NJ: A “roving wiretap” from an authorized phone to a new phone is valid under the Fourth Amendment and Title III with after the fact notice to court

A “roving wiretap” from an authorized phone to a new phone is valid under the Fourth Amendment, Title III, and state law provided the judge issuing the order is notified within 48 hours. State v. Feliciano, 2016 N.J. LEXIS 229 (March 9, 2016):

HELD: When a target purposely changes facilities to avoid detection, law enforcement officers may switch over and begin to monitor a new facility under the State’s wiretap law, provided they have otherwise fully complied with the statute. Going forward, law enforcement must notify a wiretap judge within 48 hours of the switch and obtain authorization to continue monitoring the new facility.

1. The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures. It states that warrants must be supported by probable cause and must “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The New Jersey Constitution contains nearly identical language. N.J. Const. art. I, ¶ 7. (pp. 16-18)

2. The Fourth Amendment governs electronic interception of phone conversations. In 1968, Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520, established standards for law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. Soon after, New Jersey enacted the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), N.J.S.A. 2A:156A-1 to -26, modeled after Title III. In 1986, Congress amended Title III and added the “roving wiretap” provision. From 1986 to 1998, Title III authorized roving wiretaps if “the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities,” among other requirements. 18 U.S.C.A. § 2518(11)(b)(i)-(iii) (1986) (amended 1998) (emphasis added). New Jersey added a roving wiretap provision in 1993, which closely tracked then-existing federal law. Congress amended Title III in 1998, easing the requirements to obtain a roving wiretap, but the State Legislature did not follow suit. It maintained the original, stricter standard that requires the State to show the target has a “purpose … to thwart interception.” New Jersey also did not add a proximity requirement. Thus, under the Act, an application for a roving wiretap must specify the original facility, but not the character and location of the phone the target jumps to. The application must identify the target whose communications are to be intercepted. And, under New Jersey law, the applicant must demonstrate the target’s purpose to thwart interception by changing facilities. (pp. 18-24)

3. To assess defendant’s claim that the Wiretap Act violates the particularity requirement, the Court gives careful consideration to federal decisions interpreting the federal statute because New Jersey’s Wiretap Act is modeled after Title III. Four federal circuit courts have considered similar challenges, and each rejected the claim. Given that federal case law does not support defendant’s position, the Court focuses on the heightened protections that Article I, Paragraph 7 of the State Constitution affords. (pp. 24-27)

4. The orders in this case, at the initial stage, do not present the concerns raised in State v. Marshall, 199 N.J. 602 (2009), a case on which defendant relies heavily. In Marshall, this Court concluded that a warrant failed to satisfy the particularity requirement because it included conditional language that allowed the police to determine which apartment to search after the warrant was issued, thereby “delegate[ing] to the police” the role of determining probable cause. Id. at 613. Here, by contrast, the wiretap judge initially found probable cause to monitor a particular facility, and that a particular target — who was identified in the application — had a purpose to thwart interception by changing facilities. Marshall’s concerns, though, surface when a target moves beyond the original, listed phone. Under the Act, law enforcement officers have the sole authority to identify the new facility that a target has switched to, and to elect to intercept communications over it, without returning to the court. There are public safety concerns underlying that approach. Simply put, if officers could not continue to monitor the new phone, they would lose important evidence. That exigency can justify interception of a new facility without first returning to a judge. (pp. 27-30)

5. If a court receives timely information about a target’s move to a new facility soon after the switch takes place, a neutral judge can authorize continued interception or halt a wiretap if necessary. To avoid serious questions under the State Constitution, the Court directs that certain procedures be followed going forward, including that the State must notify the wiretap judge within 48 hours after it begins interception of a new facility. (pp. 31-34)

6. Defendant also challenges the wiretap orders entered in this case because they permitted interception twenty-four hours a day, seven days a week. N.J.S.A. 2A:156A-12 provides that “[n]o order entered under this section shall authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances.” (emphasis added). The statute also requires that reasonable efforts be made to reduce the hours of interception, whenever possible. Here, the court’s orders directed the Task Force to make reasonable efforts to reduce the hours of interception whenever possible, and, under the circumstances, there was no abuse of discretion in allowing 24/7 monitoring in the investigation. Recognizing that the nature of a large-scale narcotics distribution ring may involve unpredictable hours that can justify 24/7 interception in certain cases, the preferred practice is to specify more limited hours of interception in a wiretap order whenever possible. (pp. 34-38)

. . .

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.