Verbal approval enough for consensual wiretaps, appeals court rules

State law does not require prosecutors to give written approval for wiretaps consented to by one party of a communication, judges find. (Getty Images)

A New Jersey appeals court declined on Tuesday to require police to obtain written approval before placing wiretaps after obtaining the consent of one caller, keeping in place rules that allow consensual wiretaps as long as a prosecutor gives verbal approval.

The three-judge panel found the New Jersey Wiretapping and Electronic Surveillance Control Act remains silent on the format of prosecutorial approval required for consensual wiretaps, which require the consent of one party to the communication and can be applied without a court order.

The ruling is a defeat for an Ocean County man who alleged prosecutors improperly recorded a telephone conversation between him and his daughter after she alleged he sexually assaulted her.

“Defendant asks us to read into the Act words the Legislature did not choose to include, and to engraft a procedural requirement the Legislature did not choose to impose,” Judge Ronald Susswein wrote for the panel.

Because constitutional privacy concerns require authorities to hew close to the wiretapping law’s text, the court was required to strictly construe its language, and imposing additional requirements outside of its text lay beyond the judges’ authority, Susswein wrote.

The panel noted the law explicitly requires police to obtain prosecutorial approval in writing when seeking a court order for a wiretap but did not impose an identical requirement on consensual interceptions.

The ruling defeats a bid for post-conviction relief by the Ocean County man, who was found guilty in 2018 of sexually assaulting his daughter over the span of seven years starting when she was 6 years old. The New Jersey Monitor is not identifying the man to avoid identifying his victim.

He was sentenced to a 19-year prison term and sought to reverse it, charging the wiretap was illegally obtained and that prior attorneys provided ineffective assistance by failing to raise the issue at trial and an earlier appeal.

The judges pointed to prior case law that similarly found there was no requirement approval for consensual wiretaps to be in writing, noting those decisions predate 1999 changes to the wiretapping act. If lawmakers intended written approval to be required, they could have written the requirement into law that year, the judges said.

“The Legislature did not do that. Indeed, rather than add any new prerequisites, the 1999 amendment deleted the reasonable-suspicion requirement and expanded the list of officials who could give prior approval,” Susswein wrote.

The man’s attorney did not return a request for comment.

DONATE: SUPPORT NEWS YOU TRUST