State v. Terry
66 A.3d 177
N.J. Super. Ct. App. Div.2013Background
- Savoy and Terry are spouses; wiretap orders targeted two cellphones used by Savoy in a drug distribution network.
- Intercepted communications include multiple calls and texts between Savoy and Terry about drug proceeds and payments.
- October 17, 2010: Savoy arranged with Terry to collect money from Chardel Holman; later that day heroin, cash, and cellphones were seized from Savoy's Lexus.
- A subsequent warrant led to a Lexus search recovering nearly twelve grams of heroin; offenses include conspiracy, possession with intent to distribute, and distribution of cocaine and heroin.
- State sought to admit two or three calls and five texts; defendants moved in limine to suppress as privileged marital communications.
- Trial court held no special need required for cellphone interception and recognized a crime-fraud exception to the marital privilege; on appeal, the court reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether special need is required to wiretap cellphones used by a married person. | Savoy/ Terry argued special need applies due to marriage. | Savoy/Terry contended interception violates Wiretap Act absent special need. | No special need required for cellphones. |
| Whether marital communications lose privilege when overheard by a wiretap and testified by a third party. | State contends privilege is lost when overheard via wiretap. | Savoy/Terry argue privilege remains despite interception and third-party testimony. | Privilege does not lose its character when intercepted; third-party testimony does not destroy privilege. |
| Whether New Jersey recognizes a crime-fraud exception to the marital communications privilege. | State maintained crime-fraud exception applies to marital privilege. | Privilege should not be subject to crime-fraud exception absent legislative/rulemaking action. | Court cannot create crime-fraud exception to marital privilege; rule announced reversal. |
| Whether the judiciary has authority to engraft a crime-fraud exception to the marital communications privilege. | State urged judicial creation of the exception. | Court lacks authority to modify statutorily created privileges. | Court lacks authority to add crime-fraud exception; remands with reversal. |
Key Cases Cited
- State v. Schubert, 212 N.J. 295 (2012) (plenary review of legal questions)
- Mauti, 208 N.J. 519 (2012) (limits judicial modification of statutory privileges)
- Byrd, 198 N.J. 319 (2009) (procedural controls for adopting evidence rules)
- Ospina, 239 N.J. Super. 645 (1990) (caution against extending privileges by judicial fiat)
- Szemple, 135 N.J. 406 (1994) (limits of confidentiality when third parties hear communications)
- Kahn v. United States, 415 U.S. 143 (1974) (marital communications debate at federal level)
- United States v. Ammar, 714 F.2d 238 (3rd Cir. 1983) (crime-fraud considerations in marital communications)