This appeal from the denial of a petition for post-conviction relief (PCR) presents a novel statutory construction question under the current version of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act). Pursuant to N.J.S.A. 2A:156A-4(c), law enforcement officers may intercept and record a telephonic communication when a party to the conversation allows them to listen in on the phone call. Recordings made under this provision are known as "consensual interceptions." While a consensual interception does not require prior judicial approval in the form of a wiretap order, N.J.S.A. 2A:156A-4(c) requires police to obtain the prior approval of the Attorney General or designee, or a county prosecutor or designee. In this appeal, the court addresses whether prior prosecutorial approval must be in writing.
The court concludes that nothing in the plain text, legislative history, or case law interpretation of the Wiretap Act requires prior approval of consensual interceptions be made in writing. The court deems it especially noteworthy that the plain text of N.J.S.A. 2A:156A-4(c) stands in stark contrast to the plain text of the Wiretap Act section governing the internal law enforcement procedure for getting approval to apply to a wiretap judge for an interception order. N.J.S.A. 2A:156A-8 explicitly provides that the Attorney General, county prosecutor, or a person designated to act for such an official . . . may authorize, in writing, an ex parte application to a judge." (Emphasis added). The court reasons that provision confirms the Legislature knows how to specify when Attorney General/county prosecutor/designee prior approval must be in writing but chose not to include that requirement with respect to approving a request to conduct a consensual interception.
The court concludes the Legislature did not intend to impose procedural requirements regarding prosecutorial approval of consensual interceptions other than the two conditions expressly articulated in the statutory text: (1) the approval be made by a person designated by the Attorney General or county prosecutor, and (2) such approval be given prior to initiating the consensually-intercepted telephonic communication. Because the record shows the prosecutor complied with both requirements, the court affirms the denial of defendant's PCR petition.