On appeal from the Superior Court, Law Division, Morris County.
Gaulkin, Shebell and Havey. The opinion of the court was delivered by Gaulkin, P.J.A.D.
[244 NJSuper Page 359] The State appeals by leave granted (R. 2:2-4) from an order suppressing certain "wiretap tapes, logs and evidence derived therefrom." The questions raised are (1) whether section 14 of the New Jersey Wiretapping and Electronic Surveillance Control Act (N.J.S.A. 2A:156A-1 et seq.) was violated when the
State failed to record 62 calls intercepted during a 27-hour period its primary cassette recorder was malfunctioning and (2) if so, whether that violation of the statute requires or justifies suppression of all recordings made after the malfunction was corrected.
In his April 25, 1990 written opinion, the motion judge succinctly summarized the undisputed facts concerning the wiretap, the recording procedures and the equipment malfunction:
Pursuant to the Order of March 8, 1988 of the Honorable Peter Ciolino, A.J.S.C., a tap of the telephone of defendant, Charles Palma, commenced March 11, 1988 by the Special Enforcement Unit of the Morris County Prosecutor's Office. Sgt. Edward Facas, a member of the Special Enforcement Unit, was placed in charge of both the Palma and Sullivan wiretap operations. Allan Iskra, Esq., an Assistant Morris County Prosecutor at the time, was the legal advisor for these operations. The subsequent wiretap of the telephone of defendant, Francis Sullivan, was pursuant to the April 12, 1988 Order of the Honorable Donald S. Coburn, J.S.C., and the wiretap commenced April 14, 1988.
Various witnesses testified that both wiretaps utilized a primary cassette recorder connected to an intercepting device to record intercepted wire communications. Monitors were on duty and all except one were lectured by Mr. Iskra concerning minimization procedures. Each monitor had the freedom to employ another cassette recorder, unconnected to the primary cassette recorder, for note taking of wire communications. The monitor's cassette recorder was placed next to the primary cassette recorder to record from the audio of the primary cassette recorder. This procedure potentially allowed intercepted wire communications to be recorded only on a monitor's cassette recorder, when the primary cassette recorder was being minimized. After interception, the tape in the monitor's cassette recorder would be stopped, played back, resume recording over previously recorded interceptions, and erased.
No particular instructions were given by Mr. Iskra or Sgt. Facas or anyone in a position of authority concerning use of cassette recorders by monitors. In fact, Sgt. Facas acknowledged that he was not immediately aware monitors were using cassette recorders when the Palma wiretap commenced. Mr. Iskra admitted that he never knew monitors were using these cassettes all during the Palma and Sullivan wiretaps. Yet, former Prosecutor's Investigator, Stephen Coe, testified such cassettes have been used since 1985.
On March 12, 1988, Sgt. Facas discovered certain intercepted wire communications were not recorded on the primary cassette recorder. Facas was checking the logs of conversations, prepared by the monitors, against the actual taped conversations. Facas had made a duplicate of the tape from the primary cassette recorder which he played back to make this check. Calls 34 through 37 on Tape 1 on March 11, 1988 had not been recorded. Despite Facas' discovery the interceptions continued; and calls 38 through 72 on Tape 2, between 9:00 a.m. on March 12, 1988 and 1:00 a.m. on March 13, 1988 were intercepted but
not recorded on the primary cassette recorder. On March 13, 1988 calls 73 through 95 also were intercepted but not recorded. The log of Tape 3 for March 13, 1988 indicates the equipment problems were corrected at approximately 3:30 p.m. Sgt. Facas testified that he attempted to resolve the problem without interrupting the interceptions on March 12 and 13, 1988.
Despite his knowledge of the failure of recording, Facas knew the wire communications were still being intercepted since the audio of the primary cassette recorder was working and was the source of the monitor's logs for the unrecorded calls. Facas testified that he subsequently identified a malfunction of the "slave, decoder and pen register," which prevented recording by the primary cassette recorder. Mr. Iskra and former Sgt. Vincent Moscaritola, then in charge of the Special Enforcement Unit, were told of the equipment problems by Sgt. Facas. Mr. Iskra told Sgt. Facas to prepare a report and Iskra said, "it was an honest mistake" according to Facas' testimony. At no time was any order given by anyone in authority to shut down the Palma wiretap once the failure to record on the primary cassette recorder was discovered. At no time did anyone in authority review the wiretap procedures and operations to determine whether continued recording on the primary cassette recorder was practicable.
The motion judge found that the State's failure to record conversations 38 through 95 violated section 14 of the Act (N.J.S.A. ...