Text messages and cell phone calls between a husband and wife intercepted by police wiretaps are protected by the marital communications privilege. State v. Terry, 2013 N.J. Super. Lexis 71.
Teron Savoy was a top drug dealer in Monmouth and Ocean counties. His wife, Yolanda Terry, sometimes helped him with his business, picking up payments due, etc.
After arresting and charging Savoy with a litany of offenses, including being a leader of a drug trafficking network and possession of heroin with intent to distribute, the state said it had texts and phone conversations between the husband and wife to use as evidence. Savoy argued that the marital communications privilege forced the exclusion of these items.
At the trial court level, the judge found that wiretap officers overhearing marital communications could testify about them and that there was a crime–fraud exception to the privilege.
The Appellate Division disagreed and overturned the lower court’s decision on a number of grounds, but also rejected Savoy’s argument that the State did not even meet the threshold requirements to be allowed to wiretap his cellphone.
In rejecting Savoy’s argument, the Court found that “special needs” is usually the standard, under the New Jersey Wiretap Act, required to wiretap a marital home. However, it found that this standard does not apply to cell phones even if it is used to talk to a spouse.
The Court continued that while the marital communications privilege is nullified if the communication is “overheard either accidentally or by eavesdropping,” that is not applicable here. The Wiretap Act specifically states, “No otherwise privileged wire, electronic, or oral communication intercepted…shall lose its privileged character.” N.J.S.A. 2A:156A-11
Finally, the Court dismissed the crime-fraud exception (communication aiding in the commission of a crime) as inapplicable as well. It found that the exception does not exist in New Jersey statutes, and neither itself or the trial level court had the power to create it.