NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2393-17T3 A-2478-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 27, 2020 v. APPELLATE DIVISION
ARTHUR R. BURNS, a/k/a RONDALE BURNS,
Defendant-Appellant.
Plaintiff-Respondent,
v.
VAUGHN WILLIAMS,
Argued January 7, 2020 – Decided January 27, 2020
Before Judges Fisher, Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 16-05- 0528. Michael E. Riley argued the cause for appellant Arthur R. Burns (Law Offices of Riley & Riley, attorneys; Michael E. Riley, on the brief).
Alyssa A. Aiello, Assistant Deputy Public Defender, argued the cause for appellant Vaughn Williams (Joseph E. Krakora, Public Defender, attorney; Alyssa A. Aiello, of counsel and on the brief).
Regina M. Oberholzer, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the briefs).
The opinion of the court was delivered by
ROSE, J.A.D.
These appeals, calendared back-to-back and consolidated for purposes of
our opinion, present an issue of first impression, requiring us to decide whether
the State's utilization of federally-contracted civilian monitors, who were sworn
as "Special County Investigators," violated the New Jersey Wiretapping and
Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1
to -37. Because we conclude the monitors were cloaked with the investigative
responsibility of law enforcement officers when they intercepted the
communications at issue, we affirm.
A-2393-17T3 2 I.
The genesis of these appeals is a nearly eighteen-month drug-trafficking
investigation conducted jointly by the Burlington County Prosecutor's Office's
(BCPO) Gang, Gun, and Narcotics Task Force and the Drug Enforcement
Agency (DEA). Several individuals were targeted for their involvement in the
distribution of large quantities of cocaine in Burlington County and surrounding
areas.
As part of the ongoing investigation, the lead BCPO Task Force detective
received judicial authorization to intercept communications over four cellular
telephone facilities subscribed to defendant Arthur R. Burns and another
individual.1 During the pendency of the wiretap investigation, police intercepted
a number of conversations and text messages, including what they believed were
slang and code words for cocaine and drug transactions. Some of those
1 Authorization was also granted for four communications data warrants pursuant to N.J.S.A. 2A:156A-29. Those warrants are not at issue in these appeals. The other individual identified in the application is not a party to this appeal.
A-2393-17T3 3 conversations pertained to multiple sales of cocaine from Burns to defendant
Vaughn Williams. 2
In support of the wiretap application, the affiant submitted a sixty-six-
page affidavit to the designated wiretap judge. 3 The primary issue on appeal
pertains to paragraph ten and its accompanying footnote:
The type of communications to be intercepted are wire and electronic communications. The interceptions will be made by means of electronic equipment installed and maintained by members of the DEA and/or members of the New Jersey State Police Electronic Surveillance Unit, each of whom has undergone at least three (3) weeks of specialized training in the use of such electronic equipment and the techniques required for its proper installation. The monitoring of communications intercepted by the aforesaid electronic equipment will be done by members of or attached to the [BCPO] and [DEA] . . . .1 All of the above law enforcement officers have been instructed in the procedures required by the ". . . Act" for the control of such an installation and the preservation of information obtained thereby. . . . ____________________________________________ 1 These individuals include Special Agents of the [DEA] as well as civilian monitors contracted by that agency, all of who[m] have been sworn as Special County Investigators/Detectives with the [BCPO].
2 Burns and Williams are two of six defendants who were indicted after the investigation was completed; none of their co-defendants is a party to this appeal. 3 See N.J.S.A. 2A:156A-2(i). A-2393-17T3 4 [(Emphasis added).]
As referenced in footnote one of the affidavit, the Burlington County
Prosecutor deputized DEA agents – and civilian personnel contracted by the
DEA – as special county investigators. Each oath of appointment was
memorialized in a document signed by the monitor and witnessed by the
Prosecutor. The monitors acknowledged their appointments were limited to "the
period encompassing the investigation and prosecution of a case being
prosecuted by the [BCPO] and [DEA] Operation[,]" and they "serve[d] under
the authority and supervision of the Prosecutor of Burlington County, or his
designee." An addendum attached to each oath provides, in pertinent part:
I understand that as directed by members of the [BCPO], a person sworn as a Special County Investigator will assist the [BCPO] or the [DEA] in conducting investigations of violations of State Law. Unless otherwise authorized by law, a Special County Investigator is not authorized to carry firearms or exercise the powers and rights of a police officer. Furthermore, a Special County Investigator must advise the Supervising Assistant Prosecutor in charge of the [BCPO Task Force], of any outside employment in which he/she is engaged and whether such outside employment has been authorized by his/her employer.
It is undisputed that the BCPO provided to the monitors oral and written
minimization instructions, which each monitor signed. Among other things, the
instructions included the identity of the target facilities, the potential subjects,
A-2393-17T3 5 and the specified offenses under investigation. Instructions were also provided
regarding the procedure for minimizing non-pertinent and privileged
communications, as set forth in State v. Catania, 85 N.J. 418, 427-29 (1981), a
copy of which was provided to each monitor. 4 In addition to the presence of a
supervisor at the wire room, the affiant and supervising assistant prosecutor
were made available to the monitors for consultation if any issues arose that
were not included in the minimization lecture or written instructions.
Burns, joined by Williams and another co-defendant, moved to suppress
the contents of the intercepted communications and the evidence seized as a
result of those communications.5 They challenged the warrant application on
4 At oral argument before the motion judge, the prosecutor estimated each monitor was provided with "well over a hundred pages of material" to read: "And once they are . . . comfortable with . . . the contents of that document," the monitors acknowledge they have read the materials, "and then they're permitted into . . . the wire room." 5 See N.J.S.A. 2A:156A-21, providing, in pertinent part:
Any aggrieved person in any trial, hearing, or proceeding in or before any court . . . of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
a. The communication was unlawfully intercepted;
A-2393-17T3 6 several overlapping grounds. In essence, defendants claimed the use of civilian
monitors invalidated the warrant application and the Prosecutor's appointment
of special county investigators to monitor the intercepted communications
exceeded his powers. They also challenged the affiant's qualifications in
electronic surveillance. 6 No testimony was presented. After oral argument, the
motion judge reserved decision and later issued a cogent written opinion and
accompanying order denying the motion.
Pertinent to these appeals, the judge recognized, unlike Title III of the
federal Omnibus Crime and Safe Streets Act (Title III), 18 U.S.C. §§ 2510-2523,
the Wiretap Act does not expressly permit delegation of wire interception to
civilian personnel. But, the judge was persuaded by the absence of any New
Jersey precedent prohibiting the utilization of civilian monitors because, in this
b. The order of authorization is insufficient on its face;
c. The interception was not made in conformity with the order of authorization or in accordance with the [minimization] requirements of [N.J.S.A.] 2A:156A-12. 6 Defendants also argued the State's failure to exhaust traditional investigatory techniques violated the necessity requirement for issuance of the warrants. That claim is not renewed on appeal. A-2393-17T3 7 case, "[o]nce the oath of office was administered the civilian monitors were law
enforcement officers as required by and defined in the . . . Wiretap Act . . .
[N.J.S.A.] 2A:156A-2(f)." The judge concluded the Prosecutor was empowered
to deputize the civilian monitors as special county investigators under "the
authority and power to appoint personnel necessary to carry out the functions of
the office."
Burns and Williams thereafter pled guilty to drug distribution pursuant to
separate conditional plea agreements with the State. 7 These appeals followed.8
7 Burns pled guilty to two counts of first-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and second-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). He was sentenced to an aggregate fourteen-year prison term, with a five-year period of parole ineligibility. The State dismissed the remaining eleven charges against Burns. Williams pled guilty to first-degree distribution of cocaine, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(1). He was sentenced to an eleven-year term of imprisonment, with a four-year period of parole ineligibility. The State dismissed the remaining count of the indictment against Williams. 8 The parties did not request oral argument. After examining the briefs and appellate record, we determined oral argument would assist our determination of this appeal, and notified the parties to be prepared to discuss, among oth er things: "the Prosecutor's ability, or lack thereof, to provide a civilian with limited law enforcement powers by appointing the civilian as a 'special investigator'"; and "whether that appointment process is an ongoing practice, and if so whether the practice is state-wide and how long the practice has been occurring[.]"
A-2393-17T3 8 On appeal, defendants renew their argument that the State's utilization of
civilian monitors violated the heightened privacy protections of the Act's
minimization provision. They contend, unlike its federal counterpart, the Act
does not expressly authorize civilian contractors to monitor intercepted
communications, and the Prosecutor lacked authorization to appoint civilian
monitors as special county investigators. Burns contends that impropriety was
compounded by the affiant's failure to disclose the identity of the monitors, their
qualifications, and training; and the affiant was not qualified to apply for the
warrants because he lacked formal wiretap training.
The State counters defendants have neither identified any conversations
whatsoever that were improperly minimized or unreasonably intercepted, nor
argued there was insufficient probable cause to support the issuance of the
wiretap warrants. The State maintains the Prosecutor has inherent power to
appoint special county investigators as part of his responsibility to carry out the
During oral argument before us, the State disclosed the appointment process has been ongoing "for years" in the Office of the Attorney General and one-third of the State's counties. The utilization of "special investigators" apparently is limited to joint investigations with federal agencies and interpretation of foreign-language communications. We were also advised there is no Attorney General directive or any written policy governing the practice. The present case marked the first wiretap investigation in which special county investigators were utilized by the BCPO.
A-2393-17T3 9 duties of his office and the enforcement of criminal matters, and the appointment
here brought the civilian monitors "under the umbrella of the agency."
II.
Ordinarily, our review of a trial court's decision on a motion to suppress
is limited, State v. Robinson, 200 N.J. 1, 15 (2009), because we defer to the
judge's factual findings, State v. Gonzales, 227 N.J. 77, 101 (2016). Where, as
here, the facts underlying a suppression motion are uncontested, our review is
de novo. State v. Boone, 232 N.J. 417, 426 (2017). That standard comports
with our review of statutory interpretation: unless we are persuaded by the
motion judge's analysis, we need not defer to the judge's decision. See State v.
Scriven, 226 N.J. 20, 33 (2016). Essentially, we owe no deference to the judge's
legal conclusions or interpretation of the legal consequences that flow from
established facts. State v. Goodwin, 224 N.J. 102, 110 (2016).
Our Supreme Court has chronicled the history and requirements of the
Wiretap Act and Title III, after which the Act was modeled. See, e.g., State v.
Feliciano, 224 N.J. 351, 367-68 (2016); State v. Ates, 217 N.J. 253, 266 (2014);
Catania, 85 N.J. at 427-29. We need not reiterate those details for purposes of
our decision; we recognize the Act is "more restrictive than the federal act in
some respects." State v. Diaz, 308 N.J. Super. 504, 510 (App. Div. 1998)
A-2393-17T3 10 (citation omitted); see also Feliciano, 224 N.J. at 370; Catania, 85 N.J. at 436-
38. And, "[t]he Wiretap Act must be strictly construed to safeguard an
individual's right to privacy." Ates, 217 N.J. at 268.
Relevant here, in Catania, our Supreme Court compared the Wiretap Act's
minimization provision with that of Title III and determined "the Legislature
intended to lay down stricter minimization guidelines than did Congress."
Catania, 85 N.J. at 437. The Court elaborated:
While the federal act only directs monitors to "minimize" their interception of non-relevant communications, . . . our Act directs them to "minimize or eliminate" the interception of such communications (emphasis added). The addition of the language "or eliminate" is evidence of a legislative intent to make New Jersey's minimization provision even more stringent than its federal counterpart.
[Ibid.]
Importantly, those guidelines addressed the interception of non-pertinent
conversations. The Court sought to protect the "greater threat to individual
privacy than [that of] traditional searches and seizures" in light of the State's
"heavy emphasis on wiretapping as a tool of law enforcement." Id. at 440.
Eighteen years after its enactment in 1968, Title III's minimization section
was amended to permit monitoring of intercepted communications by civilian
personnel. See 18 U.S.C. § 2518(5) (providing "[a]n interception under [Title
A-2393-17T3 11 III] may be conducted in whole or in part by Government personnel, or by an
individual operating under a contract with the Government, acting under the
supervision of an investigative or law enforcement officer authorized to conduct
the interception"). The Federal Bureau of Investigation sought the amendment
"to free field agents from the relatively routine activity of monitoring
interceptions so that they c[ould] engage in other law enforcement activities."
S. Rep. No. 99-541, at 31 (1986).
The Act's minimization section is contained in N.J.S.A. 2A:156A-12.
Although that section is similar to Title III's minimization section, absent is any
provision permitting the utilization of civilian employees or contract ors to
monitor interceptions. We note the Legislature thrice amended the Act's
minimization section since Title III's minimization section was amended, 9 but
none of those amendments added language expressly authorizing civilian
personnel to monitor wiretap communications – or expressly prohibiting their
utilization. While that silence could cause us to "turn to extrinsic sources, such
as legislative history," Maeker v. Ross, 219 N.J. 565, 575 (2014), to give effect
to the Legislature's intent, see State v. Morrison, 227 N.J. 295, 308 (2016), that
analysis is rendered unnecessary here, where the civilian monitors were
9 See L. 1989, c. 85, § 4; L. 1993, c. 29, § 11; L. 1999, c. 151, § 5. A-2393-17T3 12 deputized as investigators and, as such, they were no longer acting in a civilian
capacity.
Instead, our focal point is the language contained in the Act pertaining to
those who may intercept the communications. We start with the requirements
for the wiretap application, which "shall state . . . [t]he identity and
qualifications of the investigative or law enforcement officers or agency for
whom the authority to intercept a wire, electronic or oral communication is
sought . . . ." N.J.S.A. 2A:156A-9(b) (emphasis added). Similarly, in
considering the application, the wiretap judge must determine whether "there is
or was probable cause for the belief that . . . [t]he investigative or law
enforcement officers or agency to be authorized to intercept the wire, electronic
or oral communication are qualified by training and experience to execute the
interception sought . . . ." N.J.S.A. 2A:156A-10(e) (emphasis added). Further,
the order authorizing interception "shall state . . . [t]he identity of the
investigative or law enforcement officers or agency to whom the authority to
intercept a wire, electronic or oral communication is given . . . ." N.J.S.A.
2A:156A-12(e) (emphasis added). Finally, the Act defines an "'[i]nvestigative
or law enforcement officer' [as] any officer of the State of New Jersey . . . who
is empowered by law to conduct investigations of, or to make arrests for, any
A-2393-17T3 13 offense enumerated in [the Act] . . . ." N.J.S.A. 2A:156A-2(f) (emphasis
added).10
Pursuant to the plain language of the emphasized provisions, see State v.
Grate, 220 N.J. 317, 330 (2015), the Act undoubtedly requires interception by
"investigative or law enforcement officers or agency." Because the civilian
monitors were deputized as special county investigators, for purposes of the
wiretap application at issue, they were not acting as "civilians" when the
interceptions were made. Upon taking their oath, they became "investigative or
law enforcement officers[,]" of the BCPO agency duly authorized "to conduct
investigations" by monitoring the intercepted communications here.
Accordingly, when the interceptions were made, the monitors fit squarely within
the Act's definition.
10 The State also cites the most recent amendment to the Act, which defines a "[m]ember of a New Jersey law enforcement agency" as "any sworn or civilian employee of a law enforcement agency operating under the authority of the laws of the State of New Jersey[.]" N.J.S.A. 2A:156A-35(a) (Section 35(a)). Arguably, that definition applies broadly to the Act, but the specific term is not referenced anywhere else in the Act. Also, the other definitions contained in Section 35(a) are only referenced in the three newly-enacted sections, which all pertain to counter-terrorism investigations. N.J.S.A. 2A:156A-35 to -37. In any event, we are not relying upon the definitions contained in Section 3 5(a) to support our decision. A-2393-17T3 14 In reaching that conclusion, we note a county prosecutor's power to
appoint investigators is statutory. See N.J.S.A. 2A:157-10. Further, as the
motion judge correctly observed, "the County Prosecutor has the authority and
power to appoint personnel necessary to carry out the functions of the office."
That authority is deeply rooted in our jurisprudence. See Cetrulo v. Byrne, 31
N.J. 320, 325-28 (1960). Writing for the unanimous Court in Cetrulo, Justice
Jacobs cited Chief Justice Vanderbilt's decision in State v. Winne, 12 N.J. 152,
167 (1953), which underscores the Prosecutor's authority and bears repeating
here:
Chief Justice Vanderbilt referred to the prosecutor's dominant position and primary responsibility for the enforcement of the criminal laws in his county and he cited various legislative enactments which have from time to time given him not only express powers to appoint designated assistants but also implied powers to appoint additional personnel when needed for the proper discharge of his duties. Under N.J.S.A. 2A:158- 5 (formerly R.S. 2:182-5) the prosecutor is directed to "use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws" . . . .
[Cetrulo, 31 N.J. at 325.]
With those basic tenets in mind, we reject defendants' argument that the
Prosecutor was not empowered to create the position of "Special County
Investigator" for purposes of the wiretap investigation in the present matter.
A-2393-17T3 15 Not surprisingly, defendants cite no authority for their contention. Instead, they
posit that by limiting the investigators' functions, the Prosecutor contravened the
broad-reaching powers of his appointment statute. Compare N.J.S.A. 2A:157-
10 (emphasis added) (providing "[p]ersons so appointed [as county
investigators] shall possess all the powers and rights and be subject to all the
obligations of police officers, constables and special deputy sheriffs, in criminal
matters") with the oath administered by the Prosecutor (emphasis added)
(providing "[u]nless otherwise authorized by law, a Special County Investigator
is not authorized to carry firearms or exercise the powers and rights of a police
officer").
But, as stated above, the Act's definition of an "[i]nvestigative or law
enforcement officer" includes "any officer . . . who is empowered by law to
conduct investigations . . . or to make arrests . . . ." N.J.S.A. 2A:156A-2(f)
(emphasis added). The Legislature specifically used the disjunctive "or" to
define an officer's powers; thus, the Act does not require that an officer possess
both investigative and arrest powers. Accordingly, under the Act, an officer
need not possess "all the powers and rights . . . of police officers" as set forth in
N.J.S.A. 2A:157-10, which pertains to the "appointment, salary, [and] duties" of
"[c]ounty investigators generally." We therefore discern no impropriety in the
A-2393-17T3 16 restriction imposed by the Prosecutor, limiting the power of the special county
investigators to this wiretap investigation. Rather, that limitation comports
squarely with the statutory definition of investigative officers under the Act , the
Prosecutor's obligation to comply with the Act's monitoring mandates, and his
power to appoint "additional assisting personnel," Cetrulo, at 31 N.J. at 328, to
discharge his duties and enforce the law.
In view of our decision, we need not address whether civilian personnel,
who are not deputized as special county investigators or other law enforcement
officers as defined within the Act, are permitted to monitor intercepted
communications. That omission from the minimization section of the Wiretap
Act "is best left for consideration by the Legislative and Executive branches of
government." In re Declaratory Judgment Actions, 446 N.J. Super. 259, 286
(App. Div. 2016); see also State v. Saavedra, 433 N.J. Super. 501, 525 (App.
Div. 2013).
Revisiting the terms of the Act we emphasized above, we also reject
Burns' argument that the wiretap affidavit improperly omitted the identities and
qualifications of the monitors. Again, the plain language of the Act requires the
affidavit to state the identity and qualifications of the officers or agency seeking
authority for interception, N.J.S.A. 2A:156A-9(b); the order only requires their
A-2393-17T3 17 identity, N.J.S.A. 2A:156A-12(e). The Act does not expressly require that the
wiretap application set forth the identity and qualifications of every monitor who
intercepts communications in a wiretap investigation. 11
Pursuant to those requirements, the affidavit identifies the BCPO as the
agency seeking the warrants and the qualifications of the affiant. The affidavit
also discloses the monitoring would be performed by members of the BCPO,
DEA and civilian monitors, all of whom were sworn as special county
investigators and "instructed in the procedures required by the [Act] for the
control of such an installation and the preservation of information obtained
thereby." The order, in turn, identifies those same agencies and individuals,
noting the monitors were deputized as special county investigators of the BCPO,
all of whom were "qualified by training and experience to execute such
interceptions."
We discern no impropriety in the procedures employed here, especially
because defendants have not identified any intercepted communications that
were improperly minimized. See Catania, 88 N.J. at 435 (finding it
"[s]ignificant[]" that "the defendants ha[d] not pointed to a single non -relevant
conversation that was unreasonably intercepted"). Notably, defendants also
11 The record reflects nearly fifty monitors were utilized in this investigation. A-2393-17T3 18 have not challenged the issuing judge's probable cause determination. We are
therefore satisfied defendants have not demonstrated utilization of civilian
monitors – whom the Prosecutor had deputized as special county investigators
in this investigation – intruded on defendants' privacy interests. Id. at 429.
Instead, tasking those contractors with routine monitoring was a common-sense
approach, enabling police to conduct field investigations as the wiretap
investigation unfolded.
In reaching our decision, we further reject Burns' argument that the affiant
was not qualified to apply for the wiretap orders. The affiant's qualifications are
fully set forth in paragraph fifteen of the affidavit, which spans three pages.
Among other things, the affiant detailed his familiarity with the procedural
requirements of the Act and his knowledge of wiretap investigations, including
"the manner in which individuals communicate on the telephone for the purpose
of engaging in illegal narcotics activity." Importantly, the affiant disclosed he
had prepared a prior wiretap affidavit and wiretap extensions. We therefore
discern no reason to disturb the wiretap judge's determination. See State v. Dye,
60 N.J. 518, 527 (1972) (deferring to the Law Division's determination as to
whether the detective charged with installing and maintaining the wiretap
warrant, as described in the warrant affidavit, was qualified to do so).
A-2393-17T3 19 Affirmed.
A-2393-17T3 20