Legal Vs. Illegal Wiretapping by Police and Private Citizens in New Jersey


You sit down with a friend to lunch at a restaurant and sit outside on the patio. The two of you catch up on the latest in your lives, including your divorce and custody battle. You confide in your friend that your children do not want to visit with their father. You further disclose that you plan to take them out of state to live with your relatives. Without your knowing, your friend recorded your conversation with her and gave the recording to the police to prevent a kidnapping. When the police arrested you, they knew about the attempted kidnapping and other criminal activity they heard in your telephone conversations. Since you never knew your friend recorded the conversation, you object to the state introducing the recordings into evidence to prove your attempted kidnapping and other charges. You believe your friend and the police invaded your privacy and broke the law. But did they? Here, our criminal defense lawyers explore the topic of wiretapping when it comes to criminal investigations by police and interpersonal interactions in New Jersey. If you have specific questions after being arrested and charged with a crime based on a recording of your conversation, contact our Ocean County law office to speak with a member of our team in a free initial consultation. With vast experience handling criminal cases in our lengthy careers, our defense attorneys are prepared to address all of your questions and concerns. You can reach us anytime at (848) 238-2100 for dedicated counsel.

Authorization for Police Surveillance and Conversation Recording

The law governing police electronic surveillance of telephone conversations is the New Jersey Wiretapping and Electronic Surveillance Control Act, beginning in section N.J.S.A. 2A:156A. The law prohibits government agents from listening to your communications over wire or other electronic devices to gather or intercept information. If the government wishes to intercept data by wiretapping communications, they must first obtain court permission by filing an application. In it, the requesting officer must detail the reasons and basis for the wiretap. Then, the police officer or other government agent must seek an Order of Authorization to wiretap a suspect involved in certain crimes specified by law.

Starting with the court application that discloses an ongoing investigation, a police officer must get permission from the Attorney General or County Prosecutor before getting a judge’s authorization for the intercept. Once before the judge, the applicant officer must show probable cause for needing the wiretap. Next, the officer declares that they believe the person whose communications they want to wiretap is involved in one or more of the criminal activities listed in N.J.S.A. 2A:156A-8. Those crimes include armed burglary, arson, bribery, gambling, endangering the welfare of a child, escape, forgery, kidnapping, murder, robbery, theft, certain weapons charges, criminal drug possession charges, organized illegal activities, and conspiracy to commit any of the specified crimes. Finally, when the judge authorizes the wiretapping of a specific electronic device, they will enter the order for surveillance with or without restrictions on how the police may conduct the intercept.

What are the Major Exceptions to the Wiretap Statute?

However, not all wiretapping requires court authorization. For example, telephone calls on police phone lines, conversations with police officers, conversations between incarcerated inmates, telephone company intercepts, and consented-to recorded communications do not require court authorization as exemptions to the Wiretapping and Electronic Surveillance Control Act (The Act). So, unless the government agent has a proper court authorization under the Act they dutifully follow, or an exemption applies to the intercept, it is illegal to wiretap. In addition, victims of unlawful wiretapping may file a motion to suppress the wiretapped contents from entering the court as evidence against them.

Can you Record Conversations in New Jersey?

Even if a judge denies authorization to wiretap a suspect’s telephone, they can still get a warrant to search your computer for stored emails. And they can accept recorded conversations from a private citizen who recorded their conversation with you, as long as they were party to the discussion and gave their permission. Moreover, a private citizen does not have to follow the same rules under the Act as the government does. Thus, it is not illegal for a private citizen to inform the police of criminal activity if they recorded a conversation they participated in, even if the other party did not know about the recording. Thus, in the civil divorce arena, recorded conversations may be damning for one parent in a divorce proceeding in which child custody is at issue. However, recorded conversations of other people’s conversations that did not include the person recording the conversation are not legal.

Are Recorded Conversations Admissible in New Jersey Courts?

While it may seem unfair that someone secretly recorded their conversation with you without your knowledge, the law in New Jersey permits the recording’s use as evidence in a criminal case with only one party’s consent to the recording. However, you may still be able to challenge the evidence and file a motion to suppress any other evidence the police obtained by unauthorized wiretapping of your telephone, whether it be a land line or your personal cell phone. When you call a criminal defense attorney on our team who can answer your questions about wiretapping, recorded conversations, and New Jersey law, you may ease your mind that there are strategic legal actions we can take on your behalf. For instance, if there were legal violations or government overreach, our lawyers can defend you against unlawful evidence seizure of any kind, whether through a defective warrant or illegal search or seizure.

Charged with a Criminal Offense after Recording You without Consent in Ocean County NJ?

If you have been arrested and charged with a criminal complaint after a law enforcement agency or a private citizen wiretapped your phone, we can help. Contact our criminal defense firm in Ocean County to discuss your case with an attorney free of costs. We will ask you about what happened and what you know. If you ultimately choose to hire us to represent you, we will do own our investigation, contacting the police, the prosecutor, and witnesses to find out what the state has against you and what they plan to do to prosecute you. Finally, our criminal lawyers can appear in court with you to represent your interests and defend your rights every step of the way in your case, ensuring the prosecutor and the state’s officers follow the criminal and evidentiary laws, rules, and procedures. In addition, you have constitutional rights guaranteed to all citizens that the state must not abridge or forfeit. Therefore, your arrest must be conducted according to the law, just as the wiretapping that the police conducted. The Act is clear on what constitutes a legal wiretap.

If your arrest was due to incriminating evidence obtained by a wiretap, speak with one of our criminal defense lawyers who understand the intricate rules about how technology and the law intersect. Since technology is ever evolving and the law is often slow to catch up to the state-of-the-art electronic communication devices, you want to place your confidence a legal team that has done extensive research on the wiretapping statutes and various technologies. In addition, your lawyer should be well versed in what evidence may be legally obtained from computers by warrant. Some information on computers may be privileged and private, so that the warrant must carefully restrict which information is legal to seize and which is not. Do not take chances with a complex legal battle. Instead, call on a qualified attorney at our office in Point Pleasant anytime at (848) 238-2100 for a free consultation.

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.