course of their duties is also not an intercepting device
within the intent or purpose of the Act. State v.
McDermott, 167 N.J. Super. 271, 277 (App. Div. 1979);
see also Scott v. Scott, 277 N.J. Super. 601, 608 (Ch. Div.
1994) (“extension phone exception” of federal statute
permits a parent to intercept their minor child’s
telephone conversations by use of an extension phone in
the family home). Furthermore, where a telephone
subscriber alerted the police after inadvertently hearing
strange voices on a malfunctioning telephone, and the
police upon invitation listened in on the telephone and
recorded gambling oriented conversations by means of a
tape recorder attached with a suction cup and induction
coil to the back of the telephone receiver, the
malfunctioning telephone was not an “intercepting
device,” and therefore, was not an interception within the
purview of the Act. State v. McCartin, 135 N.J. Super. 81,
87-88 (Law Div. 1975). The Act does not apply to
recorded silent video surveillance or the video portion of
a videotape, which includes a sound component. State v.
Diaz, 308 N.J. Super. 504, 512 (App. Div. 1998). Thus,
a parents’ act of installing video surveillance equipment
in their home to videotape a babysitter did not implicate
federal or state constitutional concerns, absent any
involvement of the government or its agents. Id. at 506-
507, n. 1.
C. Intercept (N.J.S.A. 2A:156A-2c)
Without the use of an intercepting device, an
overhearing is not an “intercept” within the meaning of
the Act. State v. McDermott, 167 N.J. Super. at 277. If
there is no interception, there is no violation of the Act.
State v. McCartin, 135 N.J. Super. at 88. For instance, an
unindicted coconspirator’s recording of his telephone
conversations with the defendant by use of a tape recorder
and special adapter attached to the telephone receiver did
not constitute an “intercept” for purposes of the Act.
State v. Gora, 148 N.J. Super. 582, 590-91 (App. Div.),
certif. denied, 74 N.J. 275 (1977). “[T]he use of...
recording apparatus to record what is lawfully overheard
does not convert the overhearing or recording into a
proscribed interception.” State v. McDermott, 167 N.J.
Super. at 280. In fact, “[a] tape recorder is a mere
accessory to better memorialize the overheard
conversation.” State v. McCartin, 135 N.J. Super. at 88-
89.
The taping of one’s own telephone conversations
with another is also not an “intercept” within the
meaning of the Act. State v. Gora, 148 N.J. Super. at 590-
- However, it is unlawful and a violation of the Act to
tape the conversations of others, including one’s spouse
without their consent, when the spouse or person taping
the conversation is not a party to the conversation. State
v. Lane, 279 N.J. Super. 209, 218 (App. Div), certif.
denied, 141 N.J. 94 (1995).Monitoring of telephone calls made by a prison
inmate on an inmate group telephone, where monitoring
equipment was furnished by the telephone company in
the ordinary course of business, and was used by
correction officers in the ordinary course of their duties,
did not constitute an “interception” within the meaning
of the Act thereby requiring court authorization. State v.
Fornino, 223 N.J. Super. 531, 545-46 (App. Div.), certif.
denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109
S.Ct. 152 (1988); see also State v. Vandever, 314 N.J.
Super. 124, 127-28 (App. Div. 1998) (a defendant who
is properly administered Miranda warnings, does not
need to be told by the police that he is being tape
recorded or video recorded; there is also no violation of the
Act). However, the Act was applicable to an interception
of telephone conversations that originated from an out-
of-state telephone, where the phone calls involved
conversations with a person in New Jersey, and the
interception was undertaken to investigate criminal
activity in New Jersey. State v. Worthy, 141 N.J. 368, 380
(1995).V. ELEMENTS DEFENDANT MUST SHOW TO
PROVE UNLAWFUL ELECTRONIC SURVEIL-
LANCE
If a defendant claims that he has been subjected to an
unlawful electronic surveillance, the defendant then has
the burden to allege facts which reasonably led him to
believe that he has been subjected to such a surveillance,
and must further allege a proprietary, possessory, or
participating interest in the place where the
conversations were supposed to have been seized. State v.
Chaitkin, 135 N.J. Super. 179, 188 (Law Div. 1975),
aff’d, 164 N.J. Super. 93 (App. Div. 1978), certif. denied,
79 N.J. 494 (1979). The allegations must be reasonably
precise, and they should set forth, insofar as practicable,
the dates of suspected surveillance, and the identities of
the persons, their telephone numbers and the facts relied
upon which allegedly link the suspected surveillance to
the trial proceedings. Id.In State v. Tirelli, 208 N.J. Super. 628, 637-38 (App.
Div. 1986), a law enforcement officer was convicted for
unlawfully intercepting privileged conversations be-
tween an attorney and his client, a jailed suspect. The