On appeal from Superior Court, Law Division, Somerset County.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
[167 NJSuper Page 272] On August 23, 1978 we granted leave to the Prosecutor of Somerset County to appeal a suppression-of-evidence order entered by the trial judge on July 24, 1978. Subsequently, on October 18, 1978, we authorized
the Attorney General to participate, argue and file a brief as amicus curiae on behalf of the State. We narrate the events leading to this appeal.
On January 25, 1978 a Somerset County grand jury indicted defendant McDermott on two counts. The first charged that on October 9, 1977 he had possession of marijuana in excess of 25 grams, contrary to N.J.S.A. 24:21-20a(4). The second charged that on the same date defendant distributed marijuana to an undercover officer, contrary to N.J.S.A. 24:21-19a(1).
Defendant thereafter made a timely motion to suppress certain evidence on the ground that the evidence was tainted as the result of an illegal interception of a telephone call made by an informer and overheard on an extension telephone by a municipal detective. Specifically, defendant contended that: (1) the call was overheard on the extension telephone without the consent of the informer; (2) the prosecutor of the county had not made the determination required by the New Jersey Wiretapping and Electronic Surveillance Control Act (act), N.J.S.A. 2A:156A-4(c),*fn1 and (3) as we interpret the language of the motion, that a suction-cup induction-coil recording apparatus was attached to the extension telephone.*fn2
At the outset it may be assumed that defendant's contention that the informer did not consent to the detective's listening to the conversation over the extension telephone has been abandoned. The evidence established that the informer did consent.
Following an evidential hearing on said motion, the trial judge entered the suppression order which is the subject of this appeal. It directed that
* * * the initial telephone call placed on October 9, 1977 by the informant to the defendant and the meeting between defendant and members of the Franklin Township Police Department and/or the Somerset County Prosecutor's Investigators staff which was a direct result of said telephone call, and any evidence derived therefrom, be and hereby is suppressed, and such evidence shall not be received in evidence at any trial, hearing or proceeding.
The evidential hearing disclosed that an informer was willing to cooperate with the police to apprehend defendant, who had earlier sold marijuana to the informer. On October 9, 1977 at about 3 P.M., under arrangements with the police the informer called defendant from a desk telephone in the Franklin Township police headquarters and arranged for a "friend" (who was to be Franklin Township Detective Racz) to purchase marijuana from defendant. A meeting was arranged with defendant for 8 P.M. that evening. This conversation was monitored and recorded by Detective Racz by the use of an extension telephone in the police headquarters, to which was attached a suction-cup induction coil, which in turn was plugged into a recorder.
Before the scheduled meeting was held with defendant, a county detective, acting in cooperation with the township police department, submitted a written request to the county prosecutor for "consensual interception authorization" pursuant to N.J.S.A. 2A:156A-4(c). The request in part stated:
Factual basis for request: Informant to place telephone call to Mike McDermott to order a quantity of Marijuana. Informant has purchased marijuana from McDermott in the past and as recent as one day ago. Informant was told by McDermott when the informant wanted to purchase a quantity of marijuana to call him first at telephone # 828-5601.
It appears from the notation on the prepared form of request that the prosecutor approved the request by telephone at 8:20 that same evening. Thereafter, we are told that another telephone call was made by the informer to defendant,
which resulted in a meeting at about 10 P.M., during which defendant sold ...