XVII. MOTION TO SUPPRESS THE CON-
TENTS OF AN INTERCEPTED COMMUNICA-
TION (N.J.S.A. 2A:156A-21)
A motion to suppress the contents of an intercepted
communication must be made at least 10 days before
trial. N.J.S.A. 2A:156A-21. To suppress the
communication, the aggrieved person must show one of
the following: (1) the communication was unlawfully
intercepted; (2) the order of authorization was
insufficient on its face; or (3) the interception was not
made in conformity with the order of authorization or in
accordance with N.J.S.A. 2A:156A-12. See generally,
State v. Dye, 60 N.J. 518, cert. denied, 409 U.S. 1090, 93
S.Ct. 699 (1972); State v. Murphy, 137 N.J. Super. 404
(Law Div. 1975), rev’d o.g., 148 N.J. Super. 542 (App.
Div. 1977); State v. Sidoti, 120 N.J. Super. 208 (App.
Div. 1972).
If the motion is granted, the “entire contents” of all
intercepted communications obtained during or after
any interception which has been determined to be in
violation of the Act, or evidence derived from it, is not
admissible at trial, hearing, or any other proceeding.
N.J.S.A. 2A:156A-21. Thus, all evidence derived from
the illegal interception, which includes conversations
recorded by the interception, conversations recorded
after the unlawful interception, and other evidence
derived from the interception, shall be excluded. State v.
Worthy, 141 N.J. 368, 387 (1995). The State maintains
the right to appeal from the granting of a motion to
suppress. N.J.S.A. 2A:156A-21.
Not every failure to comply with the Act mandates
suppression of the interception. State v. Worthy, 141 N.J.
at 381; State v. Sullivan, 244 N.J. Super. 357, 363 (App.
Div. 1990); State v. Murphy, 148 N.J. Super. 542, 547-
48 (App. Div. 1977); State v. Sidoti, 134 N.J. Super. 426,
429-30 (App. Div. 1975). Violation of a procedural
requirement of the Act triggers the suppression remedy
only for those statutory requirements considered
“critical.” State v. Worthy, 141 N.J. at 381; State v. Cerbo,
78 N.J. 595, 603 (1979); State v. Sullivan, 244 N.J.
Super. at 363.
For example, in State v. Sullivan, supra, the State’s
failure to record conversations due to a malfunction of
wiretap equipment violated the Act, but did not require
suppression of the conversations intercepted and
recorded after the malfunction had been corrected. Id. at
361-62; see also State v. Burstein, 85 N.J. 394, 413-14
(1981) (holding that when tapes are suppressed because
of a sealing violation, evidence derived from other
wiretaps or search warrants based on those tapes is
nevertheless admissible at trial where the derivative
wiretap or search warrant was authorized prior to the
sealing violation that tainted the tapes and made their
integrity suspect).For specific technical violations ruled insufficient to
warrant suppression, see State v. Parisi, 181 N.J. Super.
117, 120 (App. Div. 1981) (authorization forms for
consensual telephonic interceptions lost or misplaced);
State v. Luciano, 148 N.J. Super. 551, 555 (App. Div.
1977) and State v. Cirillo, 146 N.J. Super. 577, 585 (App.
Div. 1977) (omission of the defendant’s name from the
order); State v. Sidoti, 134 N.J. Super. at 429-30
(inadvertent delay in service of inventory); State v.
Sanchez, 149 N.J. Super. 381, 390 (Law Div. 1977)
(failure to provide issuing judge with the names of
individuals unnamed in intercept orders but overheard
during electronic surveillance for service of inventory
purposes); see also State v. Laurence, 259 N.J. Super. 225,
233 (Law Div. 1992)(orders of authorization were not
deficient where forms for the consensual interception of
communications were orally approved by the Attorney
General’s designee).To find that evidence was obtained by means
sufficiently independent of an illegal wiretap to dissipate
any taint of illegal police conduct, the court must weigh
three factors: temporal proximity between the illegal
conduct and the challenged evidence; the presence of
intervening circumstances; and the flagrancy and
purpose of the police misconduct. State v. Worthy, 273
N.J. Super. 147, 155 (App. Div. 1994), aff’d, 141 N.J.
368 (1995).In State v. Minter, 116 N.J. 269, 283 (1989), the
Supreme Court held that State investigators may not
circumvent the law by merely bringing in federal agents
and having them tap a phone. However, if the wiretap
evidence is obtained by federal agents pursuant to federal
law, but does not satisfy State standards under the Act, it
does not necessarily result in suppression. Id. at 278.
However, when the relationship between federal and
state agents implicate the concerns that prompted the
special requirements of the Act, the wiretap evidence
would be inadmissible in the State proceeding. Id. at
271.