STATE OF NEW JERSEY v. K.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6184-10T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

K.W.,

Defendant-Respondent.

__________________________

ArguedMarch 20, 2012 Decided April 4, 2012

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1286.

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

Diane Toscano, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Toscano, of counsel and on the brief).

PER CURIAM

By leave granted, plaintiff State of New Jersey appeals from the July 15, 2011 order, which granted the motion of defendant K.W. to suppress evidence gained as the result of an unlawful consensual telephone communication intercept between him and his daughter, M.W. We conclude that the motion was properly granted, and affirm.

The facts are straightforward. On September 18, 2009, M.W., then thirteen years old, reported to the police that defendant had been sexually assaulting her over a period of two years, with the last assault occurring on September 6, 2009. An Assistant Prosecutor and Detective from the Essex County Prosecutor's Office Special Victims Unit met with M.W. and her mother the morning of September 19, 2009, and obtained a recorded statement from M.W. detailing the sexual assaults. The matter had also been reported to the Division of Youth and Family Services (the Division). The Division planned to contact defendant the next day and remove M.W.'s brother from defendant's home, and agreed to allow the Prosecutor's Office the day of September 19, 2009 to investigate M.W.'s allegations.

The Assistant Prosecutor decided to intercept a consensual telephone communication between M.W. and defendant, and contacted her supervisor, the Assistant Prosecutor-Director of the Child Abuse Unit, for permission. The Director agreed that an intercept would be "the best course of action"; however, he was not designated by the Attorney General or the County Prosecutor to approve such intercepts. M.W. and her mother signed a consent form, but it was not signed by anyone designated to approve consensual telephone intercepts. Nonetheless, believing they had the appropriate approval from the Director, the Assistant Prosecutor and Detective proceeded with the intercept. In the meantime, the Director contacted one of the Prosecutor's designees, the Chief Assistant Prosecutor, for approval of the intercept. Ten minutes later, and unbeknownst to the Assistant Prosecutor and Detective, the Chief Assistant Prosecutor gave his approval. However, by that time, the intercept had already concluded.

Defendant made inculpatory statements during the intercept. On the evening of September 19, 2009, the Prosecutor's Office obtained, served and executed a search warrant for defendant's home, and arrested him. A grand jury subsequently indicted defendant on twelve counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); sixteen counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3a.

Defendant filed a motion pursuant to N.J.S.A. 2A:156A-21 to suppress the telephone communication intercept and any evidence derived therefrom based on the State's failure to obtain prior approval as required by N.J.S.A. 2A:156A-4c. Relying on State v. Worthy, 141 N.J. 368 (1995), the trial judge found that the New Jersey Wiretapping and Electronic Surveillance Control Act (the Wiretap Act), N.J.S.A. 2A:156A-1 to -34, must be strictly interpreted and applied, and contains no good faith exception. The judge granted the motion, holding that the State's failure to obtain prior approval for the intercept, as required by N.J.S.A. 2A:156A-4c, rendered the intercept unlawful. This appeal followed.

On appeal, the State urges us to reverse because the Assistant Prosecutor reasonably believed that she had the appropriate approval for the intercept from the Director, time was of the essence due to the Division's involvement, any statutory violation was de minimus, the error was "ministerial and inadvertent," and the Director had received the designee's approval contemporaneously with the intercept. Alternatively, the State argues that the intercept is admissible under the inevitable discovery doctrine based on M.W.'s statement detailing defendant's crimes.

Where, such as here, a judge's decision involves a question of law, we review it de novo. See Pressler & Verniero, Current N.J. Court Rules, comment 3.1 on R. 2:10-2 (2012) ("[A]n appellate court owes no deference to the trial court's 'interpretation of the law and the legal consequences that flow from established facts . . . [.]'" (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995))). Based on our de novo review, we discern no reason to disturb the judge's ruling.

Our Supreme Court has recognized "the Legislature's deep and enduring concern for the privacy interests of individuals who are affronted by the interception of telephonic communications[,]" and that the Legislature passed the Wiretap Act "to maximize the protection of individual privacy." Worthy, supra, 141 N.J. at 379, 383; see also State v. Minter, 116 N.J. 269, 276 (1989). Based on the Legislature's concerns, the Court has consistently required the strict interpretation and application of the Wiretap Act. Worthy, supra, 141 N.J. at 379, 384; see also State v. Catania, 85 N.J. 418, 437 (1981) ("[T]his Court has strictly construed the Wiretap Act so as to afford maximum safeguards for individual privacy."); State v. Cerbo, 78 N.J. 595, 604 (1979) ("[T]he Wiretap Act constitutes an 'intrusion into individual rights of privacy' and should be strictly interpreted and meticulously enforced.") (citation omitted)); In re Wire Communication, 76 N.J. 255, 260 (1978) ("Wiretap statutes implicating as they do an intrusion into individual rights of privacy, constitutionally and legislatively recognized, should generally be strictly construed."). The Wiretap Act contains no exceptions, including good faith or inevitable discovery exceptions. Worthy, supra, 141 N.J. at 385, 389-92.

The Wiretap Act generally prohibits the purposeful interception of "any wire, electronic or oral communication[.]" N.J.S.A. 2A:156A-3a. There are certain exceptional circumstances in which a communication may be intercepted. N.J.S.A. 2A:156A-4. For example, it is not unlawful under the Wiretap Act for

[a]ny person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or his designee or a county prosecutor or his designee[.]

[N.J.S.A. 2A:156A-4c (emphasis added).]

Accordingly, an investigative or law enforcement officer may intercept a consensual telephone communication, but only if he or she obtains prior prosecutorial approval before conducting it. Worthy, supra, 141 N.J. at 379.

Failure to strictly comply with the Wiretap Act warrants suppression of the unlawfully obtained communication or evidence derived therefrom. N.J.S.A. 2A:156A-21a. If the motion is granted, the court must suppress the entire contents of the intercepted communication, which is determined to be in violation of the Wiretap Act, or evidence derived therefrom. N.J.S.A. 2A:156A-21.

Here, the Director had no authority to approve consensual telephone intercepts. Thus, it is irrelevant that he agreed to the intercept, or that the Assistant Prosecutor relied on his approval. Only the Attorney General, the County Prosecutor or their designees had the authority to approve the intercept, and that approval had to be obtained before directing the intercept, which did not occur here.

We reject the State's claim that the intercept was lawful because the Director had obtained the designee's approval "contemporaneously" with the intercept. The record establishes that ten minutes elapsed between the Director's and Assistant Prosecutor's conversation and the designee's approval, the Director obtained the designee's approval after the intercept began and concluded, and the Assistant Prosecutor and Detective were unaware of the approval prior to the intercept.

It is likewise irrelevant that there was an honest mistake or inadvertent error, some urgency in obtaining the communication, or that the State may have inevitably discovered the evidence through other means. The Wiretap Act contains no good faith or inevitable discovery exceptions. Accordingly, the judge properly granted defendant's motion to suppress.