State vs. Hector Feliciano NJ Supreme Court Decision – Continued use of a Roving Wiretap!

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

The key in this ROVING WIRE TAP CASE IS AS FOLLOWS:

State vs Hector Feliciano

The court found the New Jersey legislature, when it did not adopt the eased ‘proximity’ language from the federal counterpart, this state maintained the original, stricter standard that requires the State to show the target has a “purpose . . . to thwart interception.”   Thus, under the Act, a) an application for a roving wiretap must specify the original facility, but not the character and location of the phone the target jumps to, b) the application must identify the target whose communications are to be intercepted, and c) under New Jersey law, the applicant must demonstrate the target’s purpose to thwart interception by changing facilities.

The court, opined, from this day forward: If a court receives timely information about a target’s move to a new facility soon after the switch takes place, a neutral judge can authorize continued interception or halt a wiretap if necessary. To avoid serious questions under the State Constitution, the Court directs that certain procedures be followed going forward, including that the State must notify the wiretap judge within 48 hours after it begins interception of a new facility. (pp. 31-34)

Finally, the court stated, that when there is a roving wiretap, it Recognizes the nature of a large-scale narcotics distribution ring may involve unpredictable hours that can justify 24/7 interception in certain cases.  However, the preferred practice is to specify more limited hours of interception in a wiretap order whenever possible. (pp. 34-38)  In this case, the use of the 24/7 wiretap language was not an abuse of the court’s discretion.

The summary:

In this appeal, the Court considers the constitutionality of the “roving wiretap” provision of the State’s wiretap law, which allows the police, under certain circumstances, to intercept communications on a newly discovered telephone facility used by the target, without first returning to a judge, N.J.S.A. 2A:156A-9(g)(2).

In November 2007, the Camden County Prosecutor’s Office and members of the Philadelphia/Camden High Intensity Drug Trafficking Area Task Force began to investigate a heroin trafficking network in Camden. During the investigation, law enforcement officials applied for ten wiretap orders. Eight of the orders included “roving” provisions, two of which were activated by the police.

Afterward, law enforcement officials notified the wiretap judge about the switch to both new facilities. Over time, the police intercepted numerous calls between defendant and others about buying and selling narcotics, the quality of the drugs, and related issues. Ultimately, the Task Force arrested twenty-four individuals; the grand jury indicted defendant and ten others. The indictment charged defendant as a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3. Defendant was also charged with two first-degree counts of possession with intent to distribute and distribution of heroin, cocaine, MDMA/ecstasy, and marijuana, and second-degree conspiracy to distribute those drugs.

Defendant moved to suppress the evidence obtained from the wiretaps. He argued that A) the orders failed to protect his constitutional rights because they were overly broad and allowed the police to intercept facilities that were not specified. The judge denied the motion, finding that each wiretap application fulfilled the requirements of N.J.S.A. 2A:156A-9 and was properly authorized.

The judge also rejected defendant’s claim that, by allowing 24/7 interception, the wiretap orders were too broad. The court found that the orders were justified by the unpredictable nature of the narcotics conspiracy and the minimization requirements imposed.

Defendant also moved to dismiss the count of the indictment that alleged that he was a leader of a narcotics trafficking network. The trial court denied the motion concluding that the State presented “more than adequate” evidence to support a prima facie case.

Defendant pleaded guilty to leading a narcotics trafficking network, and the State dismissed the remaining charges.

Defendant appealed, claiming the court erred when it denied his motions to suppress the wiretap evidence and dismiss a count of the indictment. He argued that a) the roving wiretap statute is unconstitutional because it does not satisfy the particularity requirement and that the wiretap orders improperly permitted 24/7 surveillance. He also claimed that the b) State failed to present sufficient evidence to the grand jury that he was a leader of a narcotics trafficking network. The Appellate Division rejected defendant’s arguments and affirmed his conviction.

The Court granted defendant’s petition for certification. 222 N.J. 311 (2015).

HELD: When a target purposely changes facilities to avoid detection, law enforcement officers may switch over and begin to monitor a new facility under the State’s wiretap law, provided they have otherwise fully complied with the statute. Going forward, law enforcement must notify a wiretap judge within 48 hours of the switch and obtain authorization to continue monitoring the new facility.

  1. The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures. It states that warrants must be supported by probable cause and must “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The New Jersey Constitution contains nearly identical language. N.J. Const. art. I, ¶ 7. (pp. 16-18) 2
  1. The Fourth Amendment governs electronic interception of phone conversations. In 1968, Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520, established standards for law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. Soon after, New Jersey enacted the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), N.J.S.A. 2A:156A-1 to -26, modeled after Title III. In 1986, Congress amended Title III and added the “roving wiretap” provision. From 1986 to 1998, Title III authorized roving wiretaps if “the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities,” among other requirements. 18 U.S.C.A. § 2518(11)(b)(i)-(iii) (1986) (amended 1998) (emphasis added). New Jersey added a roving wiretap provision in 1993, which closely tracked then-existing federal law. Congress amended Title III in 1998, easing the requirements to obtain a roving wiretap, but the State Legislature did not follow suit. It maintained the original, stricter standard that requires the State to show the target has a “purpose . . . to thwart interception.” New Jersey also did not add a proximity requirement. Thus, under the Act, an application for a roving wiretap must specify the original facility, but not the character and location of the phone the target jumps to. The application must identify the target whose communications are to be intercepted. And, under New Jersey law, the applicant must demonstrate the target’s purpose to thwart interception by changing facilities. (pp. 18-24)
  2. To assess defendant’s claim that the Wiretap Act violates the particularity requirement, the Court gives careful consideration to federal decisions interpreting the federal statute because New Jersey’s Wiretap Act is modeled after Title III. Four federal circuit courts have considered similar challenges, and each rejected the claim. Given that federal case law does not support defendant’s position, the Court focuses on the heightened protections that Article I, Paragraph 7 of the State Constitution affords. (pp. 24-27)
  1. The orders in this case, at the initial stage, do not present the concerns raised in State v. Marshall, 199 N.J. 602 (2009), a case on which defendant relies heavily. In Marshall, this Court concluded that a warrant failed to satisfy the particularity requirement because it included conditional language that allowed the police to determine which apartment to search after the warrant was issued, thereby “delegate[ing] to the police” the role of determining probable cause. Id. at 613. Here, by contrast, the wiretap judge initially found probable cause to monitor a particular facility, and that a particular target — who was identified in the application — had a purpose to thwart interception by changing facilities. Marshall’s concerns, though, surface when a target moves beyond the original, listed phone. Under the Act, law enforcement officers have the sole authority to identify the new facility that a target has switched to, and to elect to intercept communications over it, without returning to the court. There are public safety concerns underlying that approach. Simply put, if officers could not continue to monitor the new phone, they would lose important evidence. That exigency can justify interception of a new facility without first returning to a judge. (pp. 27-30)
  1. If a court receives timely information about a target’s move to a new facility soon after the switch takes place, a neutral judge can authorize continued interception or halt a wiretap if necessary. To avoid serious questions under the State Constitution, the Court directs that certain procedures be followed going forward, including that the State must notify the wiretap judge within 48 hours after it begins interception of a new facility. (pp. 31-34)
  1. Defendant also challenges the wiretap orders entered in this case because they permitted interception twenty-four hours a day, seven days a week. N.J.S.A. 2A:156A-12 provides that “[n]o order entered under this section shall authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances.” (emphasis added). The statute also requires that reasonable efforts be made to reduce the hours of interception, whenever possible. Here, the court’s orders directed the Task Force to make reasonable efforts to reduce the hours of interception whenever possible, and, under the circumstances, there was no abuse of discretion in allowing 24/7 monitoring in the investigation. Recognizing that the nature of a large-scale narcotics distribution ring may involve unpredictable hours that can justify 24/7 interception in certain cases, the preferred practice is to specify more limited hours of interception in a wiretap order whenever possible. (pp. 34-38)
  2. Finally, the Court rejects defendant’s claim that the State did not present sufficient evidence before the grand jury to support the charge that he was a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3. The trial judge carefully reviewed the grand jury record and found that the State presented ample evidence to support each element of the offense. (pp. 38-42).  This is a State v. Hogan factual argument.
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