This is an application by the chief of police of the Borough of Penns Grove to obtain tape recordings of telephone conversations authorized by the Salem County prosecutor pursuant to N.J.S.A. 2A:156A-4(c).
This opinion supplements the court's oral decision.
On February 4, 1986, the Borough of Penns Grove police department filed disciplinary charges against Detective-Lieutenant Edmund Spinelli pursuant to N.J.S.A. 40A:14-147. The complaint charged that Spinelli violated the rules and regulations of the Penns Grove police department by "engaging in conduct unbecoming to an officer" in that on diverse dates in 1985 and 1986, while at work, he made telephone calls using "lewd, immoral and offensively coarse language or in such other manner likely to cause annoyance or alarm to one Patricia Glosson of Pennsville, New Jersey."
The telephone calls in question were recorded by officers of the Salem County prosecutor's office pursuant to N.J.S.A. 2A:156A-4(c) of the New Jersey Wiretapping and Electronic Surveillance Act which states that it is not unlawful under the 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 exist a reasonable suspicion that evidence of criminal conduct will be derived from such interception;
It is undisputed that the interception was properly made with the consent of Patricia Glosson. See State v. Parisi, 181 N.J. Super. 117 (App.Div.1981).
The Borough of Penns Grove now seeks to use the contents of the recorded tapes in a disciplinary proceeding against Spinelli. In order to do so it needs an order authorizing the prosecutor to release the tapes to the mayor, the members of borough council, solicitor, chief of police, and any psychiatric physician employed by the borough in conducting a psychiatric evaluation of Spinelli.
Thus the question presented is: Under the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A.
2A:156A-1, et seq., is it lawful to disclose tape recordings properly intercepted under the one-party consent provision, N.J.S.A. 2A:156A-4(c), to public officials of the Borough of Penns Grove for the purpose of using the recordings in a disciplinary proceeding of one of its police officers?
The New Jersey Wire Tap Act.
N.J.S.A. 2A:156A-17 and -18 govern the use and disclosure of the contents of oral or wire communications obtained in accordance with the act. The provisions are as follows:
2A:156A-17. Disclosure or use of contents of wire or oral communications or derivative evidence
a. Any investigative or law enforcement officer or other person who, by any means authorized by this act, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose or use such contents or evidence to investigative or law enforcement officers of this or another state, any of its political subdivisions, or of the United States to the extent that such disclosure or use is appropriate to the proper performance of his official duties.
b. Any person who, by any means authorized by this act, has obtained any information concerning any wire or oral communication or evidence derived therefrom intercepted in accordance with the provisions of this act, may disclose the contents of such communications or derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this or another state or of the United States or before any Federal or State grand jury; provided, however, that the contents of any wire or oral communication may be ...