On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
Before Judges King, Havey and A.a. Rodriguez.
The opinion of the court was delivered by RODRIGUEZ, A.A., J.S.C. (temporarily assigned).
By leave granted*fn1 the State appeals two orders suppressing tapes of telephone conversations between defendant and an informant.*fn2 The conversations were recorded at the direction of a New Jersey law enforcement officer. We conclude that in those circumstances N.J.S.A. 2A:156A-4c requires prosecutorial consent even when a conversation originates outside of New Jersey. We affirm.
Gloucester County Prosecutor's Investigator Michael DiGiorgio, received information from Gordon Todd Skinner, an individual under indictment for distribution of controlled dangerous substances, that defendant intended to expand his narcotics trafficking business to include marijuana. DiGiorgio knew defendant from a prior drug arrest. DiGiorgio instructed Skinner to record any telephone conversations with defendant.
A telephone conversation is a "wire communication" within the meaning of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to 26 (the wiretapping law), specifically N.J.S.A. 2A:156A-2a. A party to a telephone conversation who tape-records it is deemed to "intercept" a wire communication. N.J.S.A. 2A:156A-2c. Thus, pursuant to N.J.S.A. 2A:156A-4c a telephone conversation may be recorded by a party to it only at the direction of a law enforcement officer and provided that the Attorney General, his or her designee or a county prosecutor has determined that there exits a reasonable suspicion that evidence of criminal conduct will be derived from such interception.
At the time, Skinner resided in Oklahoma and DiGiorgio assumed that, because the telephone calls would be originating from there, it was not necessary to obtain the County Prosecutor's prior consent to record them.
Skinner made and recorded several telephone calls to defendant from Oklahoma. He mailed tapes of these conversations (the Oklahoma tapes) to DiGiorgio. In these conversations, Skinner and defendant negotiate a sale to defendant of thirty pounds of marijuana. The conversations concern the price, date and arrangements for delivery of the marijuana to defendant in New Jersey.
At that point, DiGiorgio sought the consent of the Gloucester County Prosecutor to record any telephone conversations which might originate in New Jersey. As a basis for obtaining such consent, he submitted the transcripts of the Oklahoma tapes. DiGiorgio feared that defendant would not come to Gloucester County because he had previously been convicted there of a narcotics violation. Therefore, DiGiorgio arranged for the delivery of the marijuana to take place in Cumberland County and sought the consent of the Acting Cumberland County Prosecutor to record any telephone conversations occurring in that jurisdiction.
On June 12, 1991, at a pre-arranged time and place, Skinner delivered thirty pounds of marijuana to defendant in exchange for money. That illegal transaction was videotaped and several telephone conversations leading up to it were recorded by Gloucester County Prosecutor's staff (the New Jersey tapes). John Worthy and his companion Lamont Briscoe, were arrested upon leaving the motel room where the exchange had taken place.*fn3
A Gloucester County grand jury returned an indictment charging John Worthy, Briscoe and Willie Mae Worthy with conspiracy to distribute marijuana, N.J.S.A. 2C:35-5a(1) and 5b(10); and John Worthy with being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3.
Defendants filed a motion to suppress the Oklahoma tapes. Judge Lisa granted the motion and ordered a hearing to determine the admissibility of the New Jersey tapes. After an evidentiary hearing, the Judge suppressed the New Jersey tapes as well, concluding that they were tainted by the Oklahoma tapes and not admissible under the inevitable discovery exception.
The State raises the following points on appeal: a) the Oklahoma tapes should not be suppressed for failure to obtain prior prosecutorial authorization, b) even if the Oklahoma tapes are inadmissible, the New Jersey tapes were obtained by sufficiently independent means to dissipate any taint, and c) the evidence obtained on the date of arrest is admissible under the inevitable discovery exception to the exclusionary rule.
The legislative history of the New Jersey wiretapping law expresses a strong interest in protecting the privacy of individuals and controlling intrusive police activities. State v. Minter, 116 N.J. 269, 276, 561 A.2d 570 (1989). The federal wiretap act*fn4 authorizes states to enact wiretap laws of their own in conformity with certain basic requirements. Id. at ...