State v. Minter

The majority opinion was delivered by

FURMAN, P.J.A.D.

Defendant was convicted of conspiracy to distribute cocaine, N.J.S.A. 24:21-19(a)(1); 24:21-24 and 2C:5-2, following a jury trial. The jury acquitted him of distribution of cocaine. On appeal defendant argues that the admission against him of two electronically intercepted and taped telephone conversations in which he participated violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., and was reversible error. We affirm.

The issue is novel in this State under the factual circumstances that the electronic intercept was by Federal drug enforcement agents in another State, Pennsylvania, with the consent of an individual cooperating with the Federal authorities, who placed the telephone calls to defendant in his office in Trenton, New Jersey.

Jackie Ellis had been an informant for the Trenton Police Department for about five years. He was introduced by a Trenton Police Detective to two Federal Special Agents working out of Philadelphia. As part of an ongoing narcotics investigation, Federal Special Agent Burns asked Ellis to arrange to purchase narcotics from defendant. Ellis agreed. He had known defendant for several years since playing as a musician at a night club owned by defendant in Pennsylvania. The two intercepted telephone calls, tapes of which were admitted into evidence, ensued. Burns used an intercepting device and a tape recorder. The Federal investigation was abandoned and the tapes turned over to State authorities. Ellis testified at trial to details of narcotics transactions with defendant, including the substance of the two intercepted telephone conversations about cocaine purchases.

Defendant’s argument is statutory, not constitutional. He concedes that the consensual interceptions of his telephone conversations with Ellis were in compliance with the Federal wiretap law, 18 U.S.C. § 2511(2)(c), and did not offend the Fourth Amendment to the United States Constitution. He does not maintain a State constitutional challenge. The Legislature, prior to 1975, recognized the legality of all intercepted wire communications by a person “acting under color of law ... where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

It is the 1975 amendment to the State wiretap law upon which defendant relies. That amendment, N.J.S.A. 2A:156A-4(c) provides:

It shall not be unlawful under this act for:

c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made unless the Attorney General or his designee or a county prosecutor within his authority determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception;

“Investigative or law enforcement officer” is defined in N.J.S.A. 2A:156-2(f) as an officer of the State of New Jersey or of any political subdivision with authority to conduct investigations or to make arrests for various offenses enumerated in the act, including violations of the Controlled Dangerous Substances Act, N.J.S.A. 24:21-19.

Under N.J.S.A. 2A:156A-21, communications which are “unlawfully intercepted” are subject to be suppressed from evidence in this State. Defendant urges that all consensual interceptions at the direction of an investigative or law enforcement officer of any jurisdiction are unlawful and inadmissible in evidence unless the Attorney General, his designee or a county prosecutor has reached a determination of “reasonable suspicion that evidence of criminal conduct will be derived.” Defendant’s argument is based upon his construction of N.J.S.A. 2A:156A-3, which proscribes as a misdemeanor the willful interception of a wire communication “[e]xcept as otherwise specifically provided in this act.”

We reject that argument. Defendant would vest legislation of this State with extraterritorial effect, making it unlawful and criminal in New Jersey for Federal agents, acting within their Federal statutory authority, to place an intercepting device on a telephone in another State with the consent of the person making the call. The New Jersey wiretap act proscription of unlawful interceptions of wire communications as criminal offenses should be limited to this State. See 1 Wharton’s Criminal Law (14 ed. Torcia 1978), § 14. Only unlawful interceptions, as defined in the act, are subject to suppression from evidence under N.J.S.A. 2A:156A-21. We cannot construe N.J.S.A. 2A:156A-3 as reaching out beyond this State’s legislative jurisdiction to proscribe as unlawful wire interceptions by Federal agents which are lawful in the jurisdiction where made in accordance with the generally recognized constitutional authority that consensual interceptions are lawful. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, (1971), reh. den. 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971); 18 Pa.Stat.Ann. § 5704 (Purdon 1979).

There are other practical objections to defendant’s interpretation of N.J.S.A. 2A:156A-4(c). He would impose an obligation on out-of-state law enforcement officers, possibly three thousand or more miles away, to obtain a determination of “reasonable suspicion” from a New Jersey law enforcement official, even under exigent circumstances, if the wire communication was to be made to someone in this State and, conjecturally, might be offered later in evidence here. Moreover, defendant would preclude admission of wiretaps by Federal law enforcement officers acting alone and without participation by New Jersey law enforcement officers, because only consensual interceptions at the direction of a State law enforcement officer are specifically exempt as lawful from the proscription of N.J.S.A. 2A:156A-3.

We need not decide the legality or admissibility of a wiretap in this State by or at the direction of a Federal law enforcement officer acting independently without a prior determination of “reasonable suspicion” by a State law enforcement official. Defendant urges the inadmissibility of an interception made under such circumstances, in accordance with State v. Mollica, 217 N.J.Super. 95 (App.Div.1987), certif. gr. 108 N.J. 214 (1987). We point out that Mollica is distinguishable. There the evidence obtained by Federal law enforcement officers pursuant to Federal law, i.e., telephone toll billing records, was held to be inadmissible in a New Jersey criminal prosecution on constitutional grounds. State v. Hunt, 91 N.J. 338 (1982), had previously held that such toll records were entitled to the protection of privacy under the State Constitution.

We also point out that State v. Parisi, 181 N.J.Super. 117 (App.Div.1981), precludes judicial review as to whether the State law enforcement official’s determination of “reasonable suspicion” under N.J.S.A. 2A:156A-4(c) was reached on adequate supporting evidence; the only justiciable issue on appeal is whether in fact he reached that determination. Parisi suggests that the requirement of the determination of “reasonable suspicion” is not substantive but a reporting device to monitor consensual interceptions. See the trial court opinion published at 177 N.J.Super. 451 (Law Div.1980). N.J.S.A. 2A:156A-23(d) requires the Attorney General and county prosecutors to maintain records of all consensual interceptions which they respectively authorize.

For the first time on appeal, defendant contends that the Trenton Police Department was implicated in the interceptions of Ellis’s two telephone calls to him. That contention, which was not raised below, lacks support in the record. Defendant asserts that the Trenton Police Detective not only introduced Ellis to the Federal drug enforcement agents but “maintained contact” with them “to discuss both the informant and the drug investigation.” The trial judge, in her oral opinion denying defendant’s motion to suppress, attributed the interceptions to Federal authorities. The record indicates only cooperation between Federal and State law enforcement officers and no hint of collusion between them to circumvent N.J.S.A. 2A:156A-4(c). There is nothing in the record to establish that any State law enforcement officer knew in advance of, or participated in, the interceptions of the two telephone conversations between Ellis and defendant.

Defendant raises as a second issue that the trial judge committed reversible error in excluding testimony of Ellis’s convictions for atrocious assault and battery in 1966 and for carrying a concealed weapon in 1967. In our view, their exclusion on the ground of remoteness was a proper exercise of the trial judge’s broad discretion in admitting or excluding proof of prior convictions. State v. Sands, 76 N.J. 127, 144-145 (1978); see State v. Balthrop, 92 N.J. 542, 546 (1983).

We affirm.