Situation: Police officers in Newark, NJ made a request to place a wiretap on the phone of a suspected drug dealer in order to monitor his calls to an indicated drub trafficker who has agreed to let the police tap his line. The request for the wiretap order was made in conformity with 18 U.S.C. 2511(2)(c); however, the officers did not apply to the county prosecutor for a determination of reasonable suspicion of criminal activity, as required for all wiretaps conducted pursuant to New Jersey law by N.J. Stat. 2A:156A-4c. The wiretap yields evidence of a conspiracy to distribute cocaine throughout New Jersey, New York, and Connecticut.

The Newark Police Department's legal counsel informs the Chief of Police that the New Jersey Supreme Court's decision in State v. Worthy, 661 A.2d 1244 (1995), makes the wiretap evidence inadmissible in State court against the defendant, due to the violation of the State wiretap statute. However, he also informs the Chief that, in his opinion, it is not unlawful for the State police to turn over the tapes to the United States Attorney's Officer in Newark, because no federal laws were violated in the interception. The State police do so, which leads to a conviction of the defendant upon federal narcotics trafficking charges.

Will the evidence be suppressed in federal court?

Answer Section

Sources: 18 U.S.C. 2516(2); United States v. Shaffer, 520 F.2d 1369 (3^rd Cir. 1975); United States v. McNulty, 729 F.2d 1243 (10^th Cir. 1984); United States v. D'Antoni, 874 F.2d 1214 (7^th Cir. 1989).

Answer: Section 2516(2) of Title III requires all wiretapped communications to be intercepted "in conformity with [Title III] and the applicable State statute." Many courts, such as the Tenth Circuit in McNulty, interpret this provision to require conformity with a more stringent state statute for any interceptions which are conducted by officers acting under color of state law. See also, United States v. Bascaro, 742 F.2d 1335 (11^th Cir. 1984); U.S. v. Manfredi, 488 F.2d 588 (2d Cir. 1973). Other courts, such as the the Seventh Circuit in D'Antoni, rely upon he legislative history of Title III to conclude that the federal statute was only designed to preempt less restrictive state laws, and that more restrictive state laws do not apply in federal court. The Third Circuit, in Shaffer, the basis for this problem, so concluded, and held that evidence obtained by state officers would not be suppressed in federal court if those officers did not violate any of the explicit provisions of Title III.

Variation: Same facts as in original case, but the New Jersey officers did not obtain the prior approval of the county prosecutor for their wiretap, as required by the NJ statute. However, NJ law contains an additional requirement that officers conducting a wiretap seal every tape immediately upon the completion of the recording, to protect against claims of tampering with the evidence. The NJ officers failed to seal their tapes immediately after interception, and the State trial court suppressed the evidence in a hearing. The officers turned the tapes over to the federal prosecutors, who used them to indict the defendant on federal narcotics charges. Will the tapes be suppressed as evidence in federal court?

Source: U.S. v. Sotomayor, 592 F.2d 1219 (2d Cir. 1979).

Answer: Because the State statutory requirement pertained only to post-interception procedure, rather than to the actual interception, and because the State officers' error was procedural rather than substantive in character, most courts would not interpret 18 U.S.C. 2516(2) to require conformity with the state statute. In Sotomayor, the basis for this variation, the court held that, although it would suppress wiretap communications which were intercepted in violation of a substantive state statutory prohibition, it would not suppress communications which were obtained in violation of State requirements for post-interception procedure.

Peter Kogan

Emory Law