On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-06-1109.
The opinion of the court was delivered by: Leone, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION APPELLATE DIVISION May 14, 2013
Before Judges Fisher, Waugh, and Leone.
The opinion of the court was delivered by LEONE, J.S.C. (temporarily assigned)
Defendants Teron Savoy and Yolanda Terry, who are husband and wife, appeal from the denial of their motion in limine to exclude cellphone calls and text messages between them that were intercepted by wiretaps. They argue that before the State could wiretap cellphones used by Savoy, it had to show a special need because he is married. We reject that argument. Defendants also argue that their communications were protected by the marital communications privilege. The State contended that (1) the interception removed the communications from protection of the marital communications privilege, and (2) the court should create a crime-fraud exception to that privilege. The trial judge accepted those contentions, and found the conversations not privileged. We cannot accept the State's first contention, however. At oral argument on appeal, the State withdrew the second contention because it now believes that such an exception can be created only by legislation or rule-making, not by judicial decision-making by this court.*fn1 We agree and reverse.
The State's brief in the trial court proffered the following alleged facts, which served as the basis for the judge's opinion.*fn2 Law enforcement authorities were investigating Savoy, who was the leader of a network distributing drugs in Ocean and Monmouth Counties. In that network, Savoy directed multiple individuals, including Terry. The State obtained judicial orders authorizing wiretaps on two cellphones used by Savoy beginning around October 7, 2010.
The State alleged that as part of his drug operation, Savoy fronted heroin to Chardel Holman. Savoy told Holman to meet Terry and pay her the drug proceeds Holman owed Savoy. On October 17, 2010, in several intercepted communications, Savoy arranged with Terry to pick up the money from Holman.
The State also alleged that on October 17, the authorities stopped a Lexus vehicle occupied by Savoy, seizing three bags of heroin, $900, and two other cellphones from Savoy's person. The authorities seized the Lexus after a police canine indicated that there were drugs in the car. Later that day, in an intercepted communication, Savoy asked Terry to retrieve unnamed items from his seized Lexus. The next day, after obtaining a warrant, officials searched the Lexus and recovered nearly twelve grams of heroin.
The grand jury indicted Savoy, Terry, Holman, and twenty other persons. All defendants were charged with conspiracy to manufacture, possess with the intent to distribute, and distribute cocaine and heroin, N.J.S.A. 2C:5-2 and 2C:35-5a and -5b(1). Savoy was also charged with being a leader of a drug trafficking network, N.J.S.A. 2C:35-3, and possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3).
The State indicated its intent to offer as evidence two or three phone conversations and five text messages between Savoy and Terry. Savoy and Terry filed motions in limine to exclude them as privileged under the marital communications privilege, N.J.R.E. 509. The State's responsive brief pointed out the large number of courts which have adopted a crime-fraud exception to that privilege.
On July 31, 2012, the trial judge issued a reasoned oral opinion. First, the judge ruled that Rule 509 prevented only spouses from disclosing confidential communications, and that the wiretap officers who overheard the marital communications could testify to them. Second, the trial judge ruled that there was a crime-fraud exception to the marital communications privilege, "an issue of first impression in New Jersey."
Accordingly, the trial judge denied defendants' motion to exclude these communications as privileged. We granted defendant's motion for leave to appeal.
On appeal, defendants raise the following issues:
POINT [I]: DEFENDANTS['] MOTION TO EXCLUDE CONFIDENTIAL MARITAL COMMUNICATION SHOULD BE GRANTED SINCE THE STATE VIOLATED THE NEW JERSEY WIRETAP ACT WHEN IT RECORDED THE COMMUNICATIONS WITHOUT A SHOWING OF "SPECIAL NEEDS" AND FAILED TO INFORM THE WIRETAP JUDGE OF SUCH RECORDINGS.
POINT [II]: THE PRIVILEGED COMMUNICATIONS DO NOT LOSE [THEIR] PRIVILEGED CHARACTER BECAUSE THEY WERE OVERHEARD BY A THIRD PARTY.
POINT [III]: NEW JERSEY HAS NOT RECOGNIZED THE "CRIME FRAUD" EXCEPTION TO THE MARITAL PRIVILEGE NOR IS APPLICATION TO N.J.R.E. 504(c)*fn3 APPROPRIATE.
The issues raised on appeal are "legal in nature, and thus our review is plenary." State v. Schubert, 212 N.J. 295, 304 (2012).
Defendants first argue that the State violated the New Jersey Wiretap and Electronic Surveillance Control Act (the Wiretap Act), N.J.S.A. 2A:156A-1 to -34. Specifically, defendants assert that N.J.S.A. 2A:156A-11 required the State to show "special need" to monitor Savoy's cellphones, because the State knew that Savoy was ...