Roving Wiretaps Are Constitutional in New Jersey

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As law enforcement keeps getting more discretion to intrude into our personal privacy and as America becomes more of a police state just assume that the government is listening to your telephone conversations.

Forget about the Fourth Amendment in New Jersey.  The New Jersey Supreme Court chipped away a big piece of  it when they held that “roving wiretaps” do not run afoul of privacy protections guaranteed under the state and federal constitutions.

Under U.S. Constitution, Americans have the right “to be secure in their persons, houses, papers, and effects against unreasonable search and seizure.” As technology continues to advance, the definition of “unreasonable search” under the Fourth Amendment and the proper the balance between privacy and law enforcement are becoming increasingly less clear.

History of Wiretapping

While wiretapping is as old as telephones, its use by law enforcement was not significantly restricted until 1967. In Katz v. United States, the U.S. Supreme Court held that the Fourth Amendment extends to conversations in which individuals have a “reasonable expectation of privacy.” It also held that wiretapping constitutes a search and, therefore, law enforcement must obtain a warrant.

One year later, the federal government enacted Title III of the Omnibus Crime and Safe Streets Act, which established minimum standards for federal and state law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications.

In 1968, New Jersey also passed its own regulation, the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), which largely tracked the federal statute. Both laws were later amended to include “roving wiretap” provisions.

Under the more stringent New Jersey law, 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. In addition, New Jersey law requires the applicant to demonstrate the target’s purpose to thwart interception by changing facilities.

State v. Hector Feliciano

The New Jersey case, State of New Jersey v. Feliciano, considered whether police, under certain circumstances, can intercept communications on a newly discovered cell phone used by a suspect, without first returning to a judge. Defendant Hector Feliciano argued that the practice impermissibly delegates the task of finding probable cause to tap a phone to law enforcement and, therefore, eliminates the judicial oversight required under the New Jersey Constitution.

The New Jersey Supreme Court rejected the claim, although it did impose new warrant requirements going forward. According to the state’s highest court, when a suspect intentionally changes phones to avoid detection, law enforcement officers may begin to monitor the new cell phone under the State’s wiretap law. However, they must notify a wiretap judge within 48 hours of the switch and obtain authorization to continue monitoring the new phone.

“When a target purposefully changes facilities to avoid detection, he creates an inherent exigency that important evidence will be lost,” Chief Justice Stuart Rabner wrote. “We therefore find that law enforcement officers may switch over and begin to monitor a new facility under the state’s wiretap law.” To avoid “serious questions under the state constitution,” the court further held that law enforcement must notify a wiretap judge within 48 hours of the switch and obtain authorization to continue monitoring the new facility.

In reaching its decision, the court rejected the defendant’s argument that warrants should be updated prior to tapping the new phone because technology allows police to contact judges quickly. “[A] target’s purposeful choice to switch facilities in order to thwart interception…presents inherent exigency that critical evidence tied to a serious offense will be lost because of the target’s pointed, deliberate behavior,” the Chief Justice stated.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.