procedures used to obtain authorization from the
Attorney General to consensually intercept conversations
amounts to an administrative rule, which falls within the
intra-agency exception to the Administrative Procedure
Act, N.J.S.A. 52:14B-1 et seq., and does not have to be
preceded by notice and a hearing. State v. Laurence, 259
N.J. Super. at 232.
b. Where the consenting party does not act under
color of law to intercept a wire or oral communication, the
interception is likewise exempted from the Act unless the
communications are intercepted or used for the purpose
of committing a criminal or tortuous act in violation of
the Constitution or laws of the United States or of New
Jersey or for the purpose of committing an injurious act.
N.J.S.A. 2A:156A-4d; see also State v. Gora, 148 N.J.
Super. 582, 591 (App. Div. 1977). Moreover, by statute,
simply because a person is a telephone subscriber does
not constitute consent to authorize the interception of
communications among parties which does not include
such person on that telephone. N.J.S.A. 2A:156A-4d.
- It is also not unlawful for any investigative or law
enforcement officer to intercept a wire, electronic, or oral
communication, if the officer is a party to the
communication, or where another officer who is a party
to the communication requests or requires him to make
an interception. N.J.S.A. 2A:156A-4b. For a listing of
other exceptions, see N.J.S.A. 2A:156A-4e to i.
VII. POSSESSION, SALE, ETC. OF INTERCEPT-
ING DEVICES (N.J.S.A. 2A:156A-5)
Except as provided in N.J.S.A. 2A:156A-6, any
person who purposely possesses, sells, distributes,
manufactures, assembles or advertises an electronic,
mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily
useful for the purpose of the interception of a wire,
electronic, or oral communication is guilty of a third
degree crime. N.J.S.A. 2A:156A-5.
VIII. EXCEPTIONS TO N.J.S.A. 2A:156A-5
(N.J.S.A. 2A:156A -6)
Pursuant to N.J.S.A. 2A:156A-6, a provider of a wire
or electronic communication service, or its officer, agent,
or a person under contract with such a provider, the
United States, a state or a political subdivision thereof,
acting in furtherance of the appropriate activities of the
United States, a state or political subdivision, or the
provider of wire or electronic communications service, are
exempt from the applicability of N.J.S.A. 2A:156A-5.IX. WIRETAPPING DEVICES SUBJECT TO
SEIZURE AND FORFEITURE (N.J.S.A. 2A:156A-
7 )
Pursuant to N.J.S.A. 2A:156A-7, any electronic,
mechanical, or other device possessed, used, sent,
distributed, manufactured, or assembled in violation of
the Act may be seized and forfeited to the State.X. PERSONS AUTHORIZED TO APPLY FOR
AN ORDER TO INTERCEPT COMMUNICA-
TIONS AND OFFENSES THAT MAY BE
INVESTIGATED BY MEANS OF INTERCEPT-
ING WIRE COMMUNICATIONS (N.J.S.A.
2A:156A-8)
A. The Attorney General, a county prosecutor, or a
person so designated to act for such an official and to
perform his or her duties during their absence or
disability may authorize, in writing, an ex parte
application to a judge for an order authorizing the
interception of a wire, or electronic or oral
communication by the law enforcement agency which
may provide evidence of the offenses as listed in the Act.
See N.J.S.A. 2A:156A-8. Persons authorized to apply for
such orders must exercise mature judgment involving
consideration of fundamental individual rights to
determine whether those rights should be subjugated in
the name of law enforcement. State v. Travis, 125 N.J.
Super. 1, 11 (Law Div. 1973), aff’d, 133 N.J. Super. 326
(App. Div. 1975).B. The county prosecutor may, in certain circumstances,
such as in times of physical absence or disability, appoint
a qualified person as acting prosecutor with powers of
office, who may invoke and authorize wiretap
applications under the Act. State v. Travis, 125 N.J.
Super. at 9-10; see also State v. Burstein, 172 N.J. Super.
388, 398 (App. Div. 1980), aff’d, 85 N.J. 394 (1981).
However, when such a delegation of authority is
challenged on a motion to suppress, the State will be
required to come forward with evidence to demonstrate
that such delegation was necessary and justified in the
situation presented. State v. Travis, 125 N.J. Super. at 9;
cf. State v. Cocuzza, 123 N.J. Super. 14, 21-22 (Law Div.
1973) (the court observed that the Act does not allow
such delegation on an ad hoc basis, but rather, requires
that such delegation be restricted to instances in which
the substitute prosecutor is a person empowered to