On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication February 20, 1996.
Before Judges Pressler, Keefe and A.a. Rodriguez. The opinion was the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion was the court was delivered by KEEFE, J.A.D.
After unsuccessfully moving to suppress evidence obtained through an authorized wire tap, defendant pled guilty, pursuant to a plea agreement, to second degree conspiracy to distribute more than five pounds of marijuana. As a part of the negotiated plea, the State agreed to dismiss the other two counts of the indictment and recommend that any custodial sentence would not exceed nine years with a four year parole disqualifier, consecutive to the murder sentence that defendant was then serving in state prison. Defendant preserved the right to appeal the trial court's rulings on all pre-trial motions. Subsequently, defendant was sentenced in accord with the agreement.
On appeal, defendant contends that the trial Judge erred in denying his motion to suppress the wiretap evidence against him because: (1) taps of cellular phones could not, at the relevant time, be authorized under the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., and (2) the wiretap authorization order did not state the location of the cellular phone to be tapped, as required by the aforesaid statute. Defendant also maintains that his sentence was excessive given the sentences of similarly situated co-defendants. We disagree with defendant's contentions and affirm.
The wiretap on the cellular telephone in question took place between December 24, 1991 and March 22, 1992. Defendant essentially argues that cellular telephones were brought under the ambit of the Federal Wiretap Act in 1986 when Congress passed the Electronic Communications Privacy Act (ECPA). He further contends that the "Special Rule" adopted by Congress in connection with the ECPA gave the states two years thereafter to enact conforming legislation. Inasmuch as New Jersey did not promulgate conforming legislation until 1993, defendant reasons that New Jersey courts were without the authority to issue a cellular wiretap during the period in question.
We conclude, as did the trial Judge, that cellular telephone calls of the kind intercepted in this case were, in fact, covered by the 1968 Act and were unaffected by the ECPA. Our Conclusion is supported by the ECPA's legislative history which clearly and unambiguously states that cellular phones were covered by the 1968 Act.
Scanning enthusiasts have argued to the Committee that the mere monitoring of cellular telephone calls should not be illegal. That argument ignores three important realities. First, Congress, in passing the 1968 Wiretap Law already made willful monitoring of such telephone calls illegal when at least part of the conversation is carried by wire . . . .
[S. Rep. 99-541, 99th Cong.2d Sess. reprinted in 1986 U.S.C.C.A.N. at 3561 (hereinafter "1986 Senate Report").]
The corresponding House Report is in agreement:
Cellular telephone calls can be intercepted by either sophisticated scanners designed for that purpose, or by regular radio scanners modified to intercept cellular calls.
The availability of this technology poses a troubling conflict between the technology of surveillance and new techniques of communication using radio. Interception of cellular ...