State v. Edward Ronald Ates (070926)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Edward Ronald Ates (A-52-12) (070926)

Argued February 4, 2014 -- Decided March 18, 2014

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court considers whether the New Jersey Wiretapping and Electronic Surveillance
Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37, is unconstitutional because it allows law enforcement
officers in New Jersey to intercept conversations between individuals located outside of New Jersey.

Defendant Edward Ronald Ates, who lived in Florida and had family in Florida and Louisiana, was arrested
and charged with the murder of his former son-in-law in Ramsey, New Jersey. As part of the criminal investigation,
a New Jersey wiretap judge authorized wiretaps on six telephone numbers assigned to and known to be used by
defendant and his family members. The telephone numbers consisted of five cell phones and one landline phone.
Law enforcement officers monitored all of the wiretaps from New Jersey. Prior to trial, defendant moved to
suppress conversations that involved himself, a Florida resident, his wife, another Florida resident, his mother, a
Louisiana resident, and his sister, who lived in both Florida and Louisiana. Defendant claimed that the wiretap
orders were “extraterritorial” and that New Jersey officials should have asked the proper authorities in Florida and
Louisiana to consent to the wiretaps. Defendant also asserted that the Wiretap Act should be declared
unconstitutional because it permits New Jersey authorities to act outside their jurisdiction and wiretap individuals
with no connection to New Jersey. The trial court denied the motion, concluding that the Act constitutionally
permits intercepting and monitoring out-of-state communications in New Jersey. The jury found defendant guilty.

The Appellate Division affirmed defendant’s conviction. State v. Ates, 426 N.J. Super. 521 (App. Div.
2012). The panel rejected defendant’s argument about the Act’s “extraterritorial” reach and noted that the statute
“requires a nexus with New Jersey by insisting that, at the very least, the listening post be located in New Jersey.”
Id. at 533. The panel observed, “this does not ‘usurp [f]ederal authority’ because federal law permits the same
thing.” Ibid. The panel also rejected defendant’s other arguments: that the trial court imposed an inadequate
remedy for the State’s unlawful interception of an attorney-client conversation; that the prosecutor made improper
remarks during summation about a defense medical expert; that it was prejudicial error to admit in evidence a
reenactment of a drive from New Jersey to Louisiana; and that the cumulative effect of the above errors required
reversal. Id. at 531, 534-38. The Court granted defendant’s petition for certification. 213 N.J. 389 (2013).

HELD: New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s
focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it
impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents
could only rely on orders issued in the state where a call was placed or received.

1. The United States and New Jersey Constitutions’ protections against unreasonable searches and seizures extend
to the interception of phone conversations. In 1967, the United States Supreme Court issued two landmark opinions
that addressed electronic surveillance of phone conversations under the Fourth Amendment and outlined principles
to safeguard individual privacy rights in that area. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United
States, 389 U.S. 347 (1967). Congress responded the following year by enacting Title III of the Omnibus Crime and
Safe Streets Act, 18 U.S.C.A. §§ 2510–2520, which established minimum standards for federal and state law
enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. In 1968, the
New Jersey Legislature enacted the Wiretap Act and modeled it after Title III. (pp. 15-16)

2. The Wiretap Act empowers the State to apply to a judge for an order authorizing law enforcement officers, who
are investigating particular crimes, to intercept wire, electronic, and oral communications. N.J.S.A. 2A:156A-8.
Before judges can enter a wiretap order, they must find probable cause to believe (1) that a listed, serious offense
under New Jersey law has been, is being, or will be committed; (2) that communications about the criminal activity
in New Jersey may be obtained through the interception; and (3) that normal investigative procedures have failed,
are unlikely to succeed, or are too dangerous. N.J.S.A. 2A:156A-10a-c. An “intercept” is “the aural or other
acquisition of the contents of any wire, electronic or oral communication through the use of any electronic,
mechanical, or other device.” N.J.S.A. 2A:156A-2c. A wiretap order “may be executed at any point of interception
within the jurisdiction of an investigative or law enforcement officer executing the order.” N.J.S.A. 2A:156A-12h.
A “point of interception” is the site where the “officer is located at the time the interception is made” -- commonly
referred to as the “listening post.” N.J.S.A. 2A:156A-2v. The plain language of the Wiretap Act thus authorizes
investigators to intercept out-of-state calls at a listening post in New Jersey. (pp 16-18)

3. Because the State can only prosecute crimes that occur within its territorial borders, the first two findings that a
judge must make before issuing a wiretap order connect the interception of communications to activity in New
Jersey. See N.J.S.A. 2A:156A-10a-b. In addition, the Act requires that the listening post be located within New
Jersey. See N.J.S.A. 2A:156A-12h. Therefore, the Wiretap Act does not unconstitutionally permit the interception
of communications with no connection to New Jersey. (pp. 19-20)

4. Because the Wiretap Act is closely modeled after Title III, the Court gives careful consideration to federal
decisions interpreting the federal statute. Federal circuit courts have consistently upheld wiretaps based on the
location of the listening post, and no circuit court has found Title III unconstitutional on that ground. For example, in
United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert. denied, 506 U.S. 847 (1992), the Second Circuit found that
because Title III defines interception as the “aural” acquisition of the contents of the call, and because “aural,” by
definition, “‘pertain[s] to the ear or the sense of hearing,’” the place of interception could be where the police first
monitored or listened to the communication. Id. at 136. (citation omitted). The court in Rodriguez also noted that
allowing a court where the listening post is located to authorize wiretaps in multiple jurisdictions helps protect
individual privacy rights by avoiding unnecessary or unnecessarily long interceptions. Id. (citations omitted). Other
federal courts have followed Rodriguez and held that judges can authorize wiretaps when the listening post -- and
thus the interception -- is within the court’s jurisdiction, even if the phone is located elsewhere. The majority of
courts that have interpreted state wiretap laws also agree. For example, in Davis v. State, 43 A.3d 1044 (Md. 2012),
Maryland’s highest court upheld a wiretap order allowing officials in Maryland to monitor a cell phone located in
Virginia, finding that if the listening post is located within the wiretap court’s territorial jurisdiction, then “neither the
physical location of the mobile phone at the time the call was placed” nor “the recipient of the call are material.” Id.
at 1048. The Maryland court also noted that a different outcome would present “an enormous logistical and
technological challenge to law enforcement” officials if an investigation involved a cell phone that crossed state lines.
Id. at 1054. The Court agrees with the many federal and state courts that have allowed judges in the state where the
listening post is located to authorize a wiretap. (pp. 20-25)

5. Drawing an analogy to the requirements for searching a home, defendant contends that law enforcement officers
must seek a search warrant from a judge in the state where the phones are located. There are obvious differences
between searching a fixed location, like a home, and intercepting a phone call on a mobile phone. If out-of-state
intercepts could only be authorized by a judge in the jurisdiction where the phones are located, then the inherent
mobility of the modern cell phone could defeat even the most responsible efforts to monitor it. In short, defendant’s
reading of the Act would make it impractical to intercept cell phone conversations. Viewed in that light, the Act’s
definition of “point of interception” -- the site where an officer is located when an interception is made, N.J.S.A.
2A:156A-2v -- makes rational sense. In addition, defendant’s privacy rights were not violated because a New Jersey
judge, rather than judges in the states where the phones were located, reviewed his wiretap applications. Defendant’s
rights would be protected if the applications were reviewed in New Jersey, Florida, or Louisiana because judges in
each state must ensure that there is an adequate basis for issuing a wiretap order. At a minimum, the applications
would have to meet the requirements of Title III. (pp. 25-27)

6. As to defendant’s several other challenges, the Court affirms substantially for the reasons stated in the Appellate
Division’s opinion. Ates, 426 N.J. Super. at 534-38. (pp. 27-28)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-52 September Term 2012
070926

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD RONALD ATES a/k/a RON
WAVERLY,

Defendant-Appellant.

Argued February 4, 2014 – Decided March 18, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 521 (2012).

Walter A. Lesnevich argued the cause for
appellant (Lesnevich & Marzano-Lesnevich,
attorneys; Mr. Lesnevich and Michael R.
Mildner, on the brief).

Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney).

Daniel I. Bornstein, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this appeal, defendant Edward Ates challenges the

constitutionality of the New Jersey Wiretapping and Electronic

Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-

1
1 to -37. Defendant is serving a life sentence for the murder

of his former son-in-law in Ramsey, New Jersey. During the

investigation of the crime, law enforcement officials obtained

court orders to intercept communications over various phones.

Among the calls the State intercepted were conversations between

speakers located outside of New Jersey, in Louisiana and

Florida. Defendant argues that allowing investigators in New

Jersey to intercept conversations between out-of-state parties

violated his constitutional rights.

The plain language of the Wiretap Act authorizes officials

to execute a wiretap order at any “point of interception” within

the investigators’ jurisdiction -- the place in New Jersey where

officials hear and monitor a conversation for the first time.

See N.J.S.A. 2A:156A-12h, -2v. The Act also requires that a

judge find there is probable cause to believe that a serious

crime was committed in New Jersey, and that particular

communications about that New Jersey offense may be obtained

through the interception. N.J.S.A. 2A:156A-10a-b. In those

ways, the Act requires a direct connection to New Jersey.

Various federal and state court decisions have interpreted

similar statutes and upheld them in the face of parallel

challenges. So long as the listening post is within the court’s

jurisdiction, courts have rejected claims to suppress recorded

conversations that took place out-of-state.

2
 In connection with defendant’s challenge, we find that New

Jersey’s Wiretap Act is constitutional. We also note that the

Legislature’s focus on the “point of interception” is a rational

approach in the age of cell phones. Because of the inherent

mobility of cell phones, it would be impractical, if not

impossible in some instances, for law enforcement to intercept

cell phone conversations if agents could only rely on orders

issued in the state where a call was placed or received. Under

that type of scheme, a court order would lose its force as soon

as a target crossed state lines with a cell phone in hand.

Both the trial court and Appellate Division rejected

defendant’s constitutional claim. We agree and affirm. We also

affirm the judgment of the Appellate Division as to several

other claims defendant raised.

I.

A.

We rely on the testimony at defendant’s trial for the

following facts. On August 23, 2006, Paul Duncsak was fatally

shot inside his home in Ramsey. Various circumstances and

events led to defendant’s arrest for Paul’s murder. (For ease

of reference, we use first names throughout this opinion.)

Defendant’s daughter Stacey married Paul in 1999, and the

couple had two children. Paul and Stacey divorced in 2003. As

part of a custody dispute, the Family Court granted them joint

3
custody of the children and named Paul the parent of principal

residence. In other words, the children lived with Paul. Under

a settlement agreement, Paul kept the family home in Ramsey, and

Stacey moved to a condominium.

Paul met Lori Adamo-Gervasi in 2005, and the two became

engaged the following year. They decided that Lori would move

into Paul’s house in Ramsey on August 24, 2006. In the weeks

leading up to that date, Paul stayed at Lori’s home but stopped

by the house in Ramsey each night to check emails and feed his

parrot.

Stacey, meanwhile, was unemployed and experienced financial

difficulties after the divorce. Stacey’s parents, defendant and

Dottie Ates, lived in a mobile home in Fort Pierce, Florida.

They parked their recreational vehicle on property owned by

Evelyn Walker, their other daughter. Evelyn lived in a house on

the property, which had a home office, and defendant often used

the computers in the office.

In the weeks before Paul’s murder, defendant traveled

extensively up north. He and Dottie drove from Florida to

Pennsylvania in August 2006. On August 14, they checked into a

campground for recreational vehicles in Kutztown, Pennsylvania,

using the alias “Ron Waverly.” They then rented a Dodge Durango

in Dottie’s name from a nearby car rental agency, with an option

to drive to New Jersey. By the next day, they had driven nearly

4
440 miles. Their travels included a trip to Ramsey where a

police officer made note of the Durango during a routine license

plate check. On August 15, they returned the Durango to the

rental agency and asked for a car with better gas mileage. This

time, they rented a Hyundai Sonata and again noted that they

planned to drive to New Jersey. They drove almost 1000 miles

before returning the car on August 18.

On August 23, the day Paul was murdered, Lori visited the

Ramsey house with a close friend to show her where she would

soon be living. Although it was very warm in the house, they

did not turn on the air conditioning. As Lori gave a tour of

the house, she noticed certain things that she considered very

unusual: a door to the furnace room, normally kept open for

ventilation, was closed; a bathroom door was locked shut; and a

Burger King wrapper had been left on the back porch.

Later in the afternoon, a neighbor’s son drove past Paul’s

house and spotted a blue Ford Explorer parked on the apron of

the driveway. At the time, Stacey drove a dark blue Ford

Explorer.

Paul called Lori at about 6:20 p.m. to relay that he was

driving home to feed the parrot. Paul and Lori stayed on the

phone as he pulled into the driveway and got out of the car.

Paul made a comment about the Burger King wrapper and told Lori

that she must have left him a present. Once inside the house,

5
Paul added that Lori had left the air conditioning on. Paul

suddenly screamed, “oh, oh no,” and then stopped speaking; Lori

heard the parrot screech in the background and also heard a

thud, “like a falling sound.” Lori called Paul’s name, but he

did not answer. She did not hear any gunfire and dialed 9-1-1.

The police arrived soon after and found Paul’s body in a

pool of blood. He had been shot at close range at least seven

times with bullets fired from a .22 caliber weapon. The police

inspected the house to make sure that the shooter was not

inside. An officer noticed that the French doors leading from

the bedroom to the back deck were unlocked. An examination of

the locks on the doors revealed that they had been picked in an

aggressive manner.

Hours after the shooting, beginning at around 3:30 a.m.,

Detective John Haviland tried to contact defendant at his home

and cell phone numbers. After an hour, he reached Dottie who

told him that defendant was in Louisiana visiting his sick

mother, Myra. Defendant left a voicemail message for the

Detective at 6:45 p.m. on August 24, and the two spoke later

that evening. Defendant said he left Florida on August 20,

arrived in Louisiana two days later in the evening, and was at

his mother’s home, in Sibley, Louisiana, when Paul was killed.

Defendant could not document his trip because he claimed he had

paid all his expenses in cash, slept in his car, and left his

6
cell phone behind. Myra also told the police that defendant had

arrived in Louisiana on August 22.

Defendant’s sister, Brenda, lived with Myra. She had not

seen her brother at any time from August 20 through 23. Dottie

called Brenda on August 24 and told her that if a strange man

were to call and ask, Brenda should say that defendant was in

Louisiana on August 22. Defendant made a similar request. At

first, Brenda confirmed defendant’s story, but she eventually

admitted to the police that defendant arrived in Louisiana on

August 24 and that she had lied when she said he arrived

earlier.

Pursuant to a search warrant, law enforcement officers

seized and examined computers from Evelyn’s home office in

Florida. Forensic tests revealed that someone had used one of

the computers to search the Internet for “how to commit the

perfect murder.” One article that was accessed suggested using

a .22 caliber weapon and an alias while traveling. Another

search turned up articles on how to pick a lock. Yet another

uncovered results about silencers. The police learned that an

order for a lock-picking kit and instruction book had been

placed online and shipped to “E. Ates” at defendant’s Florida

address. In addition, defendant ordered two books online, from

Amazon, under his own name: Workbench Silencers: The Art of

Improvised Designs and More Workbench Silencers.

7
 B.

At the center of this appeal are certain wiretap orders.

In a series of orders entered in September and October 2006, the

Honorable Marilyn C. Clark, P.J.S.C., a designated wiretap

judge, authorized the interception of telephone communications

of defendant, Dottie, Stacey, and others. Specifically, Judge

Clark authorized wiretaps on six telephone numbers: (201) 575-

xxxx, a cell phone assigned to Stacey; (201) 962-xxxx, a

landline phone assigned to Stacey; (772) 519-xxxx, a cell phone

registered to Evelyn but known to be used by defendant and

Dottie; (201) 248-xxxx, a prepaid cell phone known to be used by

defendant and Dottie; (772) 940-xxxx, a prepaid cell phone known

to be used by defendant; and (318) 205-xxxx, a cell phone

assigned to Brenda and known to be used by Brenda and Myra. Law

enforcement officers monitored all of the wiretaps in New

Jersey.

C.

On September 28, 2007, a Bergen County Grand Jury indicted

defendant and charged him with first-degree murder, N.J.S.A.

2C:11-3a(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-

3a(3); second-degree burglary, N.J.S.A. 2C:18-2; second-degree

possession of a weapon, a .22 caliber firearm, for an unlawful

purpose, N.J.S.A. 2C:39-4a; third-degree possession of a firearm

without a permit, N.J.S.A. 2C:39-5b; third-degree conspiracy to

8
hinder apprehension, N.J.S.A. 2C:5-2; fourth-degree obstructing

the administration of law, N.J.S.A. 2C:29-1; and third-degree

witness tampering, N.J.S.A. 2C:28-5a.1

Prior to trial, defendant moved to suppress conversations

intercepted between individuals outside New Jersey. In

particular, he sought to exclude conversations that involved

himself, a resident of Florida, Dottie, another Florida

resident, Myra, a Louisiana resident, and Brenda, who lived in

both Florida and Louisiana. Defendant claimed that the orders

were “extraterritorial” and that New Jersey officials should

have asked the proper authorities in Florida and Louisiana to

consent to the wiretaps. Defendant also asserted that the

Wiretap Act should be declared unconstitutional because it

permits New Jersey authorities to act outside their jurisdiction

and wiretap individuals with no connection to New Jersey.

The Honorable Harry G. Carroll, P.J.S.C., denied the

motion. He found that the wiretap orders Judge Clark entered

were valid and that the Act was not violated by intercepting and

monitoring out-of-state communications in New Jersey. Judge

Carroll also concluded that the Wiretap Act was constitutional.

Among other points, he observed that New Jersey has a

1
The indictment also charged Dottie, Brenda, and Myra with
conspiracy, hindering apprehension, and obstruction. Dottie was
also charged with witness tampering.
9
substantial interest in the investigation and prosecution of a

murder committed within its borders.

Judge Carroll did find that law enforcement officials

improperly intercepted one privileged telephone conversation

between defendant and his attorney. The trial court noted that

the recording “was not done intentionally but rather was

inadvertent,” and that there was “no evidence” that anyone in

the Bergen County Prosecutor’s Office listened to the

conversation. The court found it “even more troubling” that,

although the officer on duty reported the mistaken interception

to his supervisors, no one promptly reported the matter to the

wiretap judge -- as they should have. In addition, the State

disclosed hundreds of recorded calls on eighty compact discs in

discovery but did not apprise defendant of the violation -- as

it should have.

Judge Carroll suppressed the privileged call, “the entire

contents of all intercepted communications obtained thereafter,”

and “any evidence derived from those intercepted

communications.” He did not grant defendant’s request to

dismiss the indictment.

The trial lasted about twenty days that spanned from

September 23 through November 6, 2009. As part of the defense

case, defendant testified and denied the charges. The jury

found him guilty on all counts. After merging various counts,

10
the trial court sentenced defendant on the first-degree murder

count to life imprisonment subject to a period of 63.75 years of

parole ineligibility. The court imposed a consecutive five-year

term for witness tampering, as well as other concurrent

sentences.

Defendant appealed and renewed his argument that the

Wiretap Act is unconstitutional. In a published opinion, the

Appellate Division affirmed his conviction. State v. Ates, 426

N.J. Super. 521, 538 (App. Div. 2012). The appellate panel

rejected defendant’s argument about the Act’s “extraterritorial”

reach and noted that the statute “requires a nexus with New

Jersey by insisting that, at the very least, the listening post

be located in New Jersey.” Id. at 533. As the panel observed,

“this does not ‘usurp [f]ederal authority’ because federal law

permits the same thing.” Ibid.

The panel also rejected defendant’s other arguments: that

the remedy imposed by Judge Carroll for the unlawful

interception of the attorney-client conversation was inadequate;

that the prosecutor’s remarks during summation about a defense

medical expert were improper and prejudiced defendant; that it

was prejudicial error to admit in evidence a reenactment of a

drive from New Jersey to Louisiana; and that the cumulative

effect of the above errors required reversal. Id. at 531, 534-

38.

11
 We granted defendant’s petition for certification. 213

N.J. 389 (2013). We also granted the Attorney General leave to

appear as amicus curiae.

II.

Defendant argues that the Wiretap Act is unconstitutional

“because it permits New Jersey law enforcemen[t] officials to

exceed their jurisdiction and intercept phone calls from out of

state individuals who have no connection with New Jersey.” As

applied to this case, he contends that the Act violates both the

federal and state constitutions. He asserts that the law

“eradicates all jurisdictional boundaries between the states”

and “usurps Federal authority.” He also maintains that the

statute enables police officers to exceed the jurisdictional and

territorial limits on their authority. Defendant contends that

just as New Jersey officials are required to enlist the aid of

another state to search an out-of-state home, they should seek a

wiretap order to monitor phone calls between residents of other

states from a judge in those states. Defendant argues that the

Act “creates an artificial New Jersey connection” by defining

the “point of interception” as the location where the

conversation is monitored.

Defendant advances three other arguments as well. First,

he claims that the indictment should have been dismissed because

law enforcement officials illegally intercepted a conversation

12
he had with his attorney and then failed to report the violation

immediately to the wiretap judge. Second, defendant asserts

that the prosecutor improperly commented in summation about the

testimony of a defense medical expert, in a manner that denied

him a fair trial. Third, defendant claims that the trial court

erred when it admitted evidence that a police officer drove from

Ramsey to Sibley, Louisiana in twenty-one hours. Three years

after the murder, a detective drove the route in an effort to

prove that the drive could take less than twenty-four hours.

(Other evidence showed that defendant was with his mother in

Sibley twenty-four hours after the murder.) Defendant argues

that evidence of the reenactment prejudiced him because the

State did not notify him of the drive in advance and waited two

weeks, until the start of jury selection, to disclose the

results.

The State maintains that the Wiretap Act is constitutional

and does not confer extraterritorial powers on New Jersey

officials. It argues that the Act defines the point of

interception as the location of the listening post, and it

asserts that many state and federal courts have upheld similar

statutory language. From a policy standpoint, the State submits

that it is preferable to have a single jurisdiction authorize

and monitor multiple wiretaps to avoid unnecessarily long

periods of interception.

13
 The State counters defendant’s other arguments as well. It

argues that the trial court properly declined to dismiss the

case because of the accidental recording of a conversation

between defendant and his attorney, which no one in the Bergen

County Prosecutor’s Office heard. With regard to the

prosecutor’s summation, the State contends that the record fully

supported the prosecutor’s comments, that defendant did not

object at trial, and that the remarks did not prejudice him.

The State also argues that the trial court properly admitted

relevant evidence about the amount of time it took a detective

to drive from Ramsey to Sibley, Louisiana.

The Attorney General entered this case to defend the

constitutionality of the Wiretap Act. The Attorney General

maintains that the Act requires a nexus with New Jersey because

the listening post must be located here; that the law does not

usurp federal authority, which similarly allows for the

interception of calls outside the jurisdiction of a court, so

long as the calls are acquired or monitored in the court’s

jurisdiction; and that federal and state courts have repeatedly

rejected the same jurisdictional arguments that defendant now

raises. In addition, the Attorney General submits that no

legitimate privacy interest would be enhanced if officers had to

seek wiretap orders from every jurisdiction where a target might

14
be expected to travel. That approach, the Attorney General

asserts, would be unreasonable and unsound.

III.

We begin with defendant’s claim that the Wiretap Act is

unconstitutional because it allows law enforcement officers to

intercept conversations between individuals who are out of the

state and have no connection to New Jersey. At oral argument,

defendant claimed that only a judge from the state where an

individual resides can authorize a wiretap. We find no support

for defendant’s arguments and uphold the constitutionality of

the Wiretap Act.

A.

The Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution guard

against unreasonable searches and seizures. U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7. Both provisions extend to the

interception of phone conversations by law enforcement

officials.

In 1967, the United States Supreme Court issued two

landmark opinions that addressed electronic surveillance of

phone conversations under the Fourth Amendment. See Berger v.

New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967);

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d

576 (1967). The decisions also outlined certain principles to

15
safeguard individual privacy rights in this area. Congress

responded the following year by enacting Title III of the

Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520.

Title III established minimum standards for federal and

state law enforcement officials to follow when seeking to

intercept wire, oral, and electronic communications. 18

U.S.C.A. 2516(2). In 1968, soon after the law was passed, the

New Jersey Legislature enacted the Wiretap Act, N.J.S.A.

2A:156A-1 to -26, and modeled it after Title III. See In re

Wire Commc’n, 76 N.J. 255, 262 (1978); State v. Diaz, 308 N.J.

Super. 504, 509-10 (App. Div. 1998) (citations omitted); State

v. Sanchez, 149 N.J. Super. 381, 394-97 (App. Div. 1977).

We start our analysis with the Act itself. The statute

makes it unlawful for any person to purposely intercept any

wire, electronic, or oral communication. N.J.S.A. 2A:156A-3a.

The law also contains certain exceptions. It expressly empowers

the Attorney General and county prosecutors to apply to a judge

for an order authorizing law enforcement officers, who are

investigating particular crimes, to intercept wire, electronic,

and oral communications. N.J.S.A. 2A:156A-8. The Act lists

those crimes, which include murder, kidnapping, gambling,

robbery, bribery, and other violations of New Jersey’s criminal

code. Ibid. Thus, the Act permits interceptions to investigate

certain types of criminal activity in this State. See State v.

16
Worthy, 141 N.J. 368, 380 (1995); see also N.J.S.A. 2C:1-3a

(providing broad definition of territorial jurisdiction).

A judge must make a number of findings to authorize a

wiretap. In part, the judge must find probable cause to believe

that

a. The person whose communication is to be
intercepted is engaging or was engaged over
a period of time as a part of a continuing
criminal activity or is committing, has or
had committed or is about to commit an
[enumerated] offense . . .;

b. Particular communications concerning
such offense may be obtained through such
interception; [and]

c. Normal investigative procedures with
respect to such offense have been tried and
have failed or reasonably appear to be
unlikely to succeed if tried or to be too
dangerous to employ.

[N.J.S.A. 2A:156A-10a-c.]

The first two findings require a direct link to New Jersey:

that a listed offense -- that is, a particular offense

punishable in New Jersey -- has been, is being, or will be

committed, and that interception may provide evidence of the New

Jersey crime.

An “intercept” is defined in the Act as “the aural or other

acquisition of the contents of any wire, electronic or oral

communication through the use of any electronic, mechanical, or

other device.” N.J.S.A. 2A:156A-2c. The Act provides that a

17
wiretap order “may be executed at any point of interception

within the jurisdiction of an investigative or law enforcement

officer executing the order.” N.J.S.A. 2A:156A-12h. Section

2A:156A-2v defines “point of interception” as the site where the

“officer is located at the time the interception is made” --

commonly referred to as the “listening post.” In other words, a

wiretap order signed by a New Jersey judge can empower

investigators located in New Jersey to monitor intercepted

conversations here, even if both parties to the call are outside

the State.

B.

The plain language of the Wiretap Act thus authorizes

investigators to intercept out-of-state calls at a listening

post in New Jersey. By defining “intercept” to include the

“aural acquisition” of a communication, and identifying the

“point of interception” as the listening post, investigators at

a listening post in New Jersey may intercept and hear phone

conversations between individuals located in other states. In

the context of this case, the statute permitted the Bergen

County Prosecutor to apply for a wiretap order in New Jersey and

to execute that order at a point of interception in New Jersey.

The question before the Court, then, is whether the Act is

constitutional.

18
 The Wiretap Act must be strictly construed to safeguard an

individual’s right to privacy. See Worthy, supra, 141 N.J. at

379-80 (citing State v. Catania, 85 N.J. 418, 437 (1981); State

v. Cerbo, 78 N.J. 595, 604 (1979); Wire Commc’n, supra, 76 N.J.

at 260). As with any statute, though, we presume the law is

constitutional. State v. One 1990 Honda Accord, 154 N.J. 373,

377 (1998) (citations omitted); State v. Muhammad, 145 N.J. 23,

41 (1996). Defendant must shoulder the burden to overcome that

strong presumption. See Honda Accord, supra, 154 N.J. at 377

(citation omitted).

Defendant contends that the Wiretap Act unconstitutionally

permits New Jersey officials to intercept calls from out-of-

state citizens who have no contact with New Jersey. He argues

that the Act creates an “artificial connection” to New Jersey

with its definition of “point of interception.” We do not agree

with this description of the law. As discussed above, the Act

requires an actual nexus to New Jersey. Before judges can enter

a wiretap order, they must find probable cause to believe (1)

that a listed, serious offense under New Jersey law has been, is

being, or will be committed, and (2) that communications about

the criminal activity in New Jersey may be obtained through the

interception. N.J.S.A. 2A:156A-10a-b.

The State can only prosecute crimes that occur within its

territorial borders. State v. Denofa, 187 N.J. 24, 36 (2006)

19
(citing N.J.S.A. 2C:1-3a(1) (“[A] person may be convicted under

the law of this State of an offense committed by his own conduct

. . . if . . . [e]ither the conduct which is an element of the

offense or the result which is such an element occurs within

this State.”); State v. McDowney, 49 N.J. 471, 474 (1967)). As

a result, the twin findings required under the Act connect the

interception of communications to activity in New Jersey. And,

of course, the Act requires that the listening post be located

“within the jurisdiction” of the law enforcement officer -- that

is, within New Jersey. See N.J.S.A. 2A:156A-12h.

In a related argument, defendant claims that the Act is

unconstitutional because it eradicates all jurisdictional

boundaries and usurps federal authority. We examine this

contention to assess if the law violates the federal or state

constitution.

Federal case law does not support defendant’s position.

Because the Wiretap Act is closely modeled after Title III, we

give careful consideration to federal decisions interpreting the

federal statute. See Wire Commc’n, supra, 76 N.J. at 262; Diaz,

supra, 308 N.J. Super. at 510.

Federal circuit courts have consistently upheld wiretaps

based on the location of the listening post, and no circuit

court has found Title III unconstitutional on that ground. The

Second Circuit, for example, addressed the issue in United

20
States v. Rodriguez, 968 F.2d 130 (2d Cir.) (interpreting 18

U.S.C.A. § 2518(3)), cert. denied, 506 U.S. 847, 113 S. Ct. 139,

121 L. Ed. 2d 92 (1992). In that case, government agents

suspected that individuals sold crack in New York City and

stored the cash proceeds at a restaurant in New Jersey. Id. at

133-34. Pursuant to an order authorized by a federal judge in

New York, the investigators wiretapped four telephones at the

restaurant. Id. at 134.

The defendants challenged the wiretaps on the ground that

the district court in New York did not have jurisdiction to

authorize wiretaps of New Jersey phones. Ibid. The Second

Circuit rejected the argument and upheld the wiretaps. Id. at

133. The panel found that the place of interception could be at

either of two locations: where the tapped phone was located (in

New Jersey), or where the police first monitored or listened to

the communication (in New York). Id. at 136. As to the latter,

the panel explained that Title III defines interception as the

“aural” acquisition of the contents of the call, and because

“aural,” by definition, “‘pertain[s] to the ear or the sense of

hearing,’” the interception also occurs where the call is first

heard. Ibid. (citation omitted).

The court in Rodriguez also found that its approach helped

protect individual privacy rights:

21
 [W]here the authorities seek to tap
telephones in more than one jurisdiction and
to monitor them in a single jurisdiction,
there are sound policy reasons for
permitting a court in the jurisdiction where
all of the captured conversations are to be
heard to grant the authorization. One of
the key goals of Title III is the protection
of individual privacy interests from abuse
by law enforcement authorities. For
example, Title III requires that a wiretap
authorization not allow the period of
interception to be “longer than is necessary
to achieve the objective of the
authorization.” If all of the
authorizations are sought from the same
court, there is a better chance that
unnecessary or unnecessarily long
interceptions will be avoided.

[Ibid. (citations omitted).]

Other federal courts have followed Rodriguez and held that

judges can authorize wiretaps when the listening post -- and

thus the interception -- is within the court’s jurisdiction,

even if the phone is located elsewhere. See United States v.

Luong, 471 F.3d 1107, 1109-10 (9th Cir. 2006) (finding that

court in Northern District of California, where listening post

was located, had authority to issue wiretap order for mobile

phone subscribed to billing address in Eastern District), cert.

denied, 552 U.S. 1009, 128 S. Ct. 531, 169 L. Ed. 2d 371 (2007);

United States v. Denman, 100 F.3d 399, 403-04 (5th Cir. 1996)

(finding that court in Eastern District of Texas, where

listening post was located, had authority to issue wiretap order

for telephones located in Southern District), cert. denied, 520

22
U.S. 1121, 117 S. Ct. 1256, 137 L. Ed. 2d 336 (1997); United

States v. Giampa, 904 F. Supp. 235, 278 (D.N.J. 1995) (finding

that federal judge in New Jersey, where listening post was

located, had authority to issue wiretap order for telephone in

Southern District of New York), aff’d, 107 F.3d 9 (3d Cir.

1997); United States v. Burford, 755 F. Supp. 607, 610 (S.D.N.Y.

1991) (rejecting constitutional and statutory challenges and

finding that federal judge in New York, where listening post was

located, had authority to issue wiretap order for telephone in

Maryland), aff’d, 986 F.2d 501 (2d Cir. 1992); see also United

States v. Ramirez, 112 F.3d 849, 852-53 (7th Cir.) (finding

interception of cell phone valid under federal law regardless of

where phone or listening post is located), cert. denied, 522

U.S. 892, 118 S. Ct. 232, 139 L. Ed. 2d 163 (1997).

State courts have taken a similar approach. In Davis v.

State, 43 A.3d 1044, 1055 (Md. 2012), Maryland’s highest court

upheld a wiretap order issued by a Maryland judge for a cell

phone registered to a Virginia address. During the period of

interception, the phone was in Virginia, but detectives

monitored calls from Maryland. Id. at 1050. Relying on the

language and history of the Maryland statute as well as federal

case law interpreting Title III, the Davis court held that

“interception” of a communication “occurs where law enforcement

officers capture or redirect . . . the contents of the

23
communication” and “originally” hear it. Id. at 1048. If the

listening post is located within the wiretap court’s territorial

jurisdiction, then “neither the physical location of the mobile

phone at the time the call was placed” nor “the recipient of the

call are material.” Ibid. The Maryland court also noted that a

different outcome would present “an enormous logistical and

technological challenge to law enforcement” officials if an

investigation involved a cell phone that crossed state lines.

Id. at 1054.

The majority of courts that have interpreted state wiretap

laws agree. See United States v. Tavarez, 40 F.3d 1136, 1138

(10th Cir. 1994) (interpreting Oklahoma law to allow district

attorney for Judicial District 21, where listening post was

located, to apply for wiretap order for telephones in District

19); State v. McCormick, 719 So. 2d 1220, 1223 (Fla. App. 1998)

(finding that Melbourne police officer had authority under

Florida law to seek wiretap order for cell phone subscribed to

resident of Merritt Island because listening post was in

Melbourne), review denied sub nom. Mitchell v. State, 732 So. 2d

327 (Fla. 1999); see also Luangkhot v. State, 736 S.E.2d 397,

427 (Ga. 2013) (holding that judges have authority under state

law to issue wiretap warrants if tapped phone or listening post

is located in judicial circuit); but see Castillo v. State, 810

S.W.2d 180, 184 (Tex. Crim. App. 1990) (holding under Texas law

24
that interception occurs where wiretap device, not listening

post, is located). Aside from the Appellate Division’s ruling

in this case, there do not appear to be any reported decisions

in New Jersey which directly address defendant’s argument.

In support of his constitutional claim, defendant draws an

analogy to the search of a home. He contends that because law

enforcement officers must seek a search warrant from a judge in

the state where a residence is located, they should be required

to follow the same approach to intercept phone calls between

out-of-state parties. In this case, he argues that only a judge

in Florida or Louisiana could authorize officers to intercept

calls in those states.

There are obvious differences between searching a fixed

location, like a home, and intercepting a phone call on a mobile

phone. As the court in Burford noted, “[s]earch warrants are

issued to permit seizure of tangible physical evidence which is,

by definition, in only one location. Wiretaps, in contrast,

involve seizure of transitory intangible evidence.” Burford,

supra, 755 F. Supp. at 611.

That distinction presents real, practical concerns. If

out-of-state intercepts could only be authorized by a judge in

the jurisdiction where the phones are located, how could

officers lawfully intercept cell phone calls? Suppose a judge

in one state issued a wiretap order, and the cell phone user

25
crossed the state’s border. Would another warrant, signed by a

judge in the neighboring state, be needed? See Davis, supra, 43

A.3d at 1054. Would law enforcement officers be expected to

obtain multiple warrants for the same phone in advance? How

would they know where a target might travel and where a call

would be made from or received? The inherent mobility of the

modern cell phone could defeat even the most responsible efforts

to monitor it. In short, defendant’s reading of the Act would

make it impractical to intercept cell phone conversations.

Viewed in that light, the Act’s definition of “point of

interception” -- the site where an officer is located when an

interception is made, N.J.S.A. 2A:156A-2v -- makes rational

sense.

At the heart of defendant’s argument is the notion that his

constitutional right to privacy entitles him to have a judge in

the state where he resides, Florida, sign a wiretap order for

his cell phone, rather than a judge in New Jersey, where the

wiretap order is executed. But defendant does not provide any

factual or legal basis to explain why his privacy rights were

violated when a New Jersey judge reviewed a wiretap application

for his phone.

The decisions discussed above correctly concluded that

courts in different states -- where the phone is located and

where it is first monitored -- can issue a wiretap order. See,

26
e.g., Rodriguez, supra, 968 F.2d at 136. Judges in both states

would have to ensure that the prosecutor provided an adequate

basis for an order. At a minimum, the application would have to

meet the requirements of Title III. See 18 U.S.C.A. § 2516(2);

United States v. Marion, 535 F.2d 697, 702 n.9 (2d Cir. 1976);

Commonwealth v. Vitello, 327 N.E.2d 819, 833-34 (Mass. 1975)

(citations omitted). In other words, judges in both states

would have to make the necessary probable-cause findings

designed to protect an individual’s privacy rights. See Worthy,

supra, 141 N.J. at 379-80 (citations omitted). In New Jersey,

Florida, or Louisiana, which all have a connection to the

intercepted communications in this case, defendant’s Fourth

Amendment rights would be protected.

We agree with the many federal and state courts that have

allowed judges in the state where the listening post is located

to authorize a wiretap. We conclude that the Wiretap Act is

constitutional under both the federal and state constitutions.

IV.

Defendant raises several other challenges as well. He

claims that the trial court’s remedy for the unlawful, albeit

inadvertent, interception of a privileged communication was

inadequate; that the prosecutor’s summation was improper; and

that the court erred by admitting evidence of a reenactment of a

drive from New Jersey to Louisiana. As to each of those points,

27
we affirm substantially for the reasons stated in Judge Fisher’s

thoughtful opinion. Ates, supra, 426 N.J. Super. at 534-38.

V.

For the reasons stated above, we affirm the judgment of the

Appellate Division.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in CHIEF JUSTICE RABNER’s opinion.

28
 SUPREME COURT OF NEW JERSEY

NO. A-52 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD RONALD ATES a/k/a RON
WAVERLY,

Defendant-Appellant.

DECIDED March 18, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7