The New Jersey Wiretapping Act is Held Constitutional

Today’s post is a guest post by Victor N. Metallo, MAE, MBA, JD, Adj. Professor of Business Law, Montclair State University

In State v. Ates, 213 N.J. 389 (2014), the Supreme Court unanimously upheld the New Jersey Wiretapping and Electronic Surveillance Control Act (“Wiretap Act)”, N.J.S.A. 2A:156A-1 to -37, as constitutional.  The opinion, written by Chief Justice Rabner, can be read here.

Defendant Edward Ronald Ates is serving a life sentence for the murder of his former son-in-law in Ramsey, New Jersey.  Ates, a Florida resident, was wiretapped by New Jersey law enforcement.  He moved before trial to suppress the conversations that he had with individuals located outside of New Jersey.  He argued that allowing investigators to wiretap his conversations violated his constitutional rights.

The Wiretap Act permits New Jersey law enforcement to execute a wiretap at any “point of interception” within the investigators’ jurisdiction, provided that a judge finds probable cause to believe that a serious crime was committed in New Jersey and that communications about the offense, in this case a murder, can be garnered through the wiretap.  Other state and federal courts have upheld similar laws on constitutional grounds.  They have ruled that as long as the “listening post” was within a court’s jurisdiction, motions to suppress recorded conversations that occurred out-of-state can be denied.

New Jersey authorities were permitted to wiretap six cell phone numbers, most belonging to residents of Florida and Louisiana who were connected with defendant, but not with New Jersey.  All of those numbers were monitored in New Jersey.  Defendant claimed that the wiretap orders were “extraterritorial” and that New Jersey law enforcement should have asked authorities in Florida and Louisiana to consent to the wiretaps, as they are required to do if they need to search a home outside New Jersey’s borders.  Defendant also claimed that the Wiretap Act should be declared unconstitutional because it “usurps” federal power and allows New Jersey authorities to wiretap individuals with no connection to New Jersey.

The Law Division rejected defendant’s constitutional argument.s  Defendant was convicted and the Appellate Division affirmed that conviction, also rebuffing the constitutional claims.  Defendant petitioned for certification, which was granted.  The Supreme Court unanimously affirmed.

Chief Justice Rabner held that the “Legislature’s focus on the ‘point of interception’ is a rational approach in the age of cell phones.  Because of the inherent mobility of cell phones, it would be impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents could only rely on orders issued in the state where a call was placed or received.  Under that type of scheme, a court order would lose its force as soon as a target crossed state lines with a cell phone in hand.”  The Court found persuasive the decisions of other courts, including federal courts under Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C. §§2510-2520, on which the Wiretap Act was modeled, on this subject as well.

In the end, the Court focused on the impracticality of obtaining warrants in multiple jurisdictions as the reason to uphold the law, rather than the traditional rule of jurisdiction predicated on the notion that persons have minimum contacts with the forum state.  The fact that the monitoring took place from within New Jersey and was related to a crime committed in New Jersey provided sufficient contacts to pass constitutional muster.