The novel issue presented in this motion to suppress is whether the Attorney General or his official designee must authorize, in writing, an ex parte application to a judge for an order authorizing a consensual wire or oral interception under
N.J.S.A. 2A:156A-4(c), as is required for the interception of wire or oral communications under N.J.S.A. 2A:156A-8.
The pertinent facts of this case are as follows. The indictment charged defendants with conspiracy to commit burglary and theft of Snuffy's Restaurant located in Scotch Plains, New Jersey. The evidence supporting this indictment consisted of consensual interceptions of oral and telephonic conversations between an informant of the State and defendants.
On February 15, 1989, newly appointed State Attorney General, Peter N. Peretti, Jr. appointed Robert T. Winter, the Director of the Division of Criminal Justice, to act as his designee for the review and authorization of consensual interceptions of oral and wire communications. Thereafter, Director Winter gave the necessary approvals during the course of the investigation allowing for the consensual monitoring by which the evidence in the within matter was accumulated.
It is well settled that the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act must be strictly construed. In re Wire Communication, 76 N.J. 255, 260, 386 A.2d 1295 (1978). N.J.S.A. 2A:156A-8 provides in pertinent part:
The Attorney General, . . . or a person designated to act for such an official and to perform his duties in and during his actual absence or disability, may authorize, in writing, an ex parte application to a judge designated to receive the same for an order authorizing the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation when such interception may provide evidence of the commission of the offense of . . ., burglary, theft and related offenses. . . .
However, in certain limited situations, there are exceptions to the wiretapping act. N.J.S.A. 2A:156A-4(c) provides that it shall not be unlawful under the act for:
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. [ N.J.S.A. 2A:156A-4(c)]
Defendant argues that the restrictions contained in N.J.S.A. 2A:156A-8 pertaining to the application for authorization of interceptions by the Attorney General or his official designee apply equally to the authorization for consensual interceptions under N.J.S.A. 2A:156A-4(c). Specifically, defendant contends that in this case, the Attorney General or his official designee must have been the person who determined that there existed reasonable suspicion that evidence of criminal conduct would be derived from the interception. Although there is no case directly on point on this issue, prior case law interpreting the wiretapping statute is instructive.
In State v. Schultz, 176 N.J. Super. 65, 422 A.2d 105 (App.Div.1980), the court was called on to determine whether the consensual electronic recordings of telephone conversations were subject to the sealing ...