SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6400-96T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SIOBHAN DIAZ,
Defendant-Appellant.
_________________________________________________________________
Argued January 13, 1998 - Decided February 27, 1998
Before Judges Stern, Kleiner and Kimmelman.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County.
Gerard E. Hanlon argued the cause for appellant
(Mr. Hanlon, on the brief).
Joseph Connor, Jr., Assistant Morris County
Prosecutor, argued the cause for respondent
(John B. Dangler, Morris County Prosecutor,
attorney; Mr. Connor, Jr., on the brief).
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 (App. Div.
1988).
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.See footnote 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.
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.
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 (1978); State v. Fornino,
223 N.J. Super. 531, 543-44 (App. Div.), certif. denied,
111 N.J. 570, 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."See footnote 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
(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; see also State v.
Sanchez,
149 N.J. Super. 381, 396-97 (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.See footnote 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 it is anomalous to have detailed
statutory regulation of bugging and
wiretapping but not of television
surveillance, in Title III, and detailed
statutory regulation of television
surveillance of foreign agents but not of
domestic criminal suspects, in the Foreign
Intelligence Surveillance Act; and we would
think it a very good thing if Congress
responded to the issues discussed in this
opinion by amending Title III to bring
television surveillance within its scope.
But judges are not authorized to amend
statutes even to bring them up to date. ...
When Congress has indicated the domain of a
statute as clearly as it did when it enacted
Title III, we cannot apply the statute
outside its domain merely because we are
confident that if Congress had known then
what we know now it would have used more
general language. Congress said in language
that could not be clearer that Title III is
about the interception of wire and oral
communications and that interception means
aural acquisition. There is no way in which
these words can be read to include silent
television surveillance; and the legislative
history ... indicates that the exclusion from
the scope of the statute of other methods of
surveillance besides those defined in the
statute was deliberate.
[United States v. Torres,
751 F.2d 875, 885-86 (7th Cir. 1984) (citations omitted)].See footnote 4
More recently the Eighth Circuit upheld the video
surveillance of an apartment pursuant to a warrant and concluded
that:
Nothing in Title I indicates an intent to ban
all types of surveillance not specifically
regulated therein. ... Further, again we find
that every circuit to have addressed this
issue has concluded that Title I and [the
Foreign Intelligence Surveillance Act]
neither regulate nor prohibit domestic silent
video surveillance ... [citing United States
v. Koyomejian,
970 F.2d 536, 538-41 (9th
Cir.) (en banc), cert. denied,
506 U.S. 1005
113 S. Ct. 617,
121 L. Ed.2d 550 (1992);
United States v. Mesa-Rincon,
911 F.2d 1433,
1437-38 (10th Cir. 1990); United States v.
Biasucci,
786 F.2d 504, 508 (2d Cir.), cert.
denied,
479 U.S. 827,
107 S. Ct. 104,
93 L.
Ed.2d 54 (1986); United States v. Torres, 751
F.
2d at 880-82.]
[United States v. Falls,
34 F.3d 674, 679
(8th Cir. 1994).]
See also United States v. Williams,
124 F.3d 411, 417-18 (3d Cir.
1997), cert. denied, U.S. ,
118 S. Ct. 698, L. Ed.2d
(1998); United States v. Andonian,
735 F. Supp. 1469, 1472 (C.D.
Cal. 1990) (noting legislative history to 1986 amendment to
federal act which suggests that statute would apply to audio, but
not video, portion of a surveillance), aff'd and remanded,
29 F.3d 634 (9th Cir. 1994), cert. denied, sub. nom. Andonian v.
United States,
513 U.S. 1128,
115 S. Ct. 938,
130 L. Ed.2d 883
(1995).See footnote 5
Given the similar language of our statute and the
legislative intent in using such language in our Wiretap Act, see
State v. Fornino, supra, 223 N.J. Super. at 543-44, we follow the
federal lead and conclude that our Act was not intended to apply
to a recorded silent video surveillance or the video portion of a
videotape which includes a sound component.
We need not explore whether the video portion of a tape containing an illegal oral surveillance is severable, and therefore admissible, because we agree with the trial judge that the audio portion of the defendant's statements to the infant is also admissible in this case. For the same reason, we do not have to explore whether N.J.S.A. 2A:156A-2b requires a "reasonable" expectation of privacy to be an "oral communication" within the meaning of the Act or, if it does, the impact of constitutional case law on that subject with respect to interpretation of our state statutory provision. See, e.g., State v. Tirelli, 208 N.J. Super. 628, 637-38 (App. Div. 1986); PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 819 (D.N.J. 1993).See footnote 6 Moreover, as the State has expressly
indicated that it will not offer into evidence the audio portion
of defendant's telephone conversations included on the recording,
we see no reason to consider its admissibility under the Act.
Even assuming its inadmissibility, we find no basis to prevent
the admission of otherwise lawful recordings contemporaneously
made as part of the same videotape by private parties in their
own home. Cf. State v. Worthy,
141 N.J. 368, 380-86 (1995)
(strictly applying the exclusionary remedy of the Wiretap Act and
holding that where prosecutor's investigator failed to obtain
prosecutor's approval for wiretap before directing interception,
the suppression of subsequent authorized recording was required).
See also State v. Dye,
60 N.J. 518, 535-42 (1972), modified,
State v. Catania,
85 N.J. 418 (1981) (regarding minimization).
We hold that the defendant's statements to, or directed at, the baby are admissible (for the fact that they were said as part of the res gestae) under N.J.S.A. 2A:156A-4. That section, in relevant part, provides:
It shall not be unlawful under this act for:
d. A person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted or used for the purpose of
committing any criminal or tortious act in
violation of the Constitution or laws of the
United States or of this State or for the
purpose of committing any other injurious
act. The fact that such person is the
subscriber to a particular telephone does not
constitute consent effective to authorize
interception of communications among parties
not including such person on that
telephone.See footnote 7
[(emphasis added).]
Because
18 U.S.C. §2511(2)(d) is virtually identical to the
relevant portion of N.J.S.A. 2A:156A-4, we adopt the federal
interpretation of the similar federal provision.See footnote 8
In Thompson v. Dulaney,
838 F. Supp. 1535 (D. Utah 1993), a
divorced husband sued his ex-wife, her parents and her attorneys
and experts for violations of the federal wiretap law when his
telephone conversations with his three and five-year old children
were recorded for purposes of custody proceedings. The ex-wife
raised the defense of vicarious consent, and the court was
concerned with the recording of conversations involving children
who "clearly lacked legal capacity to consent." Id. at 1543.
Nevertheless, the court held that vicarious consent provided an
exception to "Title III liability," ibid., and that under
18 U.S.C. 2511(2)(d) a parent or guardian could authorize the
recordation of his or her minor child's conversations. Id. at
1544. The court stated:
[A]s long as the guardian has a good faith
basis that is objectively reasonable for
believing that it is necessary to consent on
behalf of her minor children to the taping of
the phone conversations, vicarious consent
will be permissible in order for the guardian
to fulfill her statutory mandate to act in
the best interests of the children.
[Id. at 1544.]
The court "emphasize[d]," however, that while it was not
announcing "sweeping precedent regarding vicarious consent," the
fact that the case involved "two minor children whose
relationship with their mother/guardian was allegedly being
undermined by their father" led to the conclusion that "vicarious
consent is permissible" under Title III. Id. at 1544 n.8.
Recently, in Pollock v. Pollock,
975 F. Supp. 974 (W.D. Ky.
1997), a federal district court granted summary judgment to
plaintiff's former wife who was sued for violating Title III as a
result of her recording conversations with the parties' daughter.
The court reasoned that defendant's undisputed "affidavit clearly
supports her claim that she acted to protect the welfare of her
children in taping the conversations ...." Id. at 979. In so
holding, the court was
mindful of the increasingly-difficult
business of child-rearing in modern America,
and believe[s] that societal realities weigh
into the calculus of "reasonableness" and
"good faith." While we do not wish to be
cited for the proposition that children do
not share privacy rights such as those
granted by Title III, we are confident that
our holding today gives parents a wide berth
to act for the good of their children and
empowers them accordingly.
[Id. at 978.]
See also Silas v. Silas,
680 So.2d 368, 371 (Ala. Civ. App. 1996)
(holding that a parent may give vicarious consent on behalf of a
minor child to the taping of telephone conversations where that
parent has "a good faith basis that is objectively reasonable for
believing that the minor child is being abused, threatened, or
intimidated by the [other parent]"); cf. West Virginia Dep't of
Health and Human Resources v. David L.,
453 S.E.2d 646, 654 (W.
Va. 1994), where the court held that a father had "no right on
behalf of his ... children to give consent under [West Virginia's
Wiretap Act statute] to have the children's conversations with
the other parent recorded while the children are in the other
parent's house." There the mother had been "awarded temporary
custody ... during the divorce proceedings," and the paternal
grandmother had no authority to place and retrieve the voice-activated recorder in the children's bedroom while babysitting at
the mother's home. Therefore, the tapes were inadmissible.
In this case, parents of a nine-month old daughter hired
defendant to work in their home as a daytime nanny to care for
the child. The parents became concerned about how defendant was
treating their daughter and physical evidence of bruises
supported their concern. We hold that N.J.S.A. 2A:156A-4d
incorporates the theory of vicarious consent and that, under
these circumstances, the audio portions of the tape recording
involving statements to the child and the child's verbal reaction
(as well as the video portion of the tape) are admissible.
We affirm the order under review and remand for trial.
Footnote: 1Neither the federal nor the state constitutions are implicated here because the alleged unlawful conduct was performed by private individuals and not by the government or its agents. See, e.g., United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed.2d 85, 94 (1984). Footnote: 2 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No.90-351, 82 Stat. 212, was amended and retitled by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1851. Footnote: 3The trial judge in this case correctly noted that United States v. Haimowitz, 725 F.2d 1561, 1581 (11th Cir.), cert. denied, 469 U.S. 1072, 105 S. Ct. 563, 83 L. Ed.2d 504 (1984) "assumed that visual and aural recordings made of meetings and telephone conversations were electronic surveillance within the meaning of the statute and thus decided the admissibility upon a consent exception" in affirming convictions. The trial judge thus believed that when a videotape included an audio component, the Act applied. Footnote: 4The videotaped evidence in Torres "had no sound track; but at the same time that the FBI was televising the interior of the ... houses it was also recording the sounds on different equipment." Id. at 876. The government obtained a warrant authorizing "surreptitious entries into the apartment to install electronic `bugs' and television cameras in every room." Id. at 877. Footnote: 5We cite these cases referring to the federal Wiretap Act only for purposes of deciding whether video recordings fall within our similarly worded statute. We do not intend to address if and when warrants may be issued by judges to law enforcement officers authorizing a video surveillance of private premises or
the remedies, including suppression, for an unauthorized entry to set up a videotape surveillance. Nor do we suggest that video surveillance is per se lawful merely because the Wiretap Act does not apply to the video portion of the recording. As we have noted, no constitutional issue is involved in this case and we consider only the issues raised under the New Jersey Wiretap Act. Footnote: 6We note that the "reasonable" expectations for a baby sitter or housekeeper would depend upon the totality of
circumstances including the nature and hours of the employment and privacy afforded at the workplace. See, e.g., State v. Brown, 282 N.J. Super. 538, 546-47 (App. Div.), certif. denied, 143 N.J. 322 (1995). Footnote: 7The last sentence of N.J.S.A. 2A:156A-4d is not embodied in the federal act. However, this case does not involve the endeavor to introduce telephone conversations and, thus, we need not examine the significance of the sentence. As we have noted, however, the videotape in question here includes the external recording of defendant's portion of telephone conversations which the prosecutor will not endeavor to introduce in the State's case because of its lack of relevance. Footnote: 8Defendant contends that State v. Lane, 279 N.J. Super. 209, 217-20 (App. Div.), certif. denied, 141 N.J. 94 (1995), and Scott v. Scott, 277 N.J. Super. 601, 609-10 (Ch. Div. 1994), stand for the proposition that New Jersey courts have refused to apply the "consent exception" where the taped conversations involved a family member who had no knowledge of the intercept. We agree with the State that these cases are distinguishable because they consider unlawful (and inadmissible) the non-consensual recording of conversations intercepted by non-parties between their spouses and third persons. Here, both parents consented to the recording of conduct in their home and could do so on behalf of one of the parties to the communication.