the federal and state constitutions.
IV.
Defendant raises several other challenges as well. He
claims that the trial court’s remedy for the unlawful, albeit
inadvertent, interception of a privileged communication was
inadequate; that the prosecutor’s summation was improper; and
that the court erred by admitting evidence of a reenactment of a
drive from New Jersey to Louisiana. As to each of those points,
27
we affirm substantially for the reasons stated in Judge Fisher’s
thoughtful opinion. Ates, supra, 426 N.J. Super. at 534-38.
V.
For the reasons stated above, we affirm the judgment of the
Appellate Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in CHIEF JUSTICE RABNER’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-52 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD RONALD ATES a/k/a RON
WAVERLY,
Defendant-Appellant.
DECIDED March 18, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7