NJ Appellate Court Upholds Suppression in Wiretap Case

State of New Jersey v. Dennis Gargano, Jr. & Clarence Grant

Docket No. A-1230-22

Decided August 28, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent published opinion, the Appellate Court of New Jersey was tasked with determining whether the trial court correctly determined the State’s interception of privileged marital communications between codefendant spouses Clarence D. Grant and Nicole Villa-Grant during the execution of wiretap orders issued pursuant to the New Jersey Wiretapping and Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act), requires suppression of all other non-privileged communications intercepted following the first interception of a privileged marital communication.

As part of its investigation of a suspected Ocean County drug operation in 2015, the New Jersey State Police applied for wiretap orders authorizing interception of electronic communications on four phone facilities — cellular phones — one of which was subscribed to Grant’s spouse, Villa-Grant, another of which was subscribed to codefendant James Gorman, and the remaining two of which were subscribed to other individuals who were suspected participants in the alleged drug distribution operation. On February 27, 2015, the court granted the State Police’s application and entered four separate wiretap order for each cellular phone. The orders authorized wiretap interceptions of electronic communications for a period of 20 days starting at 4:00 p.m. on February 27, 2015.

On March 20, 2015, the State Police sought and obtained, a 30 day extension of the wiretap orders for three of the four cellular phones, as well as a 30 day wiretap order for an additional cellular phone subscribed to an individual not previously identified in the initial wiretap order application. The court authorized thirty-day extensions of the wiretap orders for three of the four phones covered by the February 27, 2015 order, including the phone subscribed to Villa-Grant, and an initial thirty-day order allowing wiretap interceptions on the fourth newly-added phone. The orders included a requirement the wiretap interceptions “end as soon as practical and be conducted in a way as to minimize or eliminate the interception of communications other than the type described” in the order.

During the course of the wiretap operation, the state police intercepted over 300 privileged marital communications between defendants. However, the police also intercepted non-privileged communications among the participants in the drug distribution network. Defendants were charged with first-degree conspiracy to distribute drugs among other offenses.

Defendants filed a motion to suppress the wiretap interceptions following the February 27, 2015 initial interception of a privileged marital communication between Grant and Villa-Grant. Defendants argued that the interception of privileged marital communications was unlawful under the Wiretap Act, violated the minimization requirement attendant to all wiretap orders, and therefore required suppression under N.J.S.A. 2A:156A-21. The statute mandates suppression of “the entire contents of all intercepted, wire, electronic, and oral communications obtained during or after any interception which is determined to be in violation of” the Wiretap Act, as either “unlawfully intercepted” or intercepted in a manner “not in conformity with the order or authorization or in accordance with the requirements of” N.J.S.A. 2A:156-12.

After considering the arguments of both sides, the trial court denied defendants’ motion to suppress, articulating that at the time the marital communications were intercepted under the wiretap orders, N.J.R.E. 509 provided a privilege for such communications. However, the court, noted that effective November 9, 2015, following the initial interception of the marital communication between Grant and Villa-Grant, N.J.R.E. 509 was amended to include a crime-fraud exception to the marital communications privilege. Since the court determined that the crime-fraud exception in the amended N.J.R.E. 509 applied retroactively, interceptions of marital communications on February 27, 2015, and thereafter, were not unlawful because the communications were made in furtherance of ongoing or future crimes.

Three years later, defendants filed a motion for reconsideration after the New Jersey Supreme Court held that the crime-fraud exception did not apply retroactively. The trial court granted reconsideration of the suppression motion, ruling that the appropriate remedy for the unlawful interception of privileged marital communications was to suppress the entire contents of the wiretap following the first intercepted marital communication. The State appealed.

On appeal, the State contended that the trial court erred in its interpretation and application of N.J.S.A. 2A:156A-21 which in pertinent part bars the introduction in evidence of communications, and the evidence derived therefrom, that were “unlawfully intercepted” or intercepted in a manner “not in conformity with the order or authorization or in accordance with the requirements of” N.J.S.A. 2A:156A-12.

The Appellate Court agreed with the State’s argument and found that the interception of Grant and Villa-Grant’s privileged marital communications on February 27, 2015 were not per se “unlawful” under subsection (a) of N.J.S.A. 2A:156A-21. The court indicated that the plain language of the Wiretap Act does not support a construction that the mere interception of a privileged communication constitutes an “unlawfully intercepted” communication under N.J.S.A. 2A:156A-21(a). However, the Appellate Court ultimately held that the interceptions of the 306 privileged marital communications were unlawful as violative of the Wiretap Act’s minimization requirement. The court determined that the interceptions in the present case were unlawful because the State failed to engage in the required minimization of intercepts of privileged communications to avoid interception of privileged communications not otherwise authorized by the Wiretap Act. Thus, the court affirmed the trial court’s decision.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining appealing motions to suppress wiretap communications obtained unlawfully. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendants in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.




Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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