Power Grab: Wiretaps can cross New Jersey lines, state Supreme Court rules

03/19/2014

AMY NEWMAN / STAFF PHOTOGRAPHER

Edward Ates in court in December 2009.

New Jersey police are allowed to listen to a suspect’s phone call no matter where the person is making that call, the state Supreme Court ruled Tuesday in a case that upheld the murder conviction of a Florida man who killed a Ramsey resident.

The case itself drew national attention because the defense lawyer claimed at the trial that his client was literally too fat to have committed the murder.

But during the appeals process, the defense challenged the state law that allows police surveillance of phone calls.

On Tuesday, a unanimous Supreme Court rejected the defense argument that New Jersey police would have needed a warrant from either a judge in Florida, where the defendant was making the call, or Louisiana, where his mother lived when he spoke to her about the murder in Bergen County.

“Because of the inherent mobility of cellphones, it would be impractical, if not impossible in some instances, for law enforcement to intercept cellphone conversations if agents could only rely on orders issued in the state where a call was placed or received,” Chief Justice Stuart Rabner wrote.

Tuesday’s opinion cited federal decisions that have “consistently” allowed states to wiretap outside their borders as well as other state courts, such as Maryland, that have sanctioned the practice.

The defense lawyer in the case called the ruling an affront to privacy rights.

“There is no protection for any phone call anywhere,” said Walter Lesnevich.

“Not only can NSA spies and technology geniuses spy on anyone, anywhere, but [an investigator] in the Prosecutor’s Office can spy on anyone.”

In 2009, a jury convicted Edward Ates of Florida in the murder of his former son-in-law, Paul Duncsak, a pharmaceutical expert who lived in Ramsey. Bergen County prosecutors said Ates shot Duncsak at his home, then drove for 21 hours straight to Louisiana, where his mother lived.

Police in New Jersey intercepted phone calls between Ates in Florida and his mother in Louisiana.

Ates was sentenced to serve almost 70 years before he becoming eligible for parole — a time frame that means he will spend the rest of his life in prison.

The murder gained national attention because the defense was built on the argument that Ates – who weighed almost 300 pounds, suffered from sleep apnea and was in his 60s — could not have committed the murder because he was too obese.

Bergen County Prosecutor John Molinelli said the case stands out in his mind not for the “too obese to kill” defense, but the enterprising work of his computer crimes unit.

“I always looked upon this case as the first significant case where our computer crimes unit was instrumental in bringing about the arrest,” said Molinelli, referring to information that showed Ates had researched how to commit the perfect murder.

The computer evidence, the questions about his alibi and the wiretaps in question helped prosecutors convict in a case that lacked any physical evidence.

The jury agreed with prosecutors who said Ates shot Duncsak with a silenced .22-caliber handgun. Duncsak was killed in 2006 when he entered his Ramsey home while on the phone with his fiancée, Lori Adamo.

Duncsak and his ex-wife, Stacey Walker, were going through a child custody battle at the time Duncsak was killed.

Ates’ defense also claimed that he was at his mother’s house when the murder occurred. His family initially backed him up, but eventually Ates’ sister said she had been asked by Ates to lie.

One of the wiretapped phone calls in question helped the prosecution place doubt on this claim, Ates’ lawyer said. That call had Ates saying to his sister “tell them I got there Tuesday,” said Lesnevich. The sister, who Lesnevich said was easily confused, mixed up the dates and mistakenly took this as a request to lie.

At his sentencing, Ates maintained his innocence. “The jury got it wrong,” he told a judge. His time behind bars has not changed his mind, his lawyer said.

In 2012, an appeals court rejected the defense’s privacy claim.

The lower court said it was constitutional to intercept calls that occurred solely in other states if the police listened to the calls in New Jersey.

The Supreme Court agreed Tuesday, writing that as long as police listened to the calls in New Jersey for an in-state crime, the actions were constitutional.



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