STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELYZE A. MINTER, A/K/A BOB MINTER, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued January 4, 1989—Decided August 4, 1989.
116 N.J. 269
We affirm the judgment of the Appellate Division.
For affirmance—Chief Justice WILENTZ and Justices STEIN, CLIFFORD, HANDLER, and O‘HERN—5
For reversal—None.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELYZE A. MINTER, A/K/A BOB MINTER, DEFENDANT-APPELLANT.
Argued January 4, 1989—Decided August 4, 1989.
The opinion of the Court was delivered by
O‘HERN, J.
This appeal requires us to balance interests of federalism in application of the New Jersey Wiretapping and Electronic Surveillance Control Act,
I
Preliminarily, we note that we do not deal here with “dirty business” undertaken by federal agents. Cf. Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 569, 72 L.Ed. 944, 953 (1927) (Holmes, J., dissenting). The record is clear here that the federal agent‘s actions were strictly in accordance with federal law. Hence no loss of judicial integrity is implicated in a decision to admit the evidence. See id. at 484, 48 S.Ct. at 574-75, 72 L.Ed. at 959 (Brandeis, J., dissenting). Rather, we see the question as turning on a weighing of the Legislature‘s purposes in regulating the wiretapping of New Jersey‘s citizens.
The Trenton detective then arranged to have Ellis meet two agents of the Federal Drug Enforcement Agency (DEA). The detective then communicated with the Mercer County prosecutor‘s office to advise the office that Ellis was an informant working for him. The detective continued thereafter to meet with the DEA to discuss Ellis’ role in the drug investigation.
One of the DEA agents met with Ellis on June 2, 1981, to have Ellis communicate with the defendant, Elyze A. Minter to purchase drugs. A telephone call was arranged between Ellis and the defendant on June 4, 1981, which was recorded. The call was placed from Morrisville, Pennsylvania, to the defendant‘s office in Trenton, New Jersey. After the telephone call, DEA instructed Ellis to meet with the defendant. Attempts to do so were unsuccessful. A meeting eventually was set up for June 15, 1981. Ellis met with the DEA agent and was instructed on what he was to say and ask for in setting up a purchase of drugs. This was to be a “controlled buy.” The informant was given money to purchase drugs from the defendant under DEA‘s surveillance. Although Ellis and defendant did meet on this occasion, no purchase of drugs was made.
On June 18, Ellis met again with the DEA agent in Morrisville to make another telephone call with the defendant. This was for another purchase of drugs. The call was recorded in a similar fashion as the previous conversation. During that telephone conversation, Ellis told the defendant he wanted to make a drug buy, but no meeting was set up.
Ellis never made a “controlled buy” from the defendant while under federal surveillance. Ellis maintains, however, that he
These proceedings followed, and the defendant was indicted for criminal possession of drugs with intent to distribute. Before trial, he moved to suppress the wiretap information. The motion was denied. A jury convicted defendant of conspiracy to distribute cocaine. Defendant received a sentence of three years probation conditioned on service of six months in the Mercer County Correction Center. On appeal, the Appellate Division affirmed his conviction. 222 N.J.Super. 521 (1988). Defendant challenged his conviction as based on unlawful and inadmissible wiretap evidence. Two members of the court affirmed his conviction, asserting that the New Jersey wiretap law did not have extra-territorial effect and could not control the conduct of the officers in Morrisville, Pennsylvania. Id. at 524-25. The concurring judge agreed with the result but viewed the search as valid because the New Jersey wiretap law regulated only the conduct of state law-enforcement agents and not federal agents and therefore did not render the evidence inadmissible in a state court proceeding. Id. at 527 (Brody, J., concurring). Additionally, the second issue raised on appeal was whether the trial court‘s exclusion of the prior convictions of the State‘s witness was prejudicial error. Both the trial court and Appellate Division found that the evidence of the informant‘s prior conviction was too remote and thus properly excluded under State v. Sands, 76 N.J. 127 (1978). 222 N.J.Super. at 527. We leave the prior-conviction ruling undisturbed and address only the wiretap issue. We granted the defendant‘s petition for certification. 111 N.J. 645 (1988).
II
Conceptually, this case presents the flip-side of Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957),
Current federal regulation of wiretaps followed the Supreme Court decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Berger, the Court held the permissive New York eavesdropping statute to be “too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and * * * therefore, violative of the Fourth and Fourteenth Amendments.” 388 U.S. at 44, 87 S.Ct. at 1876, 18 L.Ed.2d at 1044. The Court condemned “the statute‘s blanket grant of permission to eavesdrop without adequate judicial supervision or protective procedures.” Id. at 60, 87 S.Ct. at 1884, 18 L.Ed.2d at 1053. In Katz v. United States, supra, the Supreme Court made clear that the fourth amendment protected “people, not places,” holding that eavesdropping on a conversation in a telephone booth offended fourth amendment principles although there had been no trespass on the person‘s property. 389 U.S. at 351-53, 88 S.Ct. at 511-12, 19 L.Ed.2d at 582-83.
The Omnibus Crime Control and Safe Streets Act of 1968 (codified as amended by the Electronic Communications Privacy Act of 1986,
The federal wiretap act authorized states to enact wiretap laws of their own in conformity with certain basic requirements. New Jersey‘s wiretap law followed the federal pattern in some respects, but not all. Under New Jersey‘s law, the key guarantee of the right to privacy forbids even parties from surreptitiously recording telephone conversations when acting “at the direction of an investigative or law enforcement officer.”
At issue here is the exception that permits a party acting at the direction of a police officer to record a conversation. Under the federal wiretap law it is not unlawful for a person acting under the color of law to conduct a wiretap “where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”
The legislative history refers to a proposal that a court order, not merely prior authorization, should be required before an informant and agent tape a conversation. New Jersey Wiretapping and Electronic Surveillance Control Act: Hearings on S. 1417, 1096 Leg., 2d Sess. (1975) (V. I at 40, V. II at 45A). The two primary arguments law-enforcement officials made against requiring such an order were the difficulties with time delays and establishing probable cause. Id. V. II 42A-44A. One prosecutor offered the view that requiring a court order would be counter-productive because it would drive investigations into the less restrictive federal forum. Id. V. II at 45A-46A. Although this suggestion was met with silence, it may demonstrate why the Legislature chose the less stringent proposal requiring prosecutorial authorization. In its 1989 extension of the wiretap law, L.1989, c. 85, the Senate Judiciary Committee again rejected a request of the Association of Criminal Defense Lawyers that would have required law-enforcement officials to obtain a court order for consensual electronic surveillance. Schwaneberg, “Committee act to extend wiretap law until ‘94,” The Star-Ledger, Feb. 24, 1989, at 34, col. 1.
In any event, the federal agent here could do what the state agent could not. We must resolve, then, what the consequences are in state criminal proceedings. The questions thus
III
Is wiretap evidence obtained independently by federal officers in accordance with federal guidelines, but not state guidelines, admissible in a State prosecution?
A.
Obviously, the matter would be much simplified if the New Jersey wiretap law specifically addressed the question. For example, it has been held that in a federal criminal trial, evidence procured by state agents in violation of state law is inadmissible even though it would have been admissible if procured by federal agents. United States v. McNulty, 729 F.2d 1243, 1246 (10th Cir.1984) (en banc). This result is mandated by the statutory language. Under the federal act, aggrieved persons may suppress the contents of a wiretap that “was unlawfully intercepted.”
Like the federal act, New Jersey‘s wiretap law provides for the exclusion of evidence if “[t]he communication was unlawfully intercepted.”
Moreover, on its face the wiretap law does not prohibit the use of federally-obtained wiretap evidence. New Jersey‘s wiretap law includes in its definition of “investigative or law enforcement officer” only officers and prosecuting attorneys of the State of New Jersey or its political subdivisions.
B.
In otherwise determining whether evidence obtained by federal officers in accordance with federal law would be admissible in a state proceeding in circumstances in which a state officer‘s evidence would be inadmissible, we may seek guidance from courts that have resolved the evolving problems of federalism attendant to differing state and federal views concerning the validity of searches. Although it is difficult to think in such terms, it is necessary that we treat the federal government and its agents as officers of foreign jurisdictions for this choice-of-law analysis. See State v. Mollica, supra, 114 N.J. at 348.
The Minnesota Supreme Court, in State v. Lucas, 372 N.W.2d 731 (1985), set forth the varied approaches to resolving the admissibility of evidence in such circumstances. Id. at 736 (citing 1 W. LaFave, Search and Seizure § 1.3(c), at 52-56 (1978); Tullis & Ludlow, “Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the Exclusionary Rule,” 10 U.S.F.L.Rev. 67, 82-91 (1975)). We adopt Minnesota‘s excellent summary and conclusions:
Tullis and Ludlow identify three basic situations in which a defendant will move to suppress evidence seized in another jurisdiction: (1) where the evidence was illegally obtained under the law of the place of the search and where it would also be considered illegally obtained in the forum state if the search had occurred there; (2) where the evidence was illegally obtained under the law of the place of the search but where it would not be regarded as illegally obtained according to the law of the forum * * *; (3) where the seizure of evidence was valid under the law of the place where the search occurred but where it would be regarded as unlawful if it had occurred in the forum state. They argue that, following an exclusionary rule analysis, [1] the forum state should suppress the evidence in the first situation, [2] that the forum state should not suppress it in the second situation unless forum officers participated in the search in the
state where the search occurred, and [3] that the forum state should not suppress it in the third situation. * * * * * * * *
Professor LaFave argues also for an exclusionary rule analysis. He points out that the policy reasons underlying the exclusionary rule for violation of forum law do not necessarily apply with the same force to violations of the law of another state:
The prospect of deterrence is more remote as is the judicial taint from acceptance of the evidence, and there has been no profit from its own wrongdoing by the convicting jurisdiction. [Id. at 736-37 (citations omitted).]
In State v. Curry, 109 N.J. 1, 10-11 (1987), we noted the varied approaches that states had taken with respect to the issue.2 The better approach, we think, is the exclusionary-rule analysis set forth in State v. Lucas, supra, 372 N.W.2d 731. In New Jersey, we have viewed the exclusionary rule as serving both to deter unlawful conduct and to vindicate fundamental state guarantees. State v. Novembrino, 105 N.J. 95, 157 (1987). Using that analysis, absent participation by State officers in the search, no principles or policies of the exclusionary rule would call for the categorical exclusion from state court proceedings of wiretap evidence that has been obtained by federal officers in accordance with federal law but not state wiretap requirements.
It is clear that excluding wiretap evidence independently obtained by federal agents would not “deter unlawful conduct.”
Nevertheless, the question remains whether the exclusion of such evidence would “vindicate fundamental state guarantees.” The question of the extent of the guarantee necessarily depends on our interpretation of the intent of the Legislature in enacting the wire tap law. As noted, New Jersey‘s wiretap law does not specifically regulate wiretaps conducted in New Jersey by federal law enforcement officials because the provisions requiring law enforcement officers to obtain prior approval of the Attorney General apply only to state officials. We do not read into this legislation a clear legislative intent to control the conduct of federal law enforcement officials or to exclude evidence obtained by them through wiretaps permitted by federal law. We cannot conclude that the exclusion of such independently intercepted federal evidence is necessary to further the purposes of the wiretap law. Our holding is reinforced by the recognition that the underlying policy requiring Attorney General approval is a creature of statutory law. Cf. State v. Mollica, supra, 114 N.J. 329 (holding that toll records obtained by federal officials in violation of state constitutional rights can be used as evidence of probable cause to support a search warrant).
We are somewhat put off in this case by the happenstance that the interception was made just across the Delaware River. But we must consider the issue conceptually as though a California police officer, authorized by California law to intercept a Los Angeles phone conversation, happened to learn of a bomb plot in New Jersey. Would our Legislature intend that the information not be used to prosecute the offenders?
Since the State guidelines do not explicitly prohibit the use of independently-obtained federal wiretap evidence, and the enforcement of the State guidelines to exclude the evidence would not further privacy interests, such evidence need not be excluded. To hold otherwise “would disserve the principles of federalism and comity, without properly advancing legitimate state interests.” State v. Mollica, supra, 114 N.J. at 353.
IV
Is wiretap evidence obtained by federal agents acting in accordance with federal standards, but not state standards, admissible in a State prosecution if the federal agents were acting in cooperation with State agents?
Although neither the language of the wiretap law nor the exclusionary-rule doctrine calls for the exclusion of independently-obtained federal wiretap evidence in a State criminal proceeding, there is one aspect of this case that gives us pause. That is the question of cooperation between state and federal officers: If the wiretap evidence is not obtained independently, is this still the type of evidence that the Legislature would intend to be admissible in a state criminal proceeding?
First, we must be clear that this is not a “silver platter” case. In Elkins v. United States, 364 U.S. 206, 208, 80 S.Ct. 1437, 1439, 4 L.Ed.2d 1669, 1672 (1960), the Supreme Court rejected the “silver platter” doctrine, which allowed the prosecutor of one sovereign to use the fruits of an illegal search conducted by
[t]his case thus requires us to consider the implications of the silver platter doctrine and its key element: intergovernmental agency. An important aspect of this determination is whether for constitutional purposes the federal agents can be said to be acting under the “color of state law.”
The assessment of the agency issue necessarily requires an examination of the entire relationship between the two sets of government actors no matter how obvious or obscure, plain or subtle, brief or prolonged their interactions may be. The reasons and the motives for making any search must be examined as well as the actions taken by the respective officers and the process used to find, select and seize the evidence. [114 N.J. at 355-56.]
If a purpose of the investigation is for a State prosecution, the federal agents can, in effect, be deemed agents of the State prosecutors, thus subject to the provisions of
* * *
We may safely assume that the Legislature would not have intended that a joint strike force or investigative effort would adopt the least common denominator for its activity. “While overt collusion to circumvent state privacy laws is rare, * * * a state‘s right to provide its citizens greater protections and liberties than does the federal government” would be diminished by investigators seeking the lowest level. Note, “United States v. McNulty: Title III and the Admissibility in Federal Court of Illegally Gathered State Evidence,” 80 Nw.U.L.Rev. 1714, 1743, 1752 (1986). We emphasized this point in State v. Mollica, supra, when we reviewed decisions resolving “whether in any legally significant degree the federal action can or should be considered state action.” 114 N.J. at 355. Those criteria for evaluating the “symbiotic relationship” between
We recognize that it is neither the prerogative nor purpose of the New Jersey Legislature to establish standards for the conduct of federal agents, but rather to establish expectations of privacy among the citizens of New Jersey. Among the expectations that the Legislature may have intended, however, is that when state and federal agencies act in tandem, the evidence gathered to be used in state courts shall meet the measure of state standards. In other words, it shall satisfy the requirement that a prosecuting authority shall have determined that “there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception.”
The difficulty with this case is that the record does not fully develop the explanation why the county detective worked with the DEA to continue the investigation. As noted, the informant presented himself to the county authorities in order to obtain a more lenient sentence in connection with pending state proceedings. He was then turned over to the federal agents. The Appellate Division found, under the circumstances, no evidence of a cooperative undertaking. We think specific questions must be addressed with respect to the nature and purposes of the investigation: how the state officials became involved, why the evidence did not result in a federal prosecution, and whether there was an agreement that certain level cases would be state cases and others federal. In short, was the federal action “in any legally significant degree” to be considered state action?
To sum up, the effort to stanch the flow of drugs in our society requires intensive investigation at both state and feder-
The judgment of the Appellate Division is reversed and the cause remanded to the Law Division for determination of whether this was a joint undertaking sufficiently implicating the purposes of the New Jersey Wiretap Law and the privacy interests of its citizens such that the evidence should be suppressed.
POLLOCK, J., concurring in part and dissenting in part.
This case requires the Court to decide whether tapes of intercepted telephone conversations seized by federal enforcement officials in compliance with The Omnibus Crime Control and Safe Streets Act of 1968,
I agree with the majority to the extent it holds that the tapes of the intercepted telephone messages may be excluded from admission into evidence in the courts of this State if State and federal officials were acting in cooperation when the federal officials tapped defendant‘s telephone. I also agree that the Legislature could adopt legislation precluding the admission of wiretap evidence when it is obtained by federal officials acting alone and subsequently turned over to State officials. Ante at 276. My initial difference with the majority is that I believe the Legislature has already taken the necessary action to preclude the use of such evidence. Although I recognize that the Act does not expressly apply to federal officials, a fair reading of its provisions and legislative history leads me to conclude that the Legislature intended it to preclude the admission in the courts of this State of illegally-seized wiretap evidence whether that evidence was seized by State or federal officials.
In ascertaining whether the Legislature intended that result, one cannot ignore the breadth of the prohibition in
Except as otherwise specifically provided in this act, any person who:
a. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; or
b. Willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
c. Willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication;
shall be guilty of a misdemeanor and shall be fined not more than $10,000.00 or imprisoned not more than 5 years, or both. Subsections b and c of this section shall not apply to the contents of any wire or oral communication, or evidence derived therefrom, that has become common knowledge or public information.
The definition section of the Act,
Given that federal officers are “persons,” a fair reading of
Furthermore, I believe that wiretaps by the federal officers do not fit within one of the exceptions “specifically provided in
It shall not be unlawful under this act for:
* * * * * * * *
c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire 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 unless the Attorney General or his designee or a county prosecutor within his authority determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception * * *.
An “investigative or law enforcement officer” is defined in
Specific provisions of the Act govern the disclosure and exchange of wiretap information between federal and state law-enforcement officials.
Any investigative or law enforcement officer or other person who, by any means authorized by this act, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose or use such contents or evidence to investigative or law enforcement officers of this or another state, any of its political subdivisions, or of the United States to the extent that such disclosure or use is appropriate to the proper performance of his official duties. [Emphasis added.]
As originally enacted, the statute did not contain the phrase “or other person.” This omission, combined with the definition of “law enforcement officer,” which was restricted to State and
When revising
[a]ny person who, by any means authorized by the laws of another state or the Federal government, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to any investigative or law enforcement officer. [
18 Pa.Cons.Stat.Ann. § 5717(c) (emphasis added).]
If the New Jersey Legislature intended to allow wiretap evidence seized in this State by federal officers acting in conformity with federal law, it could have used language similar to that used in the Pennsylvania statute. Instead, the Legislature retained the provision that disclosure could occur only when the evidence was obtained “by any means authorized by this act.”
* * *
Contrary to the assertion of the majority, ante at 278, the conduct of federal officers is not being regulated. Accord Jones, supra, 30 Cal.App.3d at 854, 106 Cal.Rptr. at 751; Williams, supra, 94 Wash.2d at 538-40, 617 P.2d at 1017. Application of the Act to determine admissibility of the evidence in state courts does not affect the admissibility of that evidence in federal courts. Exclusion of the evidence from a state court proceeding would do no more than protect the integrity of that proceeding from evidence obtained in violation of state law. That conclusion is consistent with the Federal Wiretap Act, which recognizes that states may accord greater protection to the right of privacy than is accorded under the Federal Wiretap Act.
The Federal Wiretap Act was a response to privacy concerns raised by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1972), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976). The federal statute was designed with three primary congressional goals: (1) to establish a standard of admissibility of wiretap evidence for federal court proceedings; (2) to set a nationwide minimum standard for infringements upon citizens’ privacy; and (3) to allow the states to create state statutory schemes more protective of their citizens’ privacy than the federal minimum standard. See
Congress did not intend to preempt more protective state requirements. See, e.g., Catania, supra, 85 N.J. at 436; Barber, supra, 169 N.J.Super. at 30; see Marion, supra, 535 F.2d at 702; Conklin, supra, 12 Cal.3d at 266-73, 522 P.2d at 1053-58, 114 Cal.Rptr. at 245-50; State v. Farha, 218 Kan. 394, 400, 544 P.2d 341, 348 (1975); Vitello, supra, 367 Mass. at 245-47, 327 N.E.2d at 832-34; Williams, supra, 94 Wash.2d at 538-40, 617 P.2d at 1017. Consequently, the application of more restrictive state standards is consistent with congressional intent in the Federal Wiretap Act. Williams, supra, 94 Wash.2d at 538-40, 617 P.2d at 1017.
Until today, the courts of this State have strictly construed the New Jersey Act to afford maximum safeguards for individual privacy. See, e.g., Catania, supra, 85 N.J. at 437; State v. Cerbo, 78 N.J. 595, 604 (1979); In re Wire Communication, 76 N.J. 255, 260 (1978); State v. Molinaro, 117 N.J.Super. 276 (Law Div.1971), rev‘d on other grounds, 122 N.J.Super. 181 (App.Div.), certif. denied, 62 N.J. 574 (1973); State v. Sidoti, 116 N.J.Super. 70, 78 (Law Div.1971), rev‘d on other grounds, 120 N.J.Super. 208 (App.Div.1972). Underlying the strict construction of the Act is the principle that it implicates “an intrusion into individual rights of privacy * * *.” Catania, supra, 85 N.J. at 437. Exclusion of wiretap evidence seized by federal officers is consistent with the proper construction of the State and Federal Wiretap Acts. Implicit in the Court‘s decision is a subtle shift away from strict construction of the Act, with a correlative diminution of the privacy rights of all citizens. Whatever merit lies in that approach, it is inconsistent with the intent of the Legislature and our prior construction of the Act.
When illegally-seized evidence is used in state court proceedings, the judicial integrity of those courts is offended as much when the evidence is seized by a federal official as when it is seized by a state official. Precluding the use in state courts of evidence seized illegally by federal officials would not disturb principles of federalism. Those officials could continue to use that evidence in federal courts, assuming the use is permissible under federal law. State v. Mollica, 114 N.J. 329 (1989), is not to the contrary. In Mollica, we carefully eschewed deciding whether telephone records seized by federal officials consistent with federal law, but in violation of state law, could be admitted in state court proceedings. What we so carefully avoided in Mollica, however, is needlessly legitimized in today‘s decision. Under the majority‘s interpretation of the Act, the Court need not decide whether evidence seized by federal officials in violation of state law may be admitted in state court proceedings.
The appropriate remedy under the Act is the exclusion of the evidence of the wiretap.
Concurring in result—Justices CLIFFORD, POLLOCK and STEIN—3.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ALVIN MCCOY, DEFENDANT-RESPONDENT.
Argued February 14, 1989—Decided August 4, 1989.