During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37. By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse. The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization. N.J.S.A. 2A:156A-21(a) and (c).
The court affirms the order based on its interpretation of the Act. The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509. The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders.
The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy. The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy.
The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization. The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis.