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State v. Worthy

July 27, 1995

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN WORTHY, LAMONT A. BRISCOE AND WILLIE MAE WORTHY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 273 N.J. Super. 147 (1994).

Chief Justice Wilentz and Justices Pollock, O'hern, Garibaldi, Stein, and Coleman join in Justice HANDLER's opinion.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. JOHN WORTHY, ET AL. (A-101)

Argued February 28, 1995 -- Decided July 27, 1995

HANDLER, J., writing for a unanimous Court.

The issue on appeal is whether initial interceptions of telephonic communications violated the terms of the New Jersey Wiretap and Electronic Surveillance Act (Wiretap Control Act) and whether that statute applies to the interception of telephone conversations originating from an out-of-state telephone.

Michael DiGiorgio, a New Jersey prosecutor's investigator, obtained from an informant in Oklahoma named Gordon Todd Skinner, information that tended to incriminate John Worthy, a New Jersey resident. DiGiorgio knew both Skinner and Worthy from previous drug investigations. Skinner told DiGiorgio that Worthy had, during the course of an April 1, 1991, conversation, described his existing cocaine-distribution network in New Jersey and Pennsylvania. Worthy indicated to Skinner that he wanted to expand his network to include the sale of marijuana and allegedly proposed to purchase marijuana from Skinner.

Prior to that conversation, there was no outstanding investigation targeted at Worthy. DiGiorgio, based on the information provided by Skinner, directed Skinner to record his telephone conversations with Worthy. Skinner agreed. DiGiorgio did not seek or obtain approval from the prosecutor prior to the recording of the calls.

The tape-recorded conversations and evidence subsequently derived from those conversations incriminated Worthy in drug offenses in New Jersey, for which he and two co-defendants were indicted. Worthy and his co-defendants moved to suppress the initial recorded conversations, as well as the subsequently obtained evidence, claiming that the failure of DiGiorgio to obtain the approval of the prosecutor for the initial wiretap violated the Wiretap Control Act. The trial court granted the motion to suppress the initial tape-recorded conversations because the interceptions had not been approved by the prosecutor. The court further suppressed the subsequently acquired incriminating evidence, which included later tape-recorded conversations intercepted with the approval of the prosecutor, finding that the subsequent evidence was derived from the initial, unlawfully intercepted, communications.

The Appellate Division affirmed the trial court's rulings. The Supreme Court granted the State's motion for leave to appeal.

HELD: The New Jersey Wiretap Control Act applies to the interception of out-of-state telephone calls when a person located in New Jersey is a party, when the interception is undertaken for the purpose of investigating criminal activity in this State, and when New Jersey law enforcement officers direct, or cooperate in, the interception. Because prosecutorial review was not obtained for the initial wiretap interceptions of James Worthy, the conversations were unlawfully intercepted and must be suppressed, as well as any evidence derived from that illegal interception.

1. Under the Wiretap Control Act, one of the parties to the communication must have given prior consent to the interception and that the interception must have the approval of the Attorney General, her designee or a county prosecutor, who within his or her authority determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception. (pp. 9-10)

2. The application of the Wiretap Control Act here does not constitute an impermissible or extra-territorial extension of the statute because the telephone calls, though originating from an out-of-state telephone, involved conversations with the person in New Jersey. In imposing a requirement of prior prosecutorial approval before the police may direct a consensual wiretap, the Legislature sought to safeguard personal privacy. That legislative concern for individual privacy demands a strict interpretation and application of the Wiretap Control Act. The Act requires prosecutorial consent, even where the intercepted communication originates out-of-state. Moreover, the Act prohibits the procuring of any other person to intercept a communication. Here, DiGiorgio procured Skinner to intercept when DiGiorgio instructed Skinner to record conversations with Worthy. (pp. 10-14)

3. Under the Act, an aggrieved person may move to suppress the contents of any intercepted wire, electronic, or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted. If the motion is granted, the entire contents of the intercepted wire, electronic or oral communications obtained during or after any interception that is determined to be in violation of the Act, or evidence derived therefrom, shall be inadmissible at trial. The Legislature viewed the requirement of supervisory approval as an indispensable protection for the privacy interests implicated in consensual telephone wiretaps. The history of the Act strongly evidences that legislative intent. (pp. 14-20)

4. The strict interpretation accorded the Wiretap Act by New Jersey courts, the interest in privacy protected by the Act, the legislative intent to strengthen the suppression remedy, and the plain meaning of the language demand that the exclusionary remedy be strictly applied. A showing of bad faith is not required; all that is required is a purpose to further a New Jersey criminal investigation. In not seeking prosecutorial review, DiGiorgio failed to comply with an essential requirement of the statute; therefore, the conversations were unlawfully intercepted and must be suppressed according to the Act's own terms. (pp. 20-23)

5. A strict reading of the Act supports the proposition that all evidence derived from the illegal interception -- the conversations recorded by that interception, conversations recorded after the unlawful interception, and other evidence "derived" from the illegal interception -- shall be excluded. Both the lower courts properly found that the subsequent interceptions were impermissibly tainted by the prior unlawful interception. Both later applications for authorization to record conversations relied entirely on the illegally intercepted communications as a basis for a reasonable suspicion of criminal activity. The trial court appropriately found that there is no independent evidence or information placed before the prosecutor's on which they acted and which would provide the basis for an intervening and independent event sufficient to remove the taint of the unlawful evidence that was relied on. (pp. 23-28)

6. In light of the Legislature's obvious concern for privacy in its express and consistent recognition of the need for an effective exclusionary rule to effectuate the protection of privacy, it is not reasonable to impute a legislative intent to temper that exclusionary rule through an "inevitable discovery" exception. Moreover, in this case, the State could not take advantage of such an exception if it existed. The tapes were essential and critical to this investigation and there was no indication that any other independent investigative process would have resulted in the interception of the conversations and the arrest of the defendants. Thus, the State has failed to show by clear and convincing evidence that the likelihood of a separate investigation that would have led to the detection of Worthy's participation in the crimes charged in the indictment. (pp. 28-32)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.

The opinion of the Court was delivered by HANDLER, J.

This case involves the application of the New Jersey Wiretap and Electronic Surveillance Control Act to tape-recorded telephone conversations between a consenting out-of-state caller and the unsuspecting defendant in New Jersey.

A New Jersey prosecutor's investigator obtained from an informant in another state information that tended to incriminate the defendant, a New Jersey resident. The investigator knew both the informant and the defendant from previous drug investigations. The investigator directed the informant to record his telephone conversations with defendant, and the informant consented to do so. The investigator, however, did not seek or obtain approval from the prosecutor prior to the recording of the calls.

The tape-recorded conversations and evidence subsequently derived from those conversations incriminated defendant in drug offenses in New Jersey, for which he and two co-defendants were indicted. Defendants moved to suppress the initial, recorded conversations, as well as the subsequently obtained evidence, claiming that the failure of the investigator to obtain the approval of the prosecutor for the initial wiretap violated the wiretap statute. The trial court granted the motion to suppress the initial tape-recorded conversations because the interceptions had not been approved by the prosecutor. The court further suppressed subsequently acquired incriminating evidence, which included later tape-recorded conversations intercepted with the approval of the prosecutor, finding that the subsequent evidence was derived from the initial, unlawfully intercepted communications.

The Appellate Division, in a reported decision, 273 N.J. Super. 147 (1994), unanimously affirmed the trial court's rulings. This Court granted the State's motion for leave to appeal.

I

Investigator Michael DiGiorgio is a member of the Narcotics Strike Force of the Gloucester County Prosecutor's Office. On April 1, 1991, Gordon Todd Skinner, a cooperating informant residing in Oklahoma, contacted DiGiorgio. Skinner, who had been indicted in New Jersey on charges of distribution of controlled dangerous substances, provided DiGiorgio with information regarding a telephone conversation he had had with defendant John Worthy, a resident of Paulsboro, New Jersey. DiGiorgio was familiar with both Skinner and Worthy from prior drug-related investigations. Skinner informed DiGiorgio that Worthy had, during the course of the conversation, described his existing cocaine-distribution network in Paulsboro and Philadelphia, Pennsylvania. Worthy indicated to Skinner that he wanted to expand his network to include the sale of marijuana, and allegedly proposed to purchase marijuana from Skinner. That alleged conversation between Worthy and Skinner was not recorded or transcribed.

Prior to that conversation, there was no outstanding investigation targeted at Worthy. Based on the information provided by Skinner, DiGiorgio decided to initiate an investigation of Worthy and to "conduct a 'reverse' purchase of marijuana where Skinner would sell the drugs to defendant in New Jersey. " DiGiorgio directed Skinner to record any future conversations with Worthy. The State concedes that "at that point Mr. Skinner was working . . . under the color of law." DiGiorgio did not seek prior approval from the Attorney General or her designee or a county prosecutor to determine "that there existed a reasonable suspicion that evidence of criminal conduct would be derived from such interception." N.J.S.A. 2A:156A-4c. DiGiorgio stated that he did not seek prior authorization because "basically I didn't believe I needed [it]"

On April 5, 1991, Skinner placed a call from Oklahoma to John Worthy. Skinner recorded the conversation, and later mailed the original tape to DiGiorgio, who marked it as "M.D. - A." During the taped conversation, Skinner asked Worthy "how much could you move in thirty days." Worthy responded that he could sell ten pounds in that period. Skinner then asked if there was "any way you could do twenty [pounds]" in thirty days. Worthy responded that "I would sell ten, I would sell ten broken down and ten weight, ya know what I'm saying." Skinner then asked Worthy if he could sell a pound for "two thousand forty" dollars. Skinner then stated that he would provide a pound of marijuana for $1,700, but that Worthy would have to pay $10,000 up front for twenty pounds of marijuana, with the balance due when the marijuana was sold. Eventually, Skinner calculated that after putting down $10,000 to receive the twenty pounds of marijuana, Worthy would owe him the balance of $24,000. Worthy asked Skinner what his profit would be if he could sell twenty pounds for $2,500 apiece. Skinner replied that that would "give ya sixteen thousand dollars." Skinner instructed Worthy that "I don't want you [Worthy] blowin' this out for some cheap price" and indicated that as long as he [Skinner] received $10,000 up front to pay off suppliers and carriers, the balance could be paid once the marijuana was sold for an appropriate price. Worthy and Skinner then arranged to talk again.

On May 28, 1991, Skinner placed another call from Oklahoma to Worthy. Skinner also recorded this conversation. Worthy indicated that the police were looking for him in Paulsboro, though there were no warrants out on him. Skinner inquired if Worthy had "come up with the ten?" Worthy replied that he had done so. Skinner then asked how much marijuana Worthy wanted to buy. Worthy replied that "I can get rid of thirty." After agreeing on the quantity of marijuana to be purchased, Worthy and ...


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