State of New Jersey v. Dennis F. Gargano, Jr.

• Court: New Jersey Superior Court Appellate Division
• Decided: August 28, 2023
• Docket: A-1230-22
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1230-22

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. August 28, 2023 APPELLATE DIVISION DENNIS F. GARGANO, JR. and CLARENCE D. GRANT,

Defendants-Respondents. _____________________________

Argued May 17, 2023 – Decided August 28, 2023

Before Judges Vernoia, Firko and Natali.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 17-02-0034.

William P. Cooper-Daub, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; William P. Cooper-Daub, of counsel and on the briefs).

Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for respondent Clarence D. Grant (Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs; Glenn D. Kassman, Designated Counsel, on the briefs). Patricia Colligan, Designated Counsel, argued the cause for respondent Dennis F. Gargano, Jr. (Joseph E. Krakora, Public Defender, attorney; Patricia Colligan, on the briefs).

The opinion of the court was delivered by

VERNOIA, J.A.D.

This appeal requires that we consider 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. Based

on the plain language of the Wiretap Act and the circumstances presented, we

conclude the court correctly determined suppression of the non-privileged

interceptions is mandated under N.J.S.A. 2A:156A-21, which broadly requires

suppression of "the entire contents of all intercepted wire, electronic[,] or oral

communications obtained during or after any interception" that is "unlawfully

A-1230-22 2 intercepted" or "not made in conformity with" the wiretap order and

authorization.1

I.

The facts pertinent to a disposition of the issues presented on appeal are

not disputed. In 2015, the New Jersey State Police investigated a suspected

Ocean County drug distribution operation. The 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 orders, one for each of the four cellular

phones. The orders identically required the interceptions "shall 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 herein . . . ."

The orders authorized wiretap interceptions of electronic communications over

1 As we explain, the State does not challenge the court's suppression of the intercepted, privileged, marital communications. See N.J.S.A. 2A:156A-11 (providing in part, "[n]o otherwise privileged wire, electronic[,] or oral communication intercepted in accordance with, or in violation of, the provisions of [the Wiretap Act], shall lose its privileged character.").

A-1230-22 3 the phones for a period of twenty-days commencing at 4:00 p.m. on February

27, 2015.

On March 20, 2015, the State Police sought, and obtained, a thirty-day

extension of the wiretap orders for three of the four cellular phones, 2 as well as

a thirty-day wiretap order for an additional cellular phone subscribed to an

individual not previously identified in the initial wiretap order application.

The application submitted in support of the extension of the February 27, 2015

wiretap orders explained that wiretap interceptions from the phone subscribed

to Villa-Grant revealed "Grant distributes cocaine, prescription pills,

marijuana[,] and heroin, and directs subordinates to solicit both buyers of

cocaine and to distribute cocaine and prescription pills[,]" and that "Grant's

wife," Villa-Grant, and another individual, conspired with Grant to "thwart law

enforcement" and "assist[] with narcotics transactions."

In its March 20, 2015 orders granting the State Police's 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 court entered separate

2 The State Police did not seek or obtain an extension of the wiretap order for Gorman's cellular phone.

A-1230-22 4 orders for each 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.

On February 27, 2015, within hours of the issuance of the initial wiretap

orders, the State Police intercepted what it concedes was the first of what

turned out to be 306 privileged marital communications between spouses Grant

and Villa-Grant through April 16, 2015. Following the February 27, 2015

interception of the first privileged marital communication between Grant and

Villa Grant, and through April 16, 2015, the State Police intercepted numerous

other non-privileged communications among the alleged participants in the

drug distribution network that, according to the State, are evidential of the

various defendants' — including Grant's and Dennis F. Gargano, Jr.'s —

commission of crimes for which they have been charged.

As a result of the evidence developed during the State Police

investigation, a grand jury returned an indictment charging: Grant with first -

degree leader of a drug distribution network, N.J.S.A. 2C:35-3; Grant and

Gorman with first-degree conspiracy to distribute a controlled dangerous

substance (CDS), cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(1), -5(c), and N.J.S.A.

2C:2-6; Grant, Villa-Grant, Gorman, Gargano, and two others with second-

A-1230-22 5 degree conspiracy to distribute CDS, cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(1),

-5(c), and N.J.S.A. 2C:5-2; Grant, Gargano, and two others with conspiracy to

commit burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:20-3, and N.J.S.A. 2C:5-2;

Villa-Grant with third-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a); and Grant, Gorman, and another individual with third-degree

possession of CDS, cocaine, N.J.S.A. 2C:35-10(a)(1).

In a motion filed on behalf of Villa-Grant, and joined by Grant and

Gargano, they sought suppression of all the wiretap interceptions following the

February 27, 2015 initial interception of a privileged marital communication

between Grant and Villa-Grant. They argued interception of the 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. As noted, 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

A-1230-22 6 the order or authorization or in accordance with the requirements of" N.J.S.A.

2A:156-12.3 N.J.S.A. 2A:156A-21.

The court denied the motion. In its written statement of reasons, the

court explained that, at the time the marital communications were intercepted

under the wiretap orders, N.J.R.E. 509 provided a privilege for such

communications. The court, however, 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. 4 L. 2015, c. 138, § 2, eff. Nov. 9,

2015.

The court determined the crime-fraud exception in the amended N.J.R.E.

509 applied retroactively, and, for that reason, 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. The court reasoned interception of the marital communication was

3 N.J.S.A. 2A:156A-12 prescribes the requirements for "[e]ach order authorizing the inception of any wire, electronic[,] or oral communication" issued under the Wiretap Act. 4 The November 9, 2015 amendment to N.J.R.E. 509 added paragraph (2)(e), which provides that "[t]here is no [marital communications] privilege . . . in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication." N.J.S.A. 2A:84A-22(2)(e).

A-1230-22 7 therefore not unlawful under the Wiretap Act and did not require suppression

under N.J.S.A. 2A:156A-21 of the non-privileged interceptions that followed

it. The court later denied defendants' joint motion for reconsideration.

Three years later, Gargano filed a motion, which Grant joined, for

reconsideration of the order denying the motion to suppress the non -privileged

wiretap communications under N.J.S.A. 2A:156A-21.5 They argued the

Supreme Court's holding in State v. Bailey — that the 2015 amendment to

N.J.R.E. 509 adding the crime-fraud exception was not retroactive, 251 N.J.

101, 127 (2022) — undermined the trial court's previous reliance on the

exception as the basis for its determination that interception of the privileged

marital communications between Grant and Villa-Grant did not violate the

Wiretap Act. Gargano and Grant claimed the court erred by finding

suppression of all the intercepted non-privileged communications following

the first interception of a privileged marital communication between Grant and

Villa-Grant was not required under N.J.S.A. 2A:156A-21.

The State conceded the Court's holding in Bailey warranted

reconsideration of the order denying the suppression motion. The State agreed

all 306 intercepted marital communications between Grant and Villa-Grant

5 Villa-Grant did not join in the motion because she had resolved the charges against her. She is not a party to this appeal.

A-1230-22 8 were privileged and inadmissible at trial because the communications had been

intercepted prior to the amendment to N.J.R.E. 509 adding the crime-fraud

exception. The State, however, argued interception of the communications

was authorized by the wiretap orders and interception of the privileged

communications are not per se unlawful under the Wiretap Act. See N.J.S.A.

2A:156A-11 (addressing issues related to interception of privileged

communications).

Although conceding the intercepted marital communications were

inadmissible under N.J.S.A. 2A:156A-11, the State claimed suppression of the

intercepted non-privileged communications under the wiretap orders was not

required or permitted under N.J.S.A. 2A:156A-21. The State also argued the

State Police acted reasonably and in good faith in the extrinsic and intrinsic

minimization of the wiretap communications.

The court granted the reconsideration motion, finding the initial

February 27, 2015 intercepted privileged marital communication, and the 305

intercepted privileged marital communications that followed until April 16,

2015, were "unlawfully intercepted" under the Wiretap Act and "not made in

conformity with the order of authorization or in accordance with the

requirements of" N.J.S.A. 2A:156A-12. See N.J.S.A. 2A:156A-21(a) and (c).

The court reasoned that under N.J.S.A. 2A:156A-21's plain language, "[t]he

A-1230-22 9 only appropriate remedy is the suppression of those 306 calls together with the

entire contents of the wiretap from" the interception of the privileged marital

communication on February 27, 2015, and thereafter, "including all evidence

derived therefrom."

We granted the State's motion for leave to appeal. The State presents the

following arguments for our consideration:

POINT I

THE AUTHORIZED INTERCEPTION OF COMMUNICATIONS BETWEEN CO- CONSPIRATOR SPOUSES WAS LAWFUL AND DID NOT JUSTIFY SUPPRESSING NEARLY THE ENTIRE WIRETAP.

A. The Wiretap Suppression Hearings and [the Motion Court's] Ruling.

B. Intercepting a Communication that Is Subsequently Shielded from Admission by an Evidentiary Privilege Is Not a Wiretap Act Violation.

C. A Rule that Intercepting a Communication Found to Be Privileged Violates the Wiretap Act Would Be Unworkable.

D. The Judge's Suppression Decision Had No Other Logical or Legally Sound Justification.

II.

The State's appeal is founded on claims the court erred in its

interpretation of the Wiretap Act. More particularly, the State challenges the

A-1230-22 10 court's 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.

"'Questions of statutory interpretation are legal ones' that we review 'de

novo, "unconstrained by deference to the decisions of the trial court . . . ."'"

State v. Bernardi, 456 N.J Super. 176, 186 (App. Div. 2018) (quoting State v.

S.B., 230 N.J. 62, 67 (2017)). We also review de novo a trial court's

application of the law to undisputed facts. State v. Hagans, 233 N.J. 30, 37-38

(2018).

Our interpretation of the Wiretap Act, and more particularly N.J.S.A.

2A:156A-21, is guided by well-established principles of statutory construction.

Our objective in interpreting a statute "'is to effectuate legislative intent,' and

'[t]he best source of direction on legislative intent is the very language used by

the Legislature.'" Bozzi v. City of Jersey City, 248 N.J. 274, 283 (2021)

(quoting Gilleran v. Twp. of Bloomfield, 227 N.J. 159, 171-72 (2016)); see

also DiProspero v. Penn, 183 N.J. 477, 492 (2005) ("The Legislature's intent is

the paramount goal when interpreting a statute[,] and, generally, the best

indicator of that intent is the statutory language."). We must also "strive[] for

A-1230-22 11 an interpretation that gives effect to all the statutory provisions and does not

render any language inoperative, superfluous, void[,] or insignificant." In re

DiGuglielmo, 252 N.J. 350, 360 (2022) (second alteration in original) (quoting

Sanchez v. Fitness Factory Edgewater, LLC, 242 N.J. 252, 261 (2020)).

Additionally, we "read and construe[]" the words and phrases of a statute

in "their context," and "unless inconsistent with the manifest intent of the

[L]egislature or . . . [a] different meaning is expressly indicated," we must give

the words and phrases "their generally accepted meaning, according to the

approved usage of the language." N.J.S.A. 1:1-1. We do not read words and

phrases "in isolation[,]" but instead "read them in context, along 'with related

provisions[,] . . . to give sense to the legislation as a whole.'" State v. A.M.,

252 N.J. 432, 451 (2023) (quoting DiProspero, 183 N.J. at 492).

"If the plain language" of a statute "leads to a clear and unambiguous

result, then the interpretative process should end, without resort to extrinsic

sources." State v. D.A., 191 N.J. 158, 164 (2007). Stated differently, "[w]hen

the text of a statute is clear, the court's job is over." A.M., 252 N.J. at 451.

Our interpretation of N.J.S.A. 2A:156A-21 is also guided by principles

that uniquely apply to the Wiretap Act. In 1979, our Supreme Court

explained, "the Wiretap Act constitutes an 'intrusion into individual rights of

privacy' and should be strictly interpreted and meticulously enforced." State v.

A-1230-22 12 Cerbo, 78 N.J. 595, 604 (1979) (citation omitted). More recently, the Court

reiterated that "[c]ourts must strictly construe the . . . Wiretap Act to protect

individual privacy rights." Facebook, Inc. v. State, 254 N.J. 329, 350 (2023);

see also State v. Worthy, 141 N.J. 368, 379 (1995) (explaining "strict

interpretation and application of the" Wiretap Act is required based on "the

Legislature's deep and enduring concern for the privacy rights of individuals

who are affronted by the interception of telephonic communications.").

N.J.S.A. 2A:156A-21 bars admission in evidence of "the entire contents

of all intercepted wire, electronic[,] or oral communications obtained during or

after any interception which is determined to be in violation of" the statute's

subsections (a) through (c). N.J.S.A. 2A:156A-21. Subsection (a) requires

suppression of communications that are "unlawfully intercepted[.]" N.J.S.A.

2A:156A-21(a). Subsection (b) requires suppression of communications that

are intercepted pursuant to an "order of authorization [that] is insuffici ent on

its face[.]" N.J.S.A. 2A:156A-21(b). Subsection (c) requires suppression

where "[t]he interception was not made in accordance with the order of

authorization or in accordance with the requirements of" N.J.S.A. 2A:156A -

12. N.J.S.A. 2A:156A-21(c). As noted, N.J.S.A. 2A:156A-12 sets forth the

required terms on a wiretap order.

A-1230-22 13 The parties do not dispute the scope of N.J.S.A. 2A:156A-21's

suppression remedy. The statute plainly states that "all" intercepted

communications, and evidence derived therefrom, that are obtained "during or

after" an interception made in violation of subsections (a) through (c), shall not

be introduced in evidence at any trial, hearing, or proceeding. N.J.S.A.

2A:156A-21. As the Court explained in Worthy, following a 1975 amendment

to N.J.S.A. 2A:156A-21, "[a] plain and strict reading of the amended statute

supports the proposition that all evidence derived from the illegal interception

— the conversations recorded by that interception, conversations recorded

after the unlawful interception, and other evidence 'derived' from the illegal

interception — shall be excluded" from evidence at any trial, hearing, or

proceeding prosecuted thereafter. 6 141 N.J. at 387.

6 Prior to the 1975 amendment, the original version of N.J.S.A. 2A:156A -21 provided in pertinent part that, if a motion to suppress evidence was granted based on a violation of subsections (a) through (c), "the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall not be received in evidence in the trial, hearing[,] or proceeding." L. 1968, c. 409, § 21, eff. Jan. 1, 1969. The 1975 amendment revised section 21 and added in part the words "entire" and "all" thus clarifying and broadening the scope of the suppression-of-evidence remedy under the statute. Under the amendment, the statute provided: "the entire contents of all intercepted wire or oral communications obtained during or after any interception which is determined to be in violation of this act under subsections a., b., or c. above, or evidence derived therefrom, shall not be received in evidence in the trial, hearing[,] or proceeding." L. 1975, c. 131, § 10, eff. June 30, 1975 (emphasis added).

A-1230-22 14 The State claims the statutory bar to the introduction of intercepted

communications and the evidence derived therefrom is inapplicable here

because the February 27, 2015 initial interception of a privileged marital

communication between Grant and Villa-Grant, and the subsequent

interception of 305 additional privileged marital communications, were neither

intercepted "unlawfully" in violation of subsection (a) of N.J.S.A. 2A:156A -21

nor "not made in conformity with the" wiretap orders "or in accordance with"

N.J.S.A. 2A:156A-12 under subsection (c) of N.J.S.A. 2A:156A-21.7 The

State argues the trial court erred by concluding otherwise.

We agree with the State 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. That is, the

interception of a privileged electronic or wire communication alone does not

require suppression of all subsequent interceptions and the evidence derived

therefrom under N.J.S.A. 2A:156A-21.

7 Defendants did not argue before the trial court and do not argue on appeal that interceptions and the evidence derived therefrom should be suppressed as a result of the interception of privileged marital communications based on a claim under subsection (b) of N.J.S.A. 2A:156A-21 that the wiretap order "is insufficient on its face." We therefore do not address that subsecti on of the statute.

A-1230-22 15 The Wiretap Act does not define the term "unlawfully intercepted" in

subsection (a) of N.J.S.A. 2A:156A-21. In State v. Novembrino, the Court

suggested "unlawfully intercepted" under subsection (a) means "unauthorized

or inconsistent with the statute[.]" 105 N.J. 95, 149 (1987). The "generally

accepted meaning[s]" of "unlawful" and "unlawfully," "according to the

approved usage of the language[,]" N.J.S.A. 1:1-1, include "[n]ot authorized

by law; illegal[,]" Black's Law Dictionary 1850 (11th ed. 2019); "[c]riminally

punishable[,]" ibid.; and "not lawful[,]" Merriam-Webster's Collegiate

Dictionary 1370 (11th ed. 2020).

We are not persuaded the Wiretap Act may be properly interpreted to

require application of the mandatory suppression remedy in N.J.S.A. 2A:156A -

21 simply because a privileged communication is intercepted. 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).

The Wiretap Act does not expressly state that interception of privileged

communications is either unlawful or requires the suppression remedy under

N.J.S.A. 2A:156A-21. And the Wiretap Act includes a provision, N.J.S.A.

2A:156A-11, expressly addressing the interception of privileged

communications, but it does not state or suggest that interception of a

A-1230-22 16 privileged communication is prohibited or is otherwise unlawful under the

Wiretap Act.

To the contrary, N.J.S.A. 2A:156A-11 prescribes a procedure for

obtaining a wiretap order for interception of communications from facilities —

including phones — subscribed to individuals, including attorneys-at-law,

licensed physicians, licensed practicing psychologists, practicing clergy,

newspaper persons, and in "place[s] used primarily for habitation by" a

married couple. Thus, the Legislature made express and special provision for

the interception of communications that could reasonably be expected to

include privileged communications, N.J.S.A. 2A:156A-11 but the statute does

not prohibit the interception of such privileged communications or declare

such interceptions unlawful.

Moreover, N.J.S.A. 2A:156A-11 makes further provision for the

interception of privileged communications. The statute includes an express

acknowledgement that interceptions of privileged communications are within

the contemplation of the Wiretap Act. N.J.S.A. 2A:156A-11 provides that

"[n]o otherwise privileged wire, electronic[,] or oral communication

intercepted in accordance with, or in violation of, the provisions of [the

Wiretap Act], shall lose its privileged character." (emphasis added). Stated

differently, the plain language of N.J.S.A. 2A:156A-11 includes a Legislative

A-1230-22 17 declaration that privileged communications may be intercepted "in accordance

with" the requirements of the Wiretap Act. That declaration cannot be

logically reconciled with an interpretation of N.J.S.A. 2A:156A-21 that

renders every interception of a privileged communication unlawful under

subsection (a), triggering the statute's suppression-of-evidence remedy. We

may not read the statute to lead to such an incongruous interpretation. See

New Capitol Bar & Grill Corp. v. Div. of Emp. Sec., Dep't of Lab. and Indus.,

25 N.J. 155, 160 (1957) (citing Giordano v. City Comm'n of City of Newark, 2

N.J. 585, 594 (1949)) ("It is elementary that a statute should be construed to

avoid absurd results.").

Our determination that the mere interception of a privileged

communication is not unlawful under N.J.S.A. 2A:156A-21(a) is further

supported by the Wiretap Act's legislative history. As the Court explained in

State v. Terry, the Wiretap Act was modeled on a statute prepared by

University of Notre Dame Law School Professor G. Robert Blakey that was

included and explained in a 1968 article published in the Notre Dame Law

Review. 218 N.J. 224, 236 (2014). The Court in Terry relied on Blakey's

article and testimony before the Legislature in support of the adoption of the

Wiretap Act as an aid in interpreting N.J.S.A. 2A:156A-21. Ibid.

A-1230-22 18 Pertinent here, Blakey's law review article addresses the language our

Legislature adopted in N.J.S.A. 2A:156A-11 and explains the statute "should

serve to guarantee that the incidental interception of otherwise privileged

communications will be held to a minimum." G. Robert Blakey & James A.

Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame L.

Rev. 657, 675 n. 38 (1968). Thus, the authors of the article that provided the

framework, and indeed the language, for much of our Wiretap Act, including

N.J.S.A. 2A:156A-11, recognized the statute did not render the mere

interception of a privileged communication an unlawful or unauthorized

interception. Professor Blakey explained incidental interceptions of privileged

communications would occur under the Wiretap Act; their interception should

be kept to a minimum; and their interception would not result in a loss of the

communications' privileged character. Professor Blakey's explanation of

N.J.S.A. 2A:156A-11 supports our conclusion the mere interception of a

privileged communication is not unlawful under the Wiretap Act and does not

constitute an "unlawfully intercepted" communication under N.J.S.A.

2A:156A-21.

Our interpretation of the statute is also supported by simple logic applied

to the manner in which a wiretap order is executed. For example, where, as

here, the State's application for the wiretap order asserted Grant used a phone

A-1230-22 19 subscribed to his wife, Villa-Grant, the State and the court would have been

aware Grant was married to Villa-Grant. However, in the execution of the

wiretap order, the only way to determine if communications to and from that

phone were privileged was for the State Police to first monitor a call to

determine if Grant and Villa-Grant were parties to the call.

Indeed, even if a wiretap order authorized interceptions from a phone

subscribed to Grant and another subscribed to Villa-Grant, it would not be

possible to determine if calls made between the two phones constituted

privileged marital communications under the then-extant version of N.J.R.E.

509 unless officers first determined — by monitoring the calls — whether

spouses Grant and Villa-Grant were the parties to the communications. Were

the rule otherwise, clever criminals would only use phones subscribed to by

married couples. The Legislature could not have intended interception under

the Wiretap Act to be so easily evaded.

Of course, if the officers monitored the communications and determined

spouses Grant and Villa-Grant were parties to a call, by definition under the

then-extant version of N.J.R.E. 509 the officers would have intercepted a

privileged marital communications call, and, under defendants' interpretation

of N.J.S.A. 2A:156A-21, the interception would be unlawful. Further, under

N.J.S.A. 2A:156A-21, all future intercepted communications — including non-

A-1230-22 20 privileged communications — and the evidence derived therefrom, would then

be subject to the mandatory suppression-of-evidence remedy. We find such an

interpretation is simply not supported by any language in the Wiretap Act.

That is not to say there are no interceptions of privileged

communications that are unlawful under N.J.S.A. 2A:156A-21(a), thereby

triggering the suppression-of-evidence remedy. Indeed, N.J.S.A. 2A:156A-11

expressly recognizes both that interceptions of privileged communications may

be "in accordance with the" Wiretap Act or "in violation of" the Wiretap Act.

As such, the Wiretap Act recognizes there are interceptions falling in the latter

category that are unlawful and trigger the suppression remedy under N.J.S.A.

The distinction between interceptions of privileged communications that

are in accordance with the Wiretap Act and not unlawful under N.J.S.A.

2A:156A-21(a), and those that are unlawful, rests on the State's fulfillment of

its "strict" statutory obligation "to minimize or eliminate the interception

of . . . communications not otherwise subject to interception." Facebook, Inc.,

254 N.J. at 349 (quoting N.J.S.A. 2A:156A-12(f)). That obligation "is

accomplished through 'extrinsic' and 'intrinsic' minimization." Ibid. (quoting

State v. Catania, 85 N.J. 418, 429 (1981), abrogated on other grounds, State v.

Purnell, 161 N.J. 44 (1999)).

A-1230-22 21 Minimization is an affirmative obligation under the Wiretap Act and is

rooted in the Fourth Amendment's protection of individual privacy against

unreasonable searches. See Catania, 85 N.J. at 429, 437. Under every wiretap

order, law enforcement officers have a duty to "minimize the interception of

privileged communications." Facebook, Inc., 254 N.J. at 349; see also

N.J.S.A. 2A:156A-12(f) (providing in part every wiretap order "shall require

that such interception . . . be conducted in such a manner as to minimize or

eliminate the interception of such communications not otherwise subject to

interception under" the Wiretap Act). Here, the February and March 2015

wiretap orders expressly provided that they "be conducted in a way as to

minimize or eliminate the interception of communications other than the type

described herein . . . ."

We reject the State's suggestion that N.J.S.A. 2A:156A-12's

minimization requirements are mere "guidelines." "Law enforcement officers

must . . . minimize the interception of privileged communications[,]"

Facebook, Inc., 254 N.J. at 349, including privileged marital communications,

Terry, 218 N.J. at 245.

Determining whether an interception otherwise authorized by the wiretap

orders constitutes privileged marital communications necessarily requires that

the officers engage in intrinsic minimization, which mandates an analysis of

A-1230-22 22 the communications "on a call-by-call basis . . . ." Facebook, Inc., 254 N.J. at

349 (quoting Catania, 85 N.J. at 430). Therefore, the officers were permitted

to intercept and monitor the calls in the first instance, but the monitoring

should have "cease[d] immediately" "once the parties [had] been identified and

the conversation[s] between them [were] determined to be nonpertinent or

privileged." Ibid. (quoting United States v. DePalma, 461 F. Supp. 800, 821

(S.D.N.Y. 1978)). That is not what the State Police did here.

In our view, the monitoring of a communication as part of the mandatory

intrinsic minimization process required to determine if a communication is

privileged constitutes an incidental, authorized, and lawful interception under

the Wiretap Act. Cf. Catania, 85 N.J. at 430-31 (quoting State v. Molinaro,

117 N.J. Super. 276, 285 (Law Div. 1971), rev'd on other grounds, 122 N.J.

Super. 181 (App. Div. 1973)) (recognizing "the interception of nonsubject

communications require[s] minimization to be conducted on an intrinsic, call-

by-call basis" in order to avoid "violat[ing] the command of the statute").

Doing so therefore does not trigger the suppression-of-evidence remedy under

N.J.S.A. 2A:156A-21. Indeed, intrinsic minimization to determine if a

communication is privileged could not logically be deemed unlawful or

unauthorized because such minimization is mandated by N.J.S.A. 2A:156A-

A-1230-22 23 12(f) and was required by the wiretap orders pursuant to which the challenged

interceptions here were obtained by the State Police.

We are not persuaded our interpretation of N.J.S.A. 2A:156A-21 is

inconsistent with Court's statement in Terry that, under N.J.S.A. 2A:156A-11,

"conversations between spouses that would otherwise be privileged cannot be

intercepted or introduced in evidence under current law." 218 N.J. at 229.

Defendants argue the Court's statement is a binding conclusion of law that any

wiretap interception of a privileged marital communication is unlawful under

N.J.S.A. 2A:156A-21(a) and therefore triggers the broad suppression-of-

evidence remedy. We disagree.

The Court in Terry did not consider or address the application of

N.J.S.A. 2A:156A-21 to marital communications intercepted without

minimization, which is the issue here. Instead, the Court in Terry addressed

only the admissibility of intercepted marital communications under N.J.R.E.

509 and N.J.S.A. 2A:156A-21. 218 N.J. at 234-41. For that reason alone, we

reject defendants' claim the Court's statement should be interpreted as a

binding declaration that privileged communications intercepted and monitored

for the purposes of intrinsic minimization constitute "unlawfully intercepted"

communications under N.J.S.A. 2A:156A-21(a).

A-1230-22 24 Additionally, the Court's declaration that privileged communications

should not be intercepted is consistent with our interpretation of the Wiretap

Act. We agree privileged communications should not be intercepted, but we

recognize privileged communications may be properly intercepted during the

required intrinsic minimization monitoring process to determine if, in fact,

communications are privileged, and that such incidental interceptions are not

unlawful under N.J.S.A. 2A:156A-21(a), so long as the intrinsic minimization

process immediately terminates when a communication is determined to be

privileged. Facebook, Inc., 254 N.J. at 349. The Court in Terry explained it

did not address "whether interception of spousal communications violates the

minimization requirements of the Wiretap Act." 218 N.J. at 246. Thus, we

discern no basis to conclude the Court's statement that privileged

communications should not be intercepted is inconsistent with our

interpretation of N.J.S.A. 2A:156A-21.

Our interpretation of the statute does not provide any refuge for the

State's actions here. The undisputed facts establish the State failed to take any

action to minimize the interceptions in a manner limited to determining

whether any of the 306 communications between Grant and Villa-Grant

constituted privileged marital communications. The State does not dispute that

it knew Grant and Villa-Grant were married. The initial wiretap applications

A-1230-22 25 made clear the State knew they were married; the applications noted Grant

used a phone subscribed to his "wife" Villa-Grant to allegedly commit

offenses. Additionally, the State does not dispute that, as it monitored the

communications between Grant and Villa-Grant, beginning with the first call

on February 27, 2015, and continuing through April 16, 2015, it knew those

communications were between the two spouses.

The State argues it properly intercepted and monitored the calls in good

faith because it believed the crime-fraud exception suggested by the Court in

Terry, that was later adopted in November 2015 as an amendment to N.J.R.E.

509, would apply retroactively. In taking that position, the State concedes it

did not engage in the required minimization because it contends it was entitled

to intercept the 306 communications under the putative crime-fraud exception

which, as it turns out, is wholly inapplicable because the exception was

adopted after the interceptions took place and is not retroactive. See Bailey,

251 N.J. at 127. The State is governed by the law as it stood when the State

Police intercepted the communications – not by its forecast of what the law

might be in the future.

III.

Under these circumstances, we are convinced the interceptions of the

306 privileged marital communications were unlawful as violative of the

A-1230-22 26 Wiretap Act's minimization requirement. Facebook, Inc., 254 N.J. at 349. For

the same reason, we also conclude interception of the communications violated

the wiretap orders, each of which required minimization to avoid interception

of privileged communications not otherwise authorized under the Wiretap Act.

The State's interception of Grant and Villa-Grant's marital communications

therefore violated subsections (a) and (c) of N.J.S.A. 2A:156A-21 and thus

require application of the mandatory suppression-of-evidence remedy under

the statute. "The strict interpretation accorded the . . . Wiretap Act . . . , the

interests in privacy protected by the . . . Wiretap Act, the legislative intent to

strengthen the suppression remedy, and the plain meaning of the statutory

language demand that the exclusionary remedy here be strictly applied."

Worthy, 141 N.J. at 384.

That the State Police officers monitoring the communications held a

"good-faith belief" the crime-fraud exception "would apply" to their

interception of Grant's and Villa-Grant's communications does not undermine

our determination the interceptions were unlawful within the meaning of

N.J.S.A. 2A:156A-21(a) and violated the wiretap orders under N.J.S.A.

2A:156A-21(c), such that the suppression-of-evidence remedy is required. A

good-faith interception under the Wiretap Act saves only the wiretap monitors

from liability under N.J.S.A. 2A:156A-25; it does not rescue the State from

A-1230-22 27 suffering the deterrent effect of exclusion under N.J.S.A. 2A:156A-21. See

Novembrino, 105 N.J. at 149.

To the extent we have not directly addressed any of the State's remaining

arguments, it is because they are without sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(2).

Affirmed.

A-1230-22 28