State v. Diaz

• Citation: 706 A.2d 264,308 N.J.Super. 504
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Siobhan DIAZ, Defendant-Appellant.
• Decision Date: 27 February 1998
• Court: New Jersey Superior Court – Appellate Division

Page 504

308 N.J.Super. 504

706 A.2d 264

STATE of New Jersey, Plaintiff-Respondent, v. Siobhan DIAZ, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 13, 1998.

Decided Feb. 27, 1998.

Gerard E. Hanlon, Morristown, for defendant-appellant (Mr. Hanlon, on the brief).

Joseph Connor, Jr., Assistant Morris County Prosecutor, for plaintiff-respondent (John B. Dangler, Morris County Prosecutor, attorney; Mr. Connor, Jr., on the brief).

Before Judges STERN, KLEINER and KIMMELMAN.

The opinion of the court was delivered by

STERN, J.A.D.

We granted leave to appeal to consider the admissibility of a videotape, which includes a sound recording, made by parents in their own home of the conduct of their child's daytime "nanny." We now affirm the denial of defendant's motion to suppress. In so doing, we recognize that a violation of the New Jersey Wiretapping and Electronic Surveillance Control Act ("the Wiretap Act" or "the Act"), N.J.S.A. 2A:156A-1 to -34, may require that evidence be suppressed even in the absence of a state or federal constitutional violation or the ability of a defendant to successfully obtain suppression of evidence under R. 3:5-7, the motion to suppress rule. See N.J.S.A. 2A:156A-21; see also, e.g., State v. Robinson, 224 N.J.Super. 495, 499-501, 540 A.2d 1313 (App.Div.1988).

I.

Defendant was indicted for second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two), after the parents of the infant child for whom she was hired to care contracted with a private company to install an audio-video surveillance system in their own home. They did so after noticing bruises on the infant's body which defendant could not explain when asked about their origins. ¹ For present purposes, we must assume that the videotape reveals both physical and verbal abuse because the State seeks admission of portions of the recording depicting such conduct. The videotape was turned over to the prosecutor, and following her indictment, defendant moved to suppress both the video and audio portions of the videotape. She argued that the recording constituted a violation of the Act. The Law Division denied the motion after it determined that, although the Act applied to a videotape recording with a sound component, because of "the simultaneous use of a camera and a microphone," the recording in this case was admissible under the "consent" exception to the statute, N.J.S.A. 2A:156A-4d.

Defendant argues that strict statutory construction required of the Wiretap Act prevents the recognition of the "vicarious consent" theory adopted by the trial judge. Although agreeing with the trial judge's conclusion, the State contends that a videotape surveillance does not fall within the purview of the Act. However, it advocates application of the "vicarious consent" theory if we conclude that it does.

We agree with the State that the video portion of the recording does not come within the scope of the Wiretap Act. We disagree with its position as to the Act's application with regard to the audio portion of the videotape, but conclude that it is admissible because of the Act's "consent" provision.

II.

There is little material dispute as to the governing facts of this case for purposes of the motion to suppress.

In January 1996, J.S. and D.S., the parents of five-month old T.S., hired defendant as a daytime nanny to care for their infant daughter. Defendant began working in their Randolph home in February 1996. The parents "soon became concerned about how defendant was treating their daughter. They noticed bruises on [the infant] that defendant could not explain." Because of their concern, the parents hired "Babywatch," a private company, to have video surveillance equipment installed in their home. On May 2, 1996, the camera, with sound recording capabilities, was installed in their family room, disguised as part of an air filtration system.

A videotape recording was made on May 2 and May 3, 1996. In the words of the trial judge, "[w]hen the parents viewed a videotape of May 3rd, they saw Ms. Diaz slap [the infant] in the head, stuff a blanket into the baby's mouth as she screamed out, and twist her leg." According to the State:

The surveillance camera confirmed [the parents'] fears on May 2, 1996, the first day it was in operation. [The infant] had trouble napping. At about 4 p.m., defendant told the baby to "[g]ive it up." She hit the baby three times on the head with the heel of her left palm. She stuffed a blanket into [the infant's] mouth and left it there for about 40 seconds. She yelled at [the infant]:

Stop f[---]ing pissing and moaning. Stop it. I'll give you something to f[---]ing scream about, bitch.

She grabbed [the infant], twisted her right knee and said, "Why don't you stay sleeping?"

The videotape also captured defendant's portion of her telephone conversations on a cordless phone, parts of which could be heard while the surveillance was otherwise focused on the family room.

III.

Defendant contends that the videotape must be suppressed because the recording was made in violation of the New Jersey Wiretapping and Electronic Surveillance Control Act.

N.J.S.A. 2A:156A-3 provides, in relevant part, that:

Except as otherwise specifically provided in this act, any person who:

a. Purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; or

b. Purposely discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or c. Purposely uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication;

shall be guilty of a crime of the third degree....

N.J.S.A. 2A:156A-2 provides relevant definitions:

As used in this act:

a. "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception ... "Wire communication" includes any electronic storage of such communication, and the radio portion of a cordless telephone communication ...;

b. "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but does not include any electronic communication;

c. "Intercept" means 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;

d. "Electronic, mechanic or other device" means any device or apparatus, including an induction coil, that can be used to intercept a wire, electronic or oral communication other than ...

....

m. "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system that affects interstate, intrastate ... commerce, but does not include....

....

t. "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception....

New Jersey's Wiretap Act, enacted in 1969, L. 1968, c. 409, and subsequently amended, was "modeled" after Title III of the Federal Omnibus Crime Control Act and Safe Streets Act ("Title III"), 18 U.S.C. § 2510 to § 2520 which was enacted in 1968, P.L. 90-351, Title III, § 802, 82 Stat. 212. See In re Wire Communication, 76 N.J. 255, 262, 386 A.2d 1295 (1978); State v. Fornino, 223 N.J.Super. 531, 543-44, 539 A.2d 301 (App.Div.), certif. denied, 111 N.J. 570, 546 A.2d 499, cert. denied, 488 U.S. 859, 109 S.Ct 152, 102 L.Ed.2d 123 (1988). The federal Act has also been revised and is now referred to in the cases as "Title I" and "Title III." ²

The New Jersey Act is more restrictive than the federal act in some respects. See State v. Catania, 85 N.J. 418, 436-39, 427 A.2d 537 (1981) (New Jersey's "minimization provision" was intended by the Legislature to lay down stricter minimization guidelines than did Congress with respect to the federal act). However, when sections of the federal and state acts are substantially similar in language, it is appropriate to conclude that our Legislature's "intent in enacting the sections of the Wiretapping and Electronic Surveillance Act ... was simply to follow the federal act." Fornino, supra, 223 N.J.Super. at 544, 539 A.2d 301; see also State v. Sanchez, 149 N.J.Super. 381, 396-97, 373 A.2d 1028 (Law Div.1977).

The provisions of N.J.S.A. 2A:156A-2 and -3 with which we deal are substantially similar to their federal counterparts, 18 U.S.C. §§ 2510 and 2511 respectively. In fact, defendant points to no significant difference in the wording of the statutes. We therefore look to interpretation of the federal wiretap act for guidance in determining whether a video surveillance is covered under our law. And on that question the federal cases appear unanimous that videotaping is not subject to the Act. ³

In upholding warrants authorizing "television surveillance" on private premises, the Seventh Circuit has said: [T]he soundtrack of a videotape, no less than a free-standing tape recording, is within the scope of Title III....

But we are unwilling to go further and hold that warrants for television surveillance are subject to Title III, as warrants for bugging and wiretapping are.... Of course...