In State v. Ates (A-2308-09T3), the New Jersey Appellate Division recently held that the New Jersey Wiretapping and Electronic Surveillance Control Act (“New Jersey wiretap act”) is not unconstitutional merely because it permits New Jersey law enforcement officers to intercept telephone calls between individuals located outside of New Jersey, as long as the listening post is within New Jersey. It was authorized under the act for law enforcement personnel to thus intercept calls between individuals in Florida and Louisiana when the listening post was in this state. However, when the intercepted call was between the defendant and his attorney, the attorney-client privilege applied and suppression was the appropriate remedy.
New Jersey criminal defense lawyers should be aware that law enforcement officials within New Jersey are therefore constitutionally permitted under the wiretap act to intercept phone calls between individuals outside of New Jersey. These calls can potentially be used as evidence against clients, but New Jersey criminal attorneys should seek suppression of this evidence on other grounds that may be pertinent, such as attorney-client privilege. It is also critical to be aware that even your telephone conversations and email messages with your criminal defense attorney may be monitored by law enorcement investigators. All sensitive communications with your attorney should always take place in person. Further, you should never speak to a third party about your case, as your communications to others may be monitored. For further information, pleas see our article on law enorcement attempts to enlist Congress to enable monitoring of cell phone communications. This article appears in our web site. If you have any concerns about communication monitoring, please call us to set up an appointment to discuss your concerns in our offices in Monmouth, Middlesex, Union or Essex County.