NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2247-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYQUAN FUQUA, a/k/a TYOUAN FUQUA,
Defendant-Appellant. ______________________
Submitted December 3, 2024 – Decided April 4, 2025
Before Judges Susswein, Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-04- 0026.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Kaili E. Matthews, Deputy Attorney General, of counsel and on the brief).
PER CURIAM This case returns to us following a remand. Defendant Tyquan Fuqua
appeals from November 17, 2022 Law Division orders entered by Judge
Benjamin S. Bucca, Jr. denying his motions to suppress wiretap evidence and
unseal three interceptions. In 2013, while investigating a multi-county drug
distribution enterprise, State Police obtained authorization under the New Jersey
Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act),
N.J.S.A. 2A:156A-1 to -37, to intercept telephone conversations involving
defendant and other then-unidentified co-conspirators. The wiretap
investigation ran for sixty-five days and resulted in the interception of
approximately 20,000 telephone calls. Defendant and several co-defendants
moved to suppress wiretap evidence, claiming minimization 1 violations. The
original motion judge conducted a suppression hearing over the course of seven
days and found no Wiretap Act violations. On appeal, we affirmed the motion
judge's rulings, concluding that the reviewed calls were properly minimized.
However, we determined the motion judge failed to make minimization findings
1 To satisfy the process known as "minimization," wiretap orders must "require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such [non-relevant communications] by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order." N.J.S.A. 2A:156A-12(f). A-2247-22 2 with respect to five of the roughly eighty calls that defendant challenged. We
also ruled that the State failed to respond to the motion judge's request for
information regarding a sixth call. We remanded to correct those oversights.
Another judge, Judge Bucca, heard the remand.
After reviewing the record in light of the parties' arguments and governing
legal principles, we conclude Judge Bucca followed our remand instructions,
providing sufficient reasons to support his conclusion that the State did not
violate the minimization requirements with respect to the remanded
interceptions. Moreover, we are not persuaded by defendant's contention that
Judge Bucca erred in refusing to unseal three interceptions. We are satisfied
Judge Bucca did not abuse his discretion in finding that defendant did not have
a need for disclosure.
I.
The underlying facts and pertinent procedural history leading up to our
remand order are set forth comprehensively in our prior opinion and need only
be briefly summarized. In April 2014, defendant and multiple co-defendants
were charged by indictment with first-degree racketeering, N.J.S.A. 2C:41-2(c)
and 2C:41-2(d); second-degree conspiracy to distribute a controlled dangerous
substance (CDS), heroin, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(1), 2C:35-5(c),
A-2247-22 3 and 2C:5-2; third-degree possession with intent to distribute heroin on or within
1,000 feet of school property, N.J.S.A. 2C:35-5, 2C:35-7; third-degree
possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3);
third-degree maintaining a fortified premises, N.J.S.A. 2C:35-4.1 and 2C:2-6;
and second-degree money laundering, N.J.S.A. 2C:21-25(a), 2C:21-25(b), and
2C:2-6.
Defendant and eight co-defendants moved to suppress wiretap evidence,
alleging Wiretap Act violations. Defendants argued that about eighty of the
roughly 20,000 phone calls were not properly minimized.
The motion judge listened to intercepted calls and heard from several
witnesses over the course of five days. The judge ultimately ruled that the State
Police wiretap monitors exercised objective good-faith in their minimization
efforts and that their efforts were objectively reasonable. The judge thereupon
denied the suppression motion, issuing a twenty-two-page written opinion.
The motion judge's decision included an assessment of call #1,117. The
judge determined that call #1,117 was personal and instructed the State to
provide further information to explain why that interception did not violate the
Wiretap Act. The motion judge found:
Call #1[,]117 - 3/18/2013: [Two] minutes [nineteen] seconds. Call deemed non-pertinent. It was not
A-2247-22 4 minimized. [Defendant] speaks to "SB" regarding sex. Defense argues this is a personal call. It is not the State's business. Furthermore, this was weeks into the wiretap. The State argues that SB was a co-conspirator who ultimately was stopped on the New Jersey Turnpike with [defendant] with 12,000 bags of [h]eroin. Additionally, the State has other calls regarding the two individuals where they discuss personal issues and drugs in the same call. The [c]ourt finds the call should have been stopped and/or monitored. The nature of the call early on was all sexual in nature. The call is somewhat short in duration. Clearly, the parties are discussing a personal relationship. If the State has another call before March 18, 2013, where the parties discuss criminal activity, then the [c]ourt would be of the mindset that listening to the call would not have been unreasonable. [The court] ask[s] the State to provide this information to the [c]ourt within [ten] days.
[Emphasis added.]
The State did not provide the requested information.
In June 2016, defendant pled guilty to third-degree possession with intent
to distribute heroin pursuant to a negotiated plea agreement, preserving the right
to appeal the denial of the suppression motion. Sentencing was delayed pending
resolution of the cases against the co-defendants. In January 2018, Judge Bucca
sentenced defendant in accordance with his plea agreement to a three-year prison
term.
A-2247-22 5 On appeal, we affirmed the motion judge's order denying suppression with
respect to the minimization of all the challenged interceptions except for calls
#46, #514, #523, #11,895, and #12,029. State v. Fuqua, A-0137-18 (App. Div.
Aug. 20, 2021) (slip op. at 5-6). Those calls were not addressed in the motion
judge's otherwise thorough written opinion. We remanded for factual findings
and conclusions of law with respect to those calls. Ibid. We also instructed the
State to provide the remand court with the additional information the motion
judge had requested regarding call #1,117. Id. at 6. We specifically stated:
The record before us does not indicate whether the State provided the requested information concerning earlier intercepted calls in which the participants discussed both personal matters and CDS- related matters. Nor did the trial court issue a revised or supplemental opinion accounting for any such additional information. We therefore are constrained to remand the matter for the trial court to make additional findings, as appropriate, and to issue a definitive ruling whether the failure to minimize this call constitutes a violation of the Wiretap Act. If the State has not already supplied the information requested in the trial court's written opinion, we leave to the discretion of the trial court as to the manner by which the State shall provide that information to the court and defense counsel. We also leave to the trial court's discretion whether to require or accept additional submissions from the parties or to convene a new oral argument.
A-2247-22 6 On July 18, August 3, and October 31, 2022, Judge Bucca conducted the
remand hearing to consider the calls that had not been addressed by the initial
motion judge and to assess the State's information regarding call #1,117. Judge
Bucca listened to the five calls (#46, #514, #523, #11,895, #12,029) to determine
if State Police violated the Wiretap Act. The judge also reviewed two additional
calls (#1,115 and #1,116) to determine whether the interception of call #1,117
violated the Act.
Judge Bucca issued his rulings in an oral opinion on October 31 and
entered the final orders on November 17. With respect to calls #46, #514, #523,
#11,895, and #12,029, the judge applied the three-part minimization test spelled
out in State v. Catania,2 concluding the monitoring officers had not violated the
Wiretap Act's minimization requirements. The judge also denied defendant's
motion to unseal calls #1,115, #1,116, and #1,117. This appeal followed.
Defendant raises the following contentions for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTIONS TO SUPPRESS THE EVIDENCE OBTAINED BY THE WIRETAPS AND TO UNSEAL THREE OF THE ORIGINAL WIRETAP INTERCEPTIONS.
2 85 N.J. 418 (1981). A-2247-22 7 II.
We first consider whether the State complied with the Wiretap Act's
minimization requirements. Because this matter returns to us following our
remand order, we need not repeat at length the legal principles that govern this
appeal. It is sufficient to note that in Catania, our Supreme Court adopted the
three-pronged test devised in Scott v. United States, 436 U.S. 128 (1978), to
determine whether wiretap monitors made reasonable efforts to minimize
interceptions of non-relevant calls. 85 N.J. at 429. Under this analytical
framework, reviewing courts must consider: (1) "the nature of the individual
phone calls," (2) "the purpose of the wiretap," and (3) "the reasonable
expectation of the [monitors] as to what they would overhear based on the
information available to them at the time of the wiretap . . . . " Id. at 433-34.
The first factor accounts for the fact that the nature of a particular call may
make it difficult to minimize. Id. at 433. Reviewing courts must consider, for
example, whether the language used in the conversation is "ambiguous,"
"guarded," or "cryptic." Ibid. Additionally, some calls may be of short duration,
providing the monitor with little opportunity to determine the call's relevance to
criminal activity. Ibid. See also State v. Pemberthy, 224 N.J. Super. 280, 300
A-2247-22 8 (App. Div. 1988) ("The fact that entire conversations of brief duration were
recorded . . . [does] not affect the overall intent to minimize.").
The second factor in the Scott/Catania analytical framework—the purpose
of the wiretap—recognizes that broader electronic surveillance efforts are
justified when necessary to "determine the full scope of [an] enterprise" when
police are investigating a conspiracy. Catania, 85 N.J. at 433.
The third factor, which requires reviewing courts to consider the
"reasonable expectations" of the monitors, recognizes that wiretap monitors may
be justified in intercepting a broader scope of calls in the beginning of a wiretap
investigation before "patterns of relevant and non-relevant phone calls" emerge.
Id. at 434.
The Catania Court stressed that when executing a wiretap order, "police
must make reasonable efforts to minimize intrinsically as well as extrinsically."
Ibid. The Court explained:
One [method of intrinsic minimization] is "spot monitoring," a technique whereby the monitoring agent stops listening to a conversation if, after a short while, it appears to be irrelevant. However, rather than terminating the interception indefinitely, the agent continues to tune in periodically to see if the conversation has turned to criminal matters. If it has, then [the agent] resumes full interception. Spot monitoring would protect the privacy of innocent callers without providing a loophole through which
A-2247-22 9 criminals could avoid detection by prefacing their conversations with innocent small talk. Moreover, spot monitoring is highly persuasive evidence of a good- faith intention on the part of the monitors to minimize.
[Id. at 446 (citation omitted).]
It added that to survive judicial scrutiny, intrinsic minimization efforts must be
both "objectively reasonable" and made in "subjective good faith." Id. at 432,
436.
Although the requirements of the Wiretap Act must be strictly enforced,
see State v. Ates, 217 N.J. 253, 268 (2014) (citing State v. Worthy, 141 N.J.
368, 379-80 (1995)), the Catania Court stressed judicial review of intrinsic
minimization does not impose an impracticable standard that might "force
monitors to terminate prematurely their interception of phone calls which begin
on an innocent note but later turn to discussions of criminal activity." 85 N.J.
at 445. Importantly, the Court recognized that "monitors are not prophets, and
thus they are not expected to anticipate and screen out all non-relevant phone
calls. All they are expected to do is make reasonable efforts to identify innocent,
non-relevant phone calls and minimize their interception." Ibid.
It remains for us to apply these foundational legal principles to Judge
Bucca's rulings. We do so with respect to each of the challenged telephone
interceptions in turn.
A-2247-22 10 Call #46
Defendant made call #46 from his phone on March 5, 2013 at 11:56 a.m.,
approximately twenty-four hours after the wiretap was first authorized. The call
lasted for five minutes and twenty seconds. During the call, defendant spoke
with an unidentified woman and mentioned that he is a student in Newark but
would not say where because "I don't need people to know where I be at in the
morning." The woman later stated "[y]ou trick at night and then you go and then
do what you got to do out here, so you don't have to go all the way home." The
two then discussed whether defendant "went to Coco Bongo."
Judge Bucca found that, because "this call occurred approximately
[twenty-four] hours into the wiretap[,] [t]he agents were familiarizing
themselves with the voices and flow of conversation." He continued that, "[t]he
agents were not sure what tricking at night meant or what going to school meant,
but [it was] something they . . . felt as though they needed to find out and learn."
Ultimately, the judge decided call #46 was not a violation of the Wiretap Act
"given the ambiguous language during the call" and "the fact that the wiretap
had only occurred for [twenty-four] hours now and the words could have been
suggest[ive] of criminal activity."
A-2247-22 11 Applying the three-part Catania test, we concur with Judge Bucca's
determination that call #46 did not violate the Wiretap Act. Although the five -
minute conversation was not minimized, we reiterate "[t]he fact that entire
conversations of brief duration were recorded, especially at the beginning of the
investigation, [does] not affect the overall intent to minimize." See Pemberthy,
224 N.J. Super. at 300. As to factor one—the nature of the call—defendant
discussed "tricking at night[,]" which was ambiguous and an unidentified term.
Concerning factor two—the purpose of the wiretap—the investigation was
focused on a drug-distribution operation that likely involved a large number of
participants. As Judge Bucca aptly noted, the monitors had only been listening
for around [twenty-four] hours and needed to "determine the full scope of [the]
enterprise." See Catania, 85 N.J. at 433. Furthermore, factor three—the
"reasonable expectations" of the monitors—recognizes that monitors may
intercept a broader scope of calls in the beginning of the wiretap before patterns
are recognized. Id. at 434. Since the wiretap was only operational for twenty-
four hours at that point, we are satisfied the monitors were justified in listening
to the entirety of the call.
A-2247-22 12 Call #514
Call #514 occurred on March 9, 2013 and was six minutes and fifty-six
seconds long. The State indicated that the call was minimized for "at least one
minute" towards the end of the call but could not say when exactly because they
did not have "the official state police computer that showed when the call was
minimized." In the call played at the remand hearing, defendant is speaking to
an unidentified woman. The woman invites defendant to her sister's birthday
party that night. Defendant asks whether "[t]he hoochy mama" is going to be
there and says he will "leave one of them little things down." The woman
responds, "I don't know what hoochy mamas is" and "[a]round here we don't do
that." Defendant also talks about his new car and a date that he has lat er. Once
a child speaks to the woman, the call ends.
Judge Bucca found call #514 did not violate the Wiretap Act. The judge
explained:
At this point in the wiretap, a pattern had emerged where [defendant] would rapidly switch topics from personal matters to criminal activities. The agents looked for these patterns in conversations where the topic changed frequently which is what was occurring in this case. Thus, the agents had a reasonable expectation [defendant] could at any point begin talking about criminal activity during . . . the conversation. Additionally, they engaged in spot monitoring during
A-2247-22 13 this inception which is persuasive evidence of good faith intention to minimize non-relevant calls.
Applying the three-part Catania test, for factor one—the nature of the
call—defendant discussed "[t]he hoochy mama[,]" which is ambiguous.
Concerning factor two—the purpose of the wiretap—the monitors had been
listening for around five days at this point and were still assessing "the full scope
of [the] enterprise." See Catania, 85 N.J. at 433. For factor three—the
"reasonable expectations" of the monitors—the monitors were still recognizing
patterns. Id. at 434. We see no basis upon which to overturn Judge Bucca's
conclusion the monitors did not violate the Wiretap Act. We are satisfied the
spot monitoring of call #514 established compliance with the Act's minimization
requirements. Id. at 446 (stating that "spot monitoring is highly persuasive
evidence of a good-faith intention on the part of the monitors to minimize").
Call #523
Call #523 also took place on March 9, 2013. It was two minutes and
thirty-two seconds long and includes two separate calls as defendant answered
a second call while the first caller was placed on hold. The call was about forty
to fifty percent minimized before the State Police determined it was non-
pertinent. Defendant first called an unidentified woman who talked about going
out to "AC," presumably Atlantic City, with others. Defendant then took a
A-2247-22 14 second call and stated, "I'm gonna go get your shit and we gonna go to IHOP."
The second caller replied, "[o]h, man, I wanted you to go with me to go look at
this car." They agreed to look at the car later. Defendant then hung up and
returned to the first caller, at which point the interception ended.
Judge Bucca found that "given [defendant]'s pattern of repeatedly and
rapidly interspersing personal matters with criminal activity, agents had a
reasonable expectation with such a pattern that criminal activity could be
discussed at any moment." The judge further explained, "the agents still
minimized a significant portion of the call." He concluded the monitor's conduct
was reasonable and did not violate the Wiretap Act.
We agree. This call was ambiguous especially considering that within the
span of two and a half minutes, defendant was engaged in two separate phone
calls. Further, the wiretap at this point had only been authorized for five days.
Accordingly, the monitors were still assessing patterns. See Catania, 85 N.J. at
433. We deem it noteworthy that even though both calls occurred in the span of
less than three minutes, the monitors intrinsically minimized forty to fifty
percent of the conversation. Considering all these circumstances, we concur
with Judge Bucca that the monitors did not violate the Wiretap Act.
A-2247-22 15 Call #11,895
Co-defendant Derek Fuqua 3 made call #11,895 on March 25, 2013 at 2:45
p.m. The call was seven minutes and thirty-one seconds long. It was minimized
nine times. During the call, Derek argued with an unidentified woman about
him not answering her phone calls.
Judge Bucca found:
Derek Fuqua was a . . . participant in this call and mentions getting some pills at the beginning of the conversation indicating . . . CDS-related activity or at least the potential of it.
Though the callers primarily discussed their personal relationship, the monitoring agent still minimized the call numerous time[s], nine, in fact, and continued to spot check because of the mention of the pills at the beginning of the call. The monitoring agents' conduct demonstrates a . . . good-faith intention to minimize. Thus, this [c]ourt finds the agent properly minimized call [#]11[,]895, the monitoring agent's conduct was reasonable and it did not violate the Wiretap Act.
As to this call, it was unclear if the unidentified caller was a part of the
conspiracy. Given the monitors recurrent minimization efforts, we agree with
Judge Bucca's conclusion that the monitors acted reasonably by repeatedly spot-
3 Because defendant and co-defendant Derek Fuqua share the same surname, we refer to Derek by his first name. We mean no disrespect in doing so. A-2247-22 16 checking the call. See Catania, 85 N.J. at 446 (stressing the significance of spot
monitoring).
Call #12,029
Call #12,029 took place on March 26, 2013 at 12:47 a.m. and lasted six
minutes and fifty-four seconds. Derek called Wells Fargo bank to discuss an
overcharge and to make a payment. During the call, Derek stated his mailing
address and banking information. Judge Bucca found call #12,029 provided
direct identification of Derek as the caller, which would "preclude later attempts
by [Derek] to argue that it was not him on the call." Judge Bucca further
reasoned that the purpose of the wiretap was to obtain personal information
about the conspirators, which included Derek. The monitors thus had a
reasonable expectation they would learn identification information about Derek,
his bank accounts, his purchases, and his address. We agree it was reasonable
for the monitors to listen to the entirety of the call given that this was a money-
laundering investigation that required information concerning Derek's bank
account, which was mentioned throughout the call.
In sum, with respect to all of the calls encompassed in our remand order,
we find no error in Judge Bucca's conclusion that the State Police monitors did
not violate the minimization requirements of the Wiretap Act.
A-2247-22 17 III.
We turn next to defendant's contention that Judge Bucca erred in denying
his motion to unseal three interceptions. In response to our remand instruction
with respect to call #1,117, Judge Bucca listened to calls #1,115, #1,116, and
#1,117. Those calls occurred on March 18, 2013, all within the span of nine
minutes.
At 3:34 p.m., defendant received call #1,115. An unidentified woman
asked, "[h]ow much are the Gs?" and defendant responded,
"[g]rams? . . . [e]ighty." The call lasted twenty-seven seconds. Two minutes
later, defendant received call #1,116 in which an unidentified woman spoke
about "Gs[,]" likely referring to grams. The woman stated, "they said they want
to check it first before they start buying. And then they was like they want Gs.
They were, like, they might want the Gs." The conversation turned to a
discussion of gas money as the woman was currently using defendant's car to
drop "Tweet" around the corner from "Seaman Street," presumably near Derek's
mailing address. This call lasted for one minute and thirty-three seconds.
At 3:45 p.m., call #1,117 occurred. The initial motion judge characterized
call #1,117 as personal.
A-2247-22 18 At the remand hearing, the State verified that the three calls occurred
between the same two phone numbers and within nine minutes of each other.
Defense counsel requested that the three calls be unsealed. Judge Bucca denied
this request, stating:
[D]efense . . . argues to unseal call [#]1[,]117 arguing that it can discover relevant facts such as the originating phone number of the call or other call information. The State argues that the defendant's request is without merit because the State has provided defendant with a copy of the Wiretap Act directly from the servers that held the information. The [w]iretap was entirely digital and cannot be modified. Considering the virt[ual] nature of the wiretap and that the information was downloaded directly from the state police server which held the information and based on the State's representation, this [c]ourt finds that there is no relevant distinction between the original take of the call and a copy of the call.
Furthermore, the defense makes no allegation and presents any evidence that the State modif[ied] the copy to support its claim that . . . there should be an unsealing of the original wiretap. They just make a general argument without presenting any facts to give any suggestion that there was some nefarious conduct that . . . was committed by . . . the State in turning over the . . . call information to [the] defense. So[,] as a result, the [c]ourt finds that the defense argument to unseal the wiretap does not have merit and should be denied.
Defendant argues Judge Bucca on remand erred "by denying [d]efendant's
motion to unseal the original records of [calls #1,115, #1,116, and #1,117]"
A-2247-22 19 because the State's equipment "lacked the capacity to review the places in the
various calls where spot monitoring took place." Defendant contends that "the
dispute as to the identity of the female participant in the [three] calls" provides
the "good cause" necessary to justify the unsealing of the calls. We are
unpersuaded.
The Wiretap Act provides in pertinent part, "[t]he contents of any
intercepted wire, electronic or oral communication, or evidence derived
therefrom, may otherwise be disclosed or used only upon a showing of good
cause before a court of competent jurisdiction." N.J.S.A. 2A:156A-17(c). In
Estate of Lagano v. Bergen County Prosecutor's Office, we held that "[a] trial
court's determination of 'good cause' under section 17(c) involves weighing the
need for disclosure against the harm disclosure is likely to cause." 454 N.J.
Super. 59, 80 (App. Div. 2018). We added, "the applicant seeking disclosure
must show 'a need for disclosure'" and "[t]he State then must have the
opportunity, ex parte and in camera, to show disclosure of the contents or
derivative evidence likely will cause harm to its interests or the interests of
others." Id. at 81 (quoting In re Applications of Kan. City Star, 666 F.2d 1168,
1176 (8th Cir. 1981)).
A-2247-22 20 Further, Estate of Lagano makes clear we review the denial of a motion to
unseal a wiretap applying the abuse of discretion standard. Id. at 80. "This
accords with 'the familiar abuse-of-discretion standard applicable when
appellate courts review discovery orders: appellate courts are not to intervene
but instead will defer to a trial judge's discovery rulings absent an abuse of
discretion or a judge's misunderstanding or misapplication of the law.'" Id. at
80 (citing Cap. Health Sys. v. Healthcare Servs., 230 N.J. 73, 79-80 (2017)).
Here, Judge Bucca emphasized the three calls were made between the
same two phone numbers within a few minutes. Although different unidentified
women could have been using the same phone to make the calls, that seems
unlikely. Furthermore, defendant's attorney acknowledged on the record that it
is "hard to make the conclusion based on the calls" that it is not the same
woman's voice on the three calls. In these circumstances, we are satisfied the
judge did not abuse his discretion in concluding that defendant has not
established a "need for disclosure."
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A-2247-22 21