On appeal from the Superior Court, Law Division, Mercer County.
Furman, Brody and Scalera. The majority opinion was delivered by Furman, P.J.A.D. Brody, J.A.D., concurring.
[222 NJSuper Page 522] 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, ...