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, 
2

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.
1

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-
2

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. 
3

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 
4

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 
5

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, 
6

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 
7

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.
8

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 
9

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. 
10

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, 
11

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.
12

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 
13

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. 
14

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
15

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 
16

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. 
17

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 
18

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. 
19

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-ofstate 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)
20

(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 
21

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:
22

[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 
23

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 
24

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 
25

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 
26

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, 
27

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, 
28

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.
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