During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders pursuant to the New Jersey Wiretapping and Surveillance Control Act, N.J.S.A. 2A:156A-1 to – 37 (Wiretap Act), authorizing the interception of communications between the codefendant spouses. State v. Gargano, ___ N.J. Super ___, ___ (App. Div. 2023) (slip op. at 2). The State Police intercepted 306 privileged marital communications between the codefendant spouses, and also intercepted numerous other non-privileged communications among the alleged participants in the drug distribution network. Id. at ___ (slip op. at 5).
The spousal codefendants moved to suppress all the wiretap interceptions, including the non-privileged communications. Id. at ___ (slip op. at 6). The trial court denied the motion finding that the crime-fraud exception to the marital communications privilege in N.J.R.E. 509, as amended, applied retroactively, and thus the interceptions were not unlawful because the communications were made in furtherance of ongoing or future crimes. Id. at ___ (slip op. at 7).
The codefendants moved for reconsideration, arguing that the New Jersey Supreme Court’s subsequent holding in State v. Bailey 251 N.J. 101, 127 (2022), that the amendment to N.J.R.E. 509 adding the crime-fraud exception was not retroactive, undermined the trial court’s reliance on the exception as the basis for its determination that interception of the privileged marital communications between the codefendants did not violate the Wiretap Act.
The trial court granted the motion and issued an order suppressing the entire contents of the wiretap under N.J.S.A. 2A:156A-21. Id. at ___ (slip op. at 9-10).
The Appellate Division granted the motion for leave to appeal and affirmed. Id. at ___ (slip op. at 2). The Appellate Division held that “[b]ased on the plain language of the Wiretap Act and the circumstances presented,” the trial court “correctly determined suppression of the non-privileged interceptions is mandated under N.J.S.A. 2A:156A-21, which broadly requires 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 and authorization.” Id. at ___ (slip op. at 2-3).
The Appellate Division explained that “[t]he Wiretap Act does not expressly state that interception of privileged communications is either unlawful or requires the suppression remedy under N.J.S.A. 2A:156A-21.” Id. at ___ (slip op. at 16). In fact, “the plain language of N.J.S.A. 2A:156A-11 includes a Legislative declaration that privileged communications [including marital privilege information] may be intercepted ‘in accordance with’ the requirements of the Wiretap Act.” Id. at ___ (slip op. at 17-18).
However, the Appellate Division set forth that “[t]he distinction between interceptions of privileged communications that are in accordance with the Wiretap Act and not unlawful under N.J.S.A. 2A:156A-21(a), and those that are unlawful, rests on the State’s fulfillment of its ‘strict’ statutory obligation ‘to minimize or eliminate the interception of . . . communications not otherwise subject to interception.’” Id. at ___ (slip op. at 21) (quoting Facebook, Inc. v. State, 254 N.J. 329, 349 (2023)). “Minimization is an affirmative obligation under the Wiretap Act and is rooted in the Fourth Amendment’s protection of individual privacy against unreasonable searches.” Id. at ___ (slip op. at 22). “Determining whether an interception otherwise authorized by the wiretap orders constitutes privileged marital communications necessarily requires that the officers engage in intrinsic minimization, which mandates an analysis of the communications ‘on a call-by-call basis . . . .’” Id. at ___ (slip op. at 22-23) (quoting Facebook, Inc., 254 N.J. at 349).
In Gargano the Appellate Division found that the undisputed facts established the State failed to take any action to minimize the interceptions in a manner limited to determining whether any of the 306 communications between the codefendants were privileged marital communications. Id. at ___ (slip op. at 25). Under those circumstances, the Appellate Division was convinced the interceptions of the 306 privileged marital communications were unlawful as violative of the Wiretap Act’s minimization requirement, and thus all of the intercepted communications were subject to suppression. Id. at ___ (slip op. at 26-27).
Moreover, the fact that the State Police officers held a “good-faith belief” the crime-fraud exception “would apply” to their interception of the codefendants communications did not undermine the appellate court’s determination that the interceptions were unlawful within the meaning of N.J.S.A. 2A:156A-21(a) and violated the wiretap orders under N.J.S.A. 2A:156A-21(c). Id. at ___ (slip op. at 27). “A good-faith interception under the Wiretap Act saves only the wiretap monitors from liability under N.J.S.A. 2A:156A-25; it does not rescue the State from suffering the deterrent effect of exclusion under N.J.S.A. 2A:156A-21.” Id. at ___ (slip op. at 27-28).
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 The case has not yet been included in the reporter so citations are to the official version of the case located at https://www.njcourts.gov/system/files/court-opinions/2023/a1230-22.pdf