               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NOS. A-2393-17T3
                                             A-2478-17T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,            APPROVED FOR PUBLICATION

                                             January 27, 2020
v.
                                          APPELLATE DIVISION

ARTHUR R. BURNS, a/k/a
RONDALE BURNS,

     Defendant-Appellant.


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

VAUGHN WILLIAMS,

     Defendant-Appellant.


          Argued January 7, 2020 – Decided January 27, 2020

          Before Judges Fisher, Accurso and Rose.

          On appeal from the Superior Court of New Jersey, Law
          Division, Burlington County, Indictment No. 16-05-
          0528.
            Michael E. Riley argued the cause for appellant Arthur
            R. Burns (Law Offices of Riley & Riley, attorneys;
            Michael E. Riley, on the brief).

            Alyssa A. Aiello, Assistant Deputy Public Defender,
            argued the cause for appellant Vaughn Williams
            (Joseph E. Krakora, Public Defender, attorney; Alyssa
            A. Aiello, of counsel and on the brief).

            Regina M. Oberholzer, Deputy Attorney General,
            argued the cause for respondent (Gurbir S. Grewal,
            Attorney General, attorney; Regina M. Oberholzer, of
            counsel and on the briefs).

      The opinion of the court was delivered by

ROSE, J.A.D.

      These appeals, calendared back-to-back and consolidated for purposes of

our opinion, present an issue of first impression, requiring us to decide whether

the State's utilization of federally-contracted civilian monitors, who were sworn

as "Special County Investigators," violated the New Jersey Wiretapping and

Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1

to -37. Because we conclude the monitors were cloaked with the investigative

responsibility of law enforcement officers when they intercepted the

communications at issue, we affirm.




                                                                         A-2393-17T3
                                       2
                                         I.

         The genesis of these appeals is a nearly eighteen-month drug-trafficking

investigation conducted jointly by the Burlington County Prosecutor's Office's

(BCPO) Gang, Gun, and Narcotics Task Force and the Drug Enforcement

Agency (DEA). Several individuals were targeted for their involvement in the

distribution of large quantities of cocaine in Burlington County and surrounding

areas.

         As part of the ongoing investigation, the lead BCPO Task Force detective

received judicial authorization to intercept communications over four cellular

telephone facilities subscribed to defendant Arthur R. Burns and another

individual.1 During the pendency of the wiretap investigation, police intercepted

a number of conversations and text messages, including what they believed were

slang and code words for cocaine and drug transactions.           Some of those




1
   Authorization was also granted for four communications data warrants
pursuant to N.J.S.A. 2A:156A-29. Those warrants are not at issue in these
appeals. The other individual identified in the application is not a party to this
appeal.



                                                                          A-2393-17T3
                                         3
conversations pertained to multiple sales of cocaine from Burns to defendant

Vaughn Williams. 2

       In support of the wiretap application, the affiant submitted a sixty-six-

page affidavit to the designated wiretap judge. 3 The primary issue on appeal

pertains to paragraph ten and its accompanying footnote:

                     The type of communications to be intercepted are
             wire and electronic communications. The interceptions
             will be made by means of electronic equipment
             installed and maintained by members of the DEA
             and/or members of the New Jersey State Police
             Electronic Surveillance Unit, each of whom has
             undergone at least three (3) weeks of specialized
             training in the use of such electronic equipment and the
             techniques required for its proper installation. The
             monitoring of communications intercepted by the
             aforesaid electronic equipment will be done by
             members of or attached to the [BCPO] and [DEA]
             . . . .1 All of the above law enforcement officers have
             been instructed in the procedures required by the ". . .
             Act" for the control of such an installation and the
             preservation of information obtained thereby. . . .
             ____________________________________________
             1
                  These individuals include Special Agents of the
             [DEA] as well as civilian monitors contracted by that
             agency, all of who[m] have been sworn as Special
             County Investigators/Detectives with the [BCPO].


2
   Burns and Williams are two of six defendants who were indicted after the
investigation was completed; none of their co-defendants is a party to this
appeal.
3
    See N.J.S.A. 2A:156A-2(i).
                                                                        A-2393-17T3
                                        4
            [(Emphasis added).]

      As referenced in footnote one of the affidavit, the Burlington County

Prosecutor deputized DEA agents – and civilian personnel contracted by the

DEA – as special county investigators.          Each oath of appointment was

memorialized in a document signed by the monitor and witnessed by the

Prosecutor. The monitors acknowledged their appointments were limited to "the

period encompassing the investigation and prosecution of a case being

prosecuted by the [BCPO] and [DEA] Operation[,]" and they "serve[d] under

the authority and supervision of the Prosecutor of Burlington County, or his

designee." An addendum attached to each oath provides, in pertinent part:

                  I understand that as directed by members of the
            [BCPO], a person sworn as a Special County
            Investigator will assist the [BCPO] or the [DEA] in
            conducting investigations of violations of State Law.
            Unless otherwise authorized by law, a Special County
            Investigator is not authorized to carry firearms or
            exercise the powers and rights of a police officer.
            Furthermore, a Special County Investigator must advise
            the Supervising Assistant Prosecutor in charge of the
            [BCPO Task Force], of any outside employment in
            which he/she is engaged and whether such outside
            employment has been authorized by his/her employer.

      It is undisputed that the BCPO provided to the monitors oral and written

minimization instructions, which each monitor signed. Among other things, the

instructions included the identity of the target facilities, the potential subjects,

                                                                            A-2393-17T3
                                         5
and the specified offenses under investigation. Instructions were also provided

regarding the procedure for minimizing non-pertinent and privileged

communications, as set forth in State v. Catania, 85 N.J. 418, 427-29 (1981), a

copy of which was provided to each monitor. 4 In addition to the presence of a

supervisor at the wire room, the affiant and supervising assistant prosecutor

were made available to the monitors for consultation if any issues arose that

were not included in the minimization lecture or written instructions.

       Burns, joined by Williams and another co-defendant, moved to suppress

the contents of the intercepted communications and the evidence seized as a

result of those communications.5 They challenged the warrant application on


4
   At oral argument before the motion judge, the prosecutor estimated each
monitor was provided with "well over a hundred pages of material" to read:
"And once they are . . . comfortable with . . . the contents of that document," the
monitors acknowledge they have read the materials, "and then they're permitted
into . . . the wire room."
5
    See N.J.S.A. 2A:156A-21, providing, in pertinent part:

                    Any aggrieved person in any trial, hearing, or
              proceeding in or before any court . . . of this State may
              move to suppress the contents of any intercepted wire,
              electronic or oral communication, or evidence derived
              therefrom, on the grounds that:

                    a. The communication was unlawfully
                    intercepted;


                                                                           A-2393-17T3
                                         6
several overlapping grounds. In essence, defendants claimed the use of civilian

monitors invalidated the warrant application and the Prosecutor's appointment

of special county investigators to monitor the intercepted communications

exceeded his powers.      They also challenged the affiant's qualifications in

electronic surveillance. 6 No testimony was presented. After oral argument, the

motion judge reserved decision and later issued a cogent written opinion and

accompanying order denying the motion.

      Pertinent to these appeals, the judge recognized, unlike Title III of the

federal Omnibus Crime and Safe Streets Act (Title III), 18 U.S.C. §§ 2510-2523,

the Wiretap Act does not expressly permit delegation of wire interception to

civilian personnel. But, the judge was persuaded by the absence of any New

Jersey precedent prohibiting the utilization of civilian monitors because, in this




                  b.     The order of         authorization   is
                  insufficient on its face;

                  c. The interception was not made in
                  conformity with the order of authorization
                  or in accordance with the [minimization]
                  requirements of [N.J.S.A.] 2A:156A-12.
6
  Defendants also argued the State's failure to exhaust traditional investigatory
techniques violated the necessity requirement for issuance of the warrants. That
claim is not renewed on appeal.
                                                                          A-2393-17T3
                                        7
case, "[o]nce the oath of office was administered the civilian monitors were law

enforcement officers as required by and defined in the . . . Wiretap Act . . .

[N.J.S.A.] 2A:156A-2(f)." The judge concluded the Prosecutor was empowered

to deputize the civilian monitors as special county investigators under "the

authority and power to appoint personnel necessary to carry out the functions of

the office."

      Burns and Williams thereafter pled guilty to drug distribution pursuant to

separate conditional plea agreements with the State. 7 These appeals followed.8



7
  Burns pled guilty to two counts of first-degree distribution of cocaine, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and second-degree distribution of
cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). He was sentenced
to an aggregate fourteen-year prison term, with a five-year period of parole
ineligibility. The State dismissed the remaining eleven charges against Burns.
Williams pled guilty to first-degree distribution of cocaine, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(1). He was sentenced to an eleven-year term
of imprisonment, with a four-year period of parole ineligibility. The State
dismissed the remaining count of the indictment against Williams.
8
   The parties did not request oral argument. After examining the briefs and
appellate record, we determined oral argument would assist our determination
of this appeal, and notified the parties to be prepared to discuss, among oth er
things: "the Prosecutor's ability, or lack thereof, to provide a civilian with
limited law enforcement powers by appointing the civilian as a 'special
investigator'"; and "whether that appointment process is an ongoing practice,
and if so whether the practice is state-wide and how long the practice has been
occurring[.]"



                                                                           A-2393-17T3
                                        8
      On appeal, defendants renew their argument that the State's utilization of

civilian monitors violated the heightened privacy protections of the Act's

minimization provision. They contend, unlike its federal counterpart, the Act

does not expressly authorize civilian contractors to monitor intercepted

communications, and the Prosecutor lacked authorization to appoint civilian

monitors as special county investigators. Burns contends that impropriety was

compounded by the affiant's failure to disclose the identity of the monitors, their

qualifications, and training; and the affiant was not qualified to apply for the

warrants because he lacked formal wiretap training.

      The State counters defendants have neither identified any conversations

whatsoever that were improperly minimized or unreasonably intercepted, nor

argued there was insufficient probable cause to support the issuance of the

wiretap warrants. The State maintains the Prosecutor has inherent power to

appoint special county investigators as part of his responsibility to carry out the


      During oral argument before us, the State disclosed the appointment
process has been ongoing "for years" in the Office of the Attorney General and
one-third of the State's counties. The utilization of "special investigators"
apparently is limited to joint investigations with federal agencies and
interpretation of foreign-language communications. We were also advised there
is no Attorney General directive or any written policy governing the practice.
The present case marked the first wiretap investigation in which special county
investigators were utilized by the BCPO.


                                                                           A-2393-17T3
                                        9
duties of his office and the enforcement of criminal matters, and the appointment

here brought the civilian monitors "under the umbrella of the agency."

                                       II.

      Ordinarily, our review of a trial court's decision on a motion to suppress

is limited, State v. Robinson, 200 N.J. 1, 15 (2009), because we defer to the

judge's factual findings, State v. Gonzales, 227 N.J. 77, 101 (2016). Where, as

here, the facts underlying a suppression motion are uncontested, our review is

de novo. State v. Boone, 232 N.J. 417, 426 (2017). That standard comports

with our review of statutory interpretation: unless we are persuaded by the

motion judge's analysis, we need not defer to the judge's decision. See State v.

Scriven, 226 N.J. 20, 33 (2016). Essentially, we owe no deference to the judge's

legal conclusions or interpretation of the legal consequences that flow from

established facts. State v. Goodwin, 224 N.J. 102, 110 (2016).

      Our Supreme Court has chronicled the history and requirements of the

Wiretap Act and Title III, after which the Act was modeled. See, e.g., State v.

Feliciano, 224 N.J. 351, 367-68 (2016); State v. Ates, 217 N.J. 253, 266 (2014);

Catania, 85 N.J. at 427-29. We need not reiterate those details for purposes of

our decision; we recognize the Act is "more restrictive than the federal act in

some respects." State v. Diaz, 308 N.J. Super. 504, 510 (App. Div. 1998)


                                                                         A-2393-17T3
                                      10
(citation omitted); see also Feliciano, 224 N.J. at 370; Catania, 85 N.J. at 436-

38.   And, "[t]he Wiretap Act must be strictly construed to safeguard an

individual's right to privacy." Ates, 217 N.J. at 268.

      Relevant here, in Catania, our Supreme Court compared the Wiretap Act's

minimization provision with that of Title III and determined "the Legislature

intended to lay down stricter minimization guidelines than did Congress."

Catania, 85 N.J. at 437. The Court elaborated:

            While the federal act only directs monitors to
            "minimize" their interception of non-relevant
            communications, . . . our Act directs them to "minimize
            or eliminate" the interception of such communications
            (emphasis added). The addition of the language "or
            eliminate" is evidence of a legislative intent to make
            New Jersey's minimization provision even more
            stringent than its federal counterpart.

            [Ibid.]

Importantly, those guidelines addressed the interception of non-pertinent

conversations. The Court sought to protect the "greater threat to individual

privacy than [that of] traditional searches and seizures" in light of the State's

"heavy emphasis on wiretapping as a tool of law enforcement." Id. at 440.

      Eighteen years after its enactment in 1968, Title III's minimization section

was amended to permit monitoring of intercepted communications by civilian

personnel. See 18 U.S.C. § 2518(5) (providing "[a]n interception under [Title

                                                                          A-2393-17T3
                                       11
III] may be conducted in whole or in part by Government personnel, or by an

individual operating under a contract with the Government, acting under the

supervision of an investigative or law enforcement officer authorized to conduct

the interception"). The Federal Bureau of Investigation sought the amendment

"to free field agents from the relatively routine activity of monitoring

interceptions so that they c[ould] engage in other law enforcement activities."

S. Rep. No. 99-541, at 31 (1986).

        The Act's minimization section is contained in N.J.S.A. 2A:156A-12.

Although that section is similar to Title III's minimization section, absent is any

provision permitting the utilization of civilian employees or contract ors to

monitor interceptions.      We note the Legislature thrice amended the Act's

minimization section since Title III's minimization section was amended, 9 but

none of those amendments added language expressly authorizing civilian

personnel to monitor wiretap communications – or expressly prohibiting their

utilization. While that silence could cause us to "turn to extrinsic sources, such

as legislative history," Maeker v. Ross, 219 N.J. 565, 575 (2014), to give effect

to the Legislature's intent, see State v. Morrison, 227 N.J. 295, 308 (2016), that

analysis is rendered unnecessary here, where the civilian monitors were


9
    See L. 1989, c. 85, § 4; L. 1993, c. 29, § 11; L. 1999, c. 151, § 5.
                                                                           A-2393-17T3
                                         12
deputized as investigators and, as such, they were no longer acting in a civilian

capacity.

      Instead, our focal point is the language contained in the Act pertaining to

those who may intercept the communications. We start with the requirements

for the wiretap application, which "shall state . . . [t]he identity and

qualifications of the investigative or law enforcement officers or agency for

whom the authority to intercept a wire, electronic or oral communication is

sought . . . ."    N.J.S.A. 2A:156A-9(b) (emphasis added).         Similarly, in

considering the application, the wiretap judge must determine whether "there is

or was probable cause for the belief that . . . [t]he investigative or law

enforcement officers or agency to be authorized to intercept the wire, electronic

or oral communication are qualified by training and experience to execute the

interception sought . . . ." N.J.S.A. 2A:156A-10(e) (emphasis added). Further,

the order authorizing interception "shall state . . . [t]he identity of the

investigative or law enforcement officers or agency to whom the authority to

intercept a wire, electronic or oral communication is given . . . ." N.J.S.A.

2A:156A-12(e) (emphasis added). Finally, the Act defines an "'[i]nvestigative

or law enforcement officer' [as] any officer of the State of New Jersey . . . who

is empowered by law to conduct investigations of, or to make arrests for, any


                                                                         A-2393-17T3
                                      13
offense enumerated in [the Act] . . . ."      N.J.S.A. 2A:156A-2(f) (emphasis

added).10

      Pursuant to the plain language of the emphasized provisions, see State v.

Grate, 220 N.J. 317, 330 (2015), the Act undoubtedly requires interception by

"investigative or law enforcement officers or agency." Because the civilian

monitors were deputized as special county investigators, for purposes of the

wiretap application at issue, they were not acting as "civilians" when the

interceptions were made. Upon taking their oath, they became "investigative or

law enforcement officers[,]" of the BCPO agency duly authorized "to conduct

investigations"   by    monitoring   the    intercepted   communications      here.

Accordingly, when the interceptions were made, the monitors fit squarely within

the Act's definition.




10
   The State also cites the most recent amendment to the Act, which defines a
"[m]ember of a New Jersey law enforcement agency" as "any sworn or civilian
employee of a law enforcement agency operating under the authority of the laws
of the State of New Jersey[.]" N.J.S.A. 2A:156A-35(a) (Section 35(a)).
Arguably, that definition applies broadly to the Act, but the specific term is not
referenced anywhere else in the Act. Also, the other definitions contained in
Section 35(a) are only referenced in the three newly-enacted sections, which all
pertain to counter-terrorism investigations. N.J.S.A. 2A:156A-35 to -37. In any
event, we are not relying upon the definitions contained in Section 3 5(a) to
support our decision.
                                                                           A-2393-17T3
                                       14
        In reaching that conclusion, we note a county prosecutor's power to

appoint investigators is statutory. See N.J.S.A. 2A:157-10. Further, as the

motion judge correctly observed, "the County Prosecutor has the authority and

power to appoint personnel necessary to carry out the functions of the office."

That authority is deeply rooted in our jurisprudence. See Cetrulo v. Byrne, 31

N.J. 320, 325-28 (1960). Writing for the unanimous Court in Cetrulo, Justice

Jacobs cited Chief Justice Vanderbilt's decision in State v. Winne, 12 N.J. 152,

167 (1953), which underscores the Prosecutor's authority and bears repeating

here:

             Chief Justice Vanderbilt referred to the prosecutor's
             dominant position and primary responsibility for the
             enforcement of the criminal laws in his county and he
             cited various legislative enactments which have from
             time to time given him not only express powers to
             appoint designated assistants but also implied powers
             to appoint additional personnel when needed for the
             proper discharge of his duties. Under N.J.S.A. 2A:158-
             5 (formerly R.S. 2:182-5) the prosecutor is directed to
             "use all reasonable and lawful diligence for the
             detection, arrest, indictment and conviction of
             offenders against the laws" . . . .

             [Cetrulo, 31 N.J. at 325.]

        With those basic tenets in mind, we reject defendants' argument that the

Prosecutor was not empowered to create the position of "Special County

Investigator" for purposes of the wiretap investigation in the present matter.

                                                                        A-2393-17T3
                                          15
Not surprisingly, defendants cite no authority for their contention. Instead, they

posit that by limiting the investigators' functions, the Prosecutor contravened the

broad-reaching powers of his appointment statute. Compare N.J.S.A. 2A:157-

10 (emphasis added) (providing "[p]ersons so appointed [as county

investigators] shall possess all the powers and rights and be subject to all the

obligations of police officers, constables and special deputy sheriffs, in criminal

matters") with the oath administered by the Prosecutor (emphasis added)

(providing "[u]nless otherwise authorized by law, a Special County Investigator

is not authorized to carry firearms or exercise the powers and rights of a police

officer").

      But, as stated above, the Act's definition of an "[i]nvestigative or law

enforcement officer" includes "any officer . . . who is empowered by law to

conduct investigations . . . or to make arrests . . . ." N.J.S.A. 2A:156A-2(f)

(emphasis added). The Legislature specifically used the disjunctive "or" to

define an officer's powers; thus, the Act does not require that an officer possess

both investigative and arrest powers. Accordingly, under the Act, an officer

need not possess "all the powers and rights . . . of police officers" as set forth in

N.J.S.A. 2A:157-10, which pertains to the "appointment, salary, [and] duties" of

"[c]ounty investigators generally." We therefore discern no impropriety in the


                                                                             A-2393-17T3
                                        16
restriction imposed by the Prosecutor, limiting the power of the special county

investigators to this wiretap investigation. Rather, that limitation comports

squarely with the statutory definition of investigative officers under the Act , the

Prosecutor's obligation to comply with the Act's monitoring mandates, and his

power to appoint "additional assisting personnel," Cetrulo, at 31 N.J. at 328, to

discharge his duties and enforce the law.

      In view of our decision, we need not address whether civilian personnel,

who are not deputized as special county investigators or other law enforcement

officers as defined within the Act, are permitted to monitor intercepted

communications. That omission from the minimization section of the Wiretap

Act "is best left for consideration by the Legislative and Executive branches of

government." In re Declaratory Judgment Actions, 446 N.J. Super. 259, 286

(App. Div. 2016); see also State v. Saavedra, 433 N.J. Super. 501, 525 (App.

Div. 2013).

       Revisiting the terms of the Act we emphasized above, we also reject

Burns' argument that the wiretap affidavit improperly omitted the identities and

qualifications of the monitors. Again, the plain language of the Act requires the

affidavit to state the identity and qualifications of the officers or agency seeking

authority for interception, N.J.S.A. 2A:156A-9(b); the order only requires their


                                                                            A-2393-17T3
                                        17
identity, N.J.S.A. 2A:156A-12(e). The Act does not expressly require that the

wiretap application set forth the identity and qualifications of every monitor who

intercepts communications in a wiretap investigation. 11

        Pursuant to those requirements, the affidavit identifies the BCPO as the

agency seeking the warrants and the qualifications of the affiant. The affidavit

also discloses the monitoring would be performed by members of the BCPO,

DEA and civilian monitors, all of whom were sworn as special county

investigators and "instructed in the procedures required by the [Act] for the

control of such an installation and the preservation of information obtained

thereby." The order, in turn, identifies those same agencies and individuals,

noting the monitors were deputized as special county investigators of the BCPO,

all of whom were "qualified by training and experience to execute such

interceptions."

        We discern no impropriety in the procedures employed here, especially

because defendants have not identified any intercepted communications that

were improperly minimized.           See Catania, 88 N.J. at 435 (finding it

"[s]ignificant[]" that "the defendants ha[d] not pointed to a single non -relevant

conversation that was unreasonably intercepted"). Notably, defendants also


11
     The record reflects nearly fifty monitors were utilized in this investigation.
                                                                             A-2393-17T3
                                         18
have not challenged the issuing judge's probable cause determination. We are

therefore satisfied defendants have not demonstrated utilization of civilian

monitors – whom the Prosecutor had deputized as special county investigators

in this investigation – intruded on defendants' privacy interests. Id. at 429.

Instead, tasking those contractors with routine monitoring was a common-sense

approach, enabling police to conduct field investigations as the wiretap

investigation unfolded.

      In reaching our decision, we further reject Burns' argument that the affiant

was not qualified to apply for the wiretap orders. The affiant's qualifications are

fully set forth in paragraph fifteen of the affidavit, which spans three pages.

Among other things, the affiant detailed his familiarity with the procedural

requirements of the Act and his knowledge of wiretap investigations, including

"the manner in which individuals communicate on the telephone for the purpose

of engaging in illegal narcotics activity." Importantly, the affiant disclosed he

had prepared a prior wiretap affidavit and wiretap extensions. We therefore

discern no reason to disturb the wiretap judge's determination. See State v. Dye,

60 N.J. 518, 527 (1972) (deferring to the Law Division's determination as to

whether the detective charged with installing and maintaining the wiretap

warrant, as described in the warrant affidavit, was qualified to do so).


                                                                           A-2393-17T3
                                       19
Affirmed.




                 A-2393-17T3
            20
