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State v. K.W.

Supreme Court of New Jersey

July 11, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
K.W., Defendant-Respondent.

Argued April 17, 2013

On appeal from the Superior Court, Appellate Division.

Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).

Diane M. Toscano, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

PER CURIAM

The issue in this appeal is whether a telephone conversation intercepted by law enforcement officials in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -34, must be suppressed.

On September 18, 2009, thirteen-year old M.W. reported to the local police that her father, K.W., had repeatedly sexually assaulted her. The matter was referred to the Essex County Prosecutor's Office where Detective Mario Suarez of the Special Victims Unit was assigned to conduct an investigation. On the morning of September 19, 2009, Detective Suarez met with M.W. and her mother. Later that morning, M.W. gave a tape-recorded statement to Detective Suarez, detailing her father's sexual assaults against her, which began when she was eleven years old. That day, the "on-call" Assistant Prosecutor for the Child Abuse Unit reviewed the facts of the case by telephone with a senior assistant prosecutor, the Director of the Child Abuse Unit (Director). The Assistant Prosecutor proposed that a consensual telephone intercept be conducted, with M.W. engaging her father in conversation. The Director agreed that "would be the best course of action." Believing she had authorization to conduct the intercept, the Assistant Prosecutor gave permission to Detective Suarez to proceed with the wiretap.

Detective Suarez completed an "application/authorization data" form for a third-party consensual intercept under N.J.S.A. 2A:156-4(b) on which he noted that authorization for the intercept had been granted, and M.W. and her mother signed a "certification of consent" to the intercept. The official "consensual interception authorization" form had every field completed, except one. The form contained no "authorized signature" or name at the bottom of the form. The intercept went forward. M.W. engaged her father in a conversation during which he made a number of incriminating remarks.

The Director was unaware that the Assistant Prosecutor believed that he – the Director – had signaled approval for the wiretap. The Director knew he was not designated by Essex County Prosecutor Paula Dow with the authority to give permission for an intercept and, unaware that the intercept was proceeding apace, he sought authorization from Chief Assistant Prosecutor Robert Laurino, one of Prosecutor Dow's statutory designees. Laurino approved of the use of a consensual telephone intercept. The Director then contacted the Assistant Prosecutor to advise her of Laurino's approval, and the Assistant Prosecutor informed the Director that the intercept had concluded. Approximately ten minutes had elapsed since the Director's earlier conversation with the Assistant Prosecutor.

On the evening of September 19, 2009, a Superior Court judge issued a warrant to search defendant's apartment based on an affidavit submitted by Detective Suarez. The affidavit contained no mention of the consensual intercept or the contents of the intercepted conversation. Nor did the warrant refer to a consensual intercept. That evening, the warrant was executed and K.W. was arrested. K.W. was charged in a thirty-two count indictment, including twelve counts of first-degree aggravated sexual assault.

K.W. claimed that the consensual intercept without prior prosecutorial consent violated N.J.S.A. 2A:156A-4(c) and moved to suppress all evidence secured as a result of the "illegally intercepted wire, electronic, or oral communication pursuant to N.J.S.A. 2A:156-21." At the hearing on the motion, the Assistant Prosecutor conceded that "[w]e did not have the appropriate party's authorization prior to initiating the consensual intercept." She explained that she was not familiar with the requirements under the Wiretap Act and believed that she had the "necessary approval" for the consensual intercept from the Director.

Relying on State v. Worthy, 141 N.J. 368 (1995), the trial court "strictly interpreted" the mandate of the Wiretap Act, finding no good-faith exception for not obtaining the requisite prosecutorial consent before undertaking a consensual intercept. The court suppressed the tape-recorded conversation between M.W. and K.W. The court did not suppress the evidence seized from K.W.'s apartment because the issuance of the search warrant was not in any way based on the illicit intercept.

The Appellate Division granted the State's motion for leave to appeal. The appellate panel concluded that the State failed to procure the appropriate prosecutorial approval before conducting the intercept and therefore affirmed the trial court's suppression of the recorded conversation between M.W. and K.W. In upholding the trial court's suppression order, the panel emphasized that "[f]ailure to strictly comply with the Wiretap Act warrants suppression of the unlawfully obtained communication, " citing N.J.S.A. 2A:156A-21(a).

The Supreme Court granted the State's motion for leave to appeal.

HELD: Application of State v. Worthy, 141 N.J. 368 (1995), compels the suppression of the conversation recorded in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34. Neither the County Prosecutor nor her designee authorized the consensual intercept before it was undertaken, as required by N.J.S.A. 2A:156A-4(c).

1. Sufficient credible evidence supports the trial court's determination that Chief Assistant Prosecutor Laurino – the County Prosecutor's designee to authorize a consensual intercept – did not approve the wiretap until after the intercept began. In light of that factual finding, there is no question that the command of N.J.S.A. 2A:156A-4(c) has been violated. In Worthy, supra, the Court found that the legislative concern "for the privacy interests of individuals" affronted by intercepted telephone communications "demands the strict interpretation and application of the Wiretap Control Act." Id. at 379-80. At its inception, "[t]he 1968 New Jersey Wiretap Control Act did not prohibit or regulate consensual interceptions." Id. at 382 (citing L. 1968, c. 409, § 4(b)). However, after six years of experience with the Act, the Legislature decided to add a provision "to provide for prosecutorial oversight and prior approval of consensual interceptions." Ibid. (citing L. 1975, c. 131, § 4(c); N.J.S.A. 2A:156A-4(c)). The Court concluded that "the exclusionary remedy" must "be strictly applied." Id. at 384. N.J.S.A. 2A:156A-21(a) "contains no good-faith exception, " and the Court therefore does not look to the "motives of the law enforcement officers" who fail to comply with the dictates of the Wiretap Act. Id. at 385. The Court declines to impose a judicial exception to a well-crafted legislative remedy. (pp. 11-16)

2. The current language of N.J.S.A. 2A:156A-4(c), based on a 1999 amendment that removed the "reasonable suspicion" requirement and included the county prosecutor's designee as an official authorized to approve a consensual intercept, does not undercut the holding and reasoning of Worthy, supra, or its meticulous recitation of the legislative purpose in demanding strict adherence to the "requirement of prior prosecutorial approval before the police may direct a 'consensual' wiretap" and in crafting a suppression remedy undiluted by judicial exceptions. Id. at 379. A straightforward application of Worthy compels the affirmance of the trial court's suppression of the consensual intercept in this case. Neither the County Prosecutor nor her designee authorized the consensual intercept before it was undertaken, as required by N.J.S.A. 2A:156A-4(c). (pp. 16-19)

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for proceedings consistent with the Court's opinion.

PER CURIAM.

In this appeal, we must decide whether a telephone conversation intercepted by law enforcement officials in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -34, must be suppressed. N.J.S.A. 2A:156A-4(c) requires that prior approval must be given by the Attorney General, the County Prosecutor, or one of their designees, before a law enforcement officer can authorize ...


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