XV. EMERGENCY SITUATIONS (N.J.S.A.
2A:156A-13)
Upon informal application by an authorized
applicant, a judge may determine that an emergency
situation exists that involves the investigation of
conspiratorial activities involving organized crime or the
immediate danger of death or serious bodily injury to a
person, and thus, may grant verbal approval for an
interception, conditioned upon the filing of a formal
written application within 48 hours. N.J.S.A. 2A:156A-
- The interception must immediately terminate when
the communication sought is obtained or when the
application for an order is denied. Id. In the event no
formal written application is made, the contents of the
intercepted communication shall be treated as having
been obtained in violation of the Act. Id.
XVI. RECORDING, DUPLICATING, CUS-
TODY, SEALING ,DESTRUCTION, INSPEC-
TION AND DISCLOSURE OF INTERCEPTED
COMMUNICATIONS (N.J.S.A. 2A:156A-14 TO
20)
A. Recording and Duplicating
The intercepted communication shall, if practicable,
be recorded in such a way as will protect it from editing
or other alteration. N.J.S.A. 2A:156A-14. Duplicates
may by made for purposes of disclosure. Id. In State v.
Sullivan, 244 N.J. Super. 357, 365 (App. Div. 1990), the
court found that suppression of evidence of unrecorded
communications, and evidence derived therefrom, could
be an appropriate judicially-fashioned sanction for a
section 14 recording violation. However, the court
further held that the sanction does not extend to
excluding evidence after such a violation has been
remedied. Id. Thus, where the State failed to record
conversations due to the malfunction of equipment
during a wiretap, suppression of conversations
intercepted and recorded after the malfunction had been
corrected did not require suppression. Id. at 359-62.
B. Custody and Sealing
Immediately upon expiration of the order, including
extensions and renewals, the tapes, wires, or other
recordings are to be transferred to the judge who issued
the order and then shall be sealed; custody is to be
maintained wherever the court directs. N.J.S.A.
2A:156A-14. The import of this statute is two-fold: to
protect the integrity of the tapes and to protect
investigees from possible overreaching. State v. Gerardo,
234 N.J. Super. 614, 617 (Law Div. 1988). Failure to
comply with § 14 sealing procedures requires exclusion
of the recordings from evidence. State v. Cerbo, 78 N.J.
595, 603 (1979).A delay in sealing is tantamount to the absence of a
seal and the statutory requirement that there be a
satisfactory explanation for such absence is applicable to
a delay in sealing. Id. at 601. The relief occasioned by
the absence of an immediately placed seal on a completed
wiretap or a satisfactory explanation for its delay is the
non-admissibility of its contents. Id. at 602-603.
However, this rule, as enunciated in Cerbo, was not to be
applied retroactively. State v. Burstein, 85 N.J. 394, 410-
11 (1981); cf. State v. Tanchalk, 177 N.J. Super. 551,
553-55 (App. Div. 1981) (sealing may occur upon
expiration of the original order or the expiration of any
extension or renewal, where the interception is made
continuous by the subsequent orders); State v. Schultz,
176 N.J. Super. 65, 67 (App. Div. 1980)(recording of
phone conversations between a defendant and a third
party obtained with consent of the third party was not
subject to sealing requirement). Note, that if the judge
who authorized the initial order is unavailable, sealing
can be obtained from any authorized judge. State v.
Barrise, 173 N.J. Super. 549, 551 (App. Div. 1980), aff’d,
85 N.J. 394, 402, n. 2 (1981).C. DestructionIntercepted communications, applications, and
orders may not be destroyed, except upon a court order,
and in any event, must be kept for 10 years. N.J.S.A.
2A:156A-14; see also N.J.S.A. 2A:156A-15.D. InspectionThe Act contemplates reasonable discovery in a
pretrial and trial setting. State v. Braeunig, 122 N.J.
Super. 319, 329 (App. Div. 1973). Within a reasonable
time, but not later than 90 days after the termination
date, or extension or renewal period, or the date of denial
of the order, the judge shall serve upon all pertinent
persons, as identified in the Act, an inventory containing
the following: notice of and date of entry of the order (or
of its denial), the time period of authorization (or of its
disapproval), and the fact as to whether communications
were intercepted or not. N.J.S.A. 2A:156A-16a to d.The court in its discretion and in the interests of
justice, may make portions available for such persons’ or
their attorneys’ inspection. N.J.S.A. 2A:156A-16. In