On certification to the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 521 (1988).
For reversal and remandment -- Chief Justice Wilentz, and Justices Handler, O'Hern and Garibaldi. Concurring in result -- Justices Clifford, Pollock and Stein. The opinion of the Court was delivered by O'Hern, J. Pollock, J., concurring in part and dissenting in part.
This appeal requires us to balance interests of federalism in application of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -26 (hereinafter the wiretap law). In particular, we must resolve whether an intercepted telephone message obtained by a federal agent in accordance with federal wiretap law, which would be admissible in a federal criminal trial, is inadmissible in a state court proceeding because the federal agent did not follow procedures required of state agents under the New Jersey wiretap law. We hold that only when the relationship between federal and state agents implicates the concerns that prompted the special requirements of the State's wiretap law will the evidence be inadmissible in a state court proceeding. We find that the record in this case is inadequate to resolve the question of the extent of the cooperation by state and federal agents. We remand the matter for consideration of that one issue.
Preliminarily, we note that we do not deal here with "dirty business" undertaken by federal agents. Cf. Olmstead v. United States, 277 U.S. 438, 470, 48 S. Ct. 564, 569, 72 L. Ed. 944, 953 (1927) (Holmes, J., dissenting). The record is clear here that the federal agent's actions were strictly in accordance with federal law. Hence no loss of judicial integrity is implicated in a decision to admit the evidence. See id. at 484, 48 S. Ct. at 574-75, 72 L. Ed. at 959 (Brandeis, J., dissenting). Rather, we see the question as turning on a weighing of the Legislature's purposes in regulating the wiretapping of New Jersey's citizens.
For purposes of this appeal, we accept the defendant's version of the facts. Trenton police arrested a man named Ellis on a charge of conspiracy to distribute amphetamines. Ellis went to a Trenton detective for help with his arrest. The Trenton law-enforcement official told Ellis that in exchange for his cooperation, the detective would help Ellis get a suspended sentence.
The Trenton detective then arranged to have Ellis meet two agents of the Federal Drug Enforcement Agency (DEA). The detective then communicated with the Mercer County prosecutor's office to advise the office that Ellis was an informant working for him. The detective continued thereafter to meet with the DEA to discuss Ellis' role in the drug investigation.
One of the DEA agents met with Ellis on June 2, 1981, to have Ellis communicate with the defendant, Elyze A. Minter to purchase drugs. A telephone call was arranged between Ellis and the defendant on June 4, 1981, which was recorded. The call was placed from Morrisville, Pennsylvania, to the defendant's office in Trenton, New Jersey. After the telephone call, DEA instructed Ellis to meet with the defendant. Attempts to do so were unsuccessful. A meeting eventually was set up for June 15, 1981. Ellis met with the DEA agent and was instructed on what he was to say and ask for in setting up a purchase of drugs. This was to be a "controlled buy." The informant was given money to purchase drugs from the defendant under DEA's surveillance. Although Ellis and defendant did meet on this occasion, no purchase of drugs was made.
On June 18, Ellis met again with the DEA agent in Morrisville to make another telephone call with the defendant. This was for another purchase of drugs. The call was recorded in a similar fashion as the previous conversation. During that telephone conversation, Ellis told the defendant he wanted to make a drug buy, but no meeting was set up.
Ellis never made a "controlled buy" from the defendant while under federal surveillance. Ellis maintains, however, that he
did buy drugs from Minter in June 1981, and on two other occasions. DEA, however, closed its case on Minter in February of 1982 and later turned over its evidence to the State in January 1984.
These proceedings followed, and the defendant was indicted for criminal possession of drugs with intent to distribute. Before trial, he moved to suppress the wiretap information. The motion was denied. A jury convicted defendant of conspiracy to distribute cocaine. Defendant received a sentence of three years probation conditioned on service of six months in the Mercer County Correction Center. On appeal, the Appellate Division affirmed his conviction. 222 N.J. Super. 521 (1988). Defendant challenged his conviction as based on unlawful and inadmissible wiretap evidence. Two members of the court affirmed his conviction, asserting that the New Jersey wiretap law did not have extra-territorial effect and could not control the conduct of the officers in Morrisville, Pennsylvania. Id. at 524-25. The concurring judge agreed with the result but viewed the search as valid because the New Jersey wiretap law regulated only the conduct of state law-enforcement agents and not federal agents and therefore did not render the evidence inadmissible in a state court proceeding. Id. at 527 (Brody, J., concurring). Additionally, the second issue raised on appeal was whether the trial court's exclusion of the prior convictions of the State's witness was prejudicial error. Both the trial court and Appellate Division found that the evidence of the informant's prior conviction was too remote and thus properly excluded under State v. Sands, 76 N.J. 127 (1978). 222 N.J. Super. at 527. We leave the prior-conviction ruling undisturbed and address only the wiretap issue. We granted the defendant's petition for certification. 111 N.J. 645 (1988).
Conceptually, this case presents the flip-side of Benanti v. United States, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2d 126 (1957),
in which the Supreme Court examined the related proposition whether wiretap evidence obtained by state officers in accordance with state law but in violation of the then-applicable federal law may be admitted in a federal criminal proceeding. The answer was "no," and the reasoning is clear. Federal wiretap law is paramount: it binds federal and state officials alike, setting a threshold that may not be lowered. See id. at 104-06, 78 S. Ct. at 159-60, 2 L. Ed. 2d at 132-33. The use of the tainted evidence will not be countenanced in the federal forum. This case differs in that the search is valid under federal law; the question is whether State law can make the search invalid or the evidence inadmissible in a State court proceeding.
Current federal regulation of wiretaps followed the Supreme Court decisions in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Berger, the Court held the permissive New York eavesdropping statute to be "too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and * * * therefore, violative of the Fourth and Fourteenth Amendments." 388 U.S. at 44, 87 S. Ct. at 1876, 18 L. Ed. 2d at 1044. The Court condemned "the statute's blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures." Id. at 60, 87 S. Ct. at 1884, 18 L. Ed. 2d at 1053. In Katz v. United States, supra, the Supreme Court made clear that the fourth amendment protected "people, not places," holding that eavesdropping on a conversation in a telephone booth offended fourth amendment principles although there had been no trespass on the person's property. 389 U.S. at 351-53, 88 S. Ct. at 511-12, 19 L. Ed. 2d at 582-83.
The Omnibus Crime Control and Safe Streets Act of 1968 (codified as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2521), responded to the concerns raised in Berger and Katz by creating a limited system of wire surveillance and electronic eavesdropping within the
framework of the fourth amendment and the guidelines of Berger and Katz.
The federal wiretap act authorized states to enact wiretap laws of their own in conformity with certain basic requirements. New Jersey's wiretap law followed the federal pattern in some respects, but not all. Under New Jersey's law, the key guarantee of the right to privacy forbids even parties from surreptitiously recording telephone conversations when acting "at the direction of an investigative or law enforcement officer." N.J.S.A. 2A:156A-4(c). In general, the wiretap law forbids anyone to intercept any wire or oral communication, N.J.S.A. 2A:156A-3, and defines "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device," such as a tape recording. N.J.S.A. 2A;156A-2(c). Only certain exceptions are permitted. N.J.S.A. 2A:156A-4.
At issue here is the exception that permits a party acting at the direction of a police officer to record a conversation. Under the federal wiretap law it is not unlawful for a person acting under the color of law to conduct a wiretap "where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c). The federal wiretap act does not require a federal agent to obtain prior authorization from the United States Attorney General's office to record a telephone conversation, but requires only that an agent obtain prior consent from one of the parties to the conversation. 18 U.S.C. § 2511(2)(c). New Jersey wiretap law differs, however, because a party to a conversation "acting at the direction of an investigative or law enforcement officer" may intercept the conversation, but the law-enforcement officer must first obtain approval from the Attorney General or a county prosecutor, who shall determine whether "there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception." N.J.S.A. 2A:156A-4(c).
The legislative history indicates a strong interest in protecting the privacy of individuals and controlling intrusive police activity. In the 1975 reauthorization of the wiretap law, our Legislature specifically refused to accede to a request by the Attorney General that evidence overheard by New Jersey's law-enforcement officials be admissible similar to the federal counterpart. Attorney General, Report on the New Jersey Wiretapping Act, L. 1968, c. 409; see Hyland & Martinez, "Wiretapping and Electronic Surveillance: The New Jersey Experience" (Pt. 1), 173 N.Y.L.J. 1, 4 (Apr. 24, 1975). Instead, the Legislature required state law-enforcement officers first to obtain the approval of the prosecuting authorities. S. Judiciary Comm.Statement to S. No. 1417, L. 1975, c. 131 (May 19, 1975).
The legislative history refers to a proposal that a court order, not merely prior authorization, should be required before an informant and agent tape a conversation. New Jersey Wiretapping and Electronic Surveillance Control Act: Hearings on S. 1417, 1096 Leg., 2d Sess. (1975) (V. I at 40, V. II at 45A). The two primary arguments law-enforcement officials made against requiring such an order were the difficulties with time delays and establishing probable cause. Id. V. II 42A-44A. One prosecutor offered the view that requiring a court order would be counter-productive because it would drive investigations into the less restrictive federal forum. Id. V. II at 45A-46A. Although this suggestion was met with silence, it may demonstrate why the Legislature chose the less stringent proposal requiring prosecutorial authorization. In its 1989 extension of the wiretap law, L. 1989, c. 85, the Senate Judiciary Committee again rejected a request of the Association of Criminal Defense Lawyers that would have required law-enforcement officials to obtain a court order for consensual electronic surveillance. Schwaneberg, "Committee act to extend wiretap law until '94," The Star-Ledger, Feb. 24, 1989, at 34, col. 1.
In any event, the federal agent here could do what the state agent could not. We must resolve, then, what the consequences are in state criminal proceedings. The questions thus
to be resolved are: Does the wiretap law or its underlying policies prohibit the use in New Jersey courts of evidence independently obtained by federal agents according to federal standards, but not to the New Jersey wiretap law? If such evidence is generally admissible, does cooperation between federal and New Jersey officials preclude its admissibility?
Is wiretap evidence obtained independently by federal officers in accordance with federal guidelines, but not state guidelines, ...