The use of wiretapping in Ocean and Monmouth counties of New Jersey was relatively rare until about seven years ago. Their use has gained considerable traction since then.
One superior court judge who was assigned his first wire case four years ago remarked at our first court date that he had not seen wiretaps since all those mob figures were locked up in the 80s.
In Ocean and Monmouth counties, I have seen it conducted continuously during the past seven years. Oftentimes, one investigation leads right into the next when an individual with a link to the target of the current investigation becomes the target in the next investigation.
There are relatively few published cases that address the myriad of issues that are unique to wiretap cases. The few court opinions that do exist were by and large published decades ago, before the advent of the cell phone and numerous other advances in the technology used by both the investigators and the targets of the investigations.
Relative Lack of Wiretapping Case Law
As a result of this relative lack of case law, there are wiretap issues in New Jersey that to this day have never been decided.
One issue that comes to mind relates to the service of “an inventory.” The inventory requirement of our voluminous wiretap statute states that certain persons whose conversations were intercepted are to be given notice that they were in fact monitored and recorded during a wiretap investigation. The requirement relates to alleged co-conspirators and innocent parties alike. Innocent parties can be anyone that you would expect a target of the investigation to speak to over the phone, including his grandmother, attorney, or the restaurant employee who picks up the phone when he orders take-out.
While most federal and state court jurisdictions do not require the suppression of evidence as a result of law enforcement’s failure to serve an inventory, at least one state, Connecticut, requires that all the evidence derived from the wiretap be thrown out of court if the inventory is not served. The Connecticut Court reasoned that before the State may use the fruits of its wiretap, it must follow the important dictates of the statute that permitted it to wiretap in the first place.
That approach is the only way to ensure the integrity of the wiretap statute and the functioning of the judiciary with respect to it. The case is Connecticut v. Formica, 3 Conn. App. 477 (Conn App. 1985).
New Jersey has not yet decided the inventory issue, along with scores of other issues.
Moreover, significant changes in the technology used by investigators and criminal targets alike, necessitate that the few issues that were decided decades ago should be reconsidered.
For an example of how technology has changed, look no further than the slew of published case cases involving the use of something referred to as a “public pay phone.”