CRIMINAL LAW

State v. K.W.

New Jersey Law Journal

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State v. K.W., A-128 September Term 2011; Supreme Court; per curiam; decided July 11, 2013. On appeal from the Appellate Division. DDS No. 14-1-0615 [22 pp.]

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) 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 the interception of a telephone conversation between a party consenting to the intercept and a nonconsenting party.

In this case, without first obtaining the required approval, an assistant prosecutor and detective proceeded with a consensual intercept of a conversation between a cooperating child-victim, who allegedly had been sexually assaulted by her father, and the defendant-father. Relying on the court's opinion in State v. Worthy, the trial court rejected the state's invitation to read into the Wiretap Act a good-faith or other exception and suppressed the recorded conversation secured in violation of N.J.S.A. 2A:156A-4(c).

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: State v. Worthy compels the suppression of the conversation recorded in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act. 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).

Sufficient credible evidence supports the trial court's determination that 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 N.J.S.A. 2A:156A-4(c) has been violated.

In Worthy, 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.

At its inception, the act did not prohibit or regulate consensual interceptions. However, after six years, the Legislature decided to add a provision "to provide for prosecutorial oversight and prior approval of consensual interceptions." The Worthy court concluded that the exclusionary remedy must be strictly applied. 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. The court declined to impose a judicial exception to a well-crafted legislative remedy.

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 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. 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).

The court affirms the judgment of the Appellate Division upholding the trial court's suppression of the intercepted and recorded conversation between M.W. and K.W. The matter is remanded to the trial court.

Chief Justice Rabner; Justices LaVecchia, Albin, Hoens and Patterson; and Judges Rodríguez and Cuff, both temporarily assigned, join in this opinion.

For appellant — Steven A. Yomtov, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For respondent — Diane M. Toscano, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender).

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