State v. Rasheem W. McQueen and Myshira T. Allen-Brewer (084564) (Middlesex County & Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Rasheem W. McQueen (A-11-20) (084564)
Argued March 1, 2021 -- Decided August 10, 2021
ALBIN, J., writing for a unanimous Court.
The Court considers whether the right of privacy, safeguarded by the New Jersey
Constitution, extends to an arrestee’s call on a police line from the stationhouse when
neither party to the call is aware that the police are recording their conversation.
Rasheem McQueen was arrested after driving off when Piscataway police officers
attempted to stop him for traffic violations. At police headquarters, McQueen was
permitted to make a call on a landline in the “report writing room.” No one told him the
call would be recorded -- as were all outgoing calls from headquarters. No sign was
posted warning that all calls were recorded. No one stood over McQueen to listen to the
conversation, and he “mumbled on the phone, hiding what his conversation was.”
Later that day, a detective recovered a gun found outside the home near where
McQueen had been stopped and became “suspicious” about the call McQueen had made
from headquarters. Without securing a warrant or a subpoena, or consent from
McQueen, detectives listened to McQueen’s recorded conversation. The recording
revealed that McQueen called Myshira Allen-Brewer and told her to look for his “blicky”
-- apparently a slang name for a handgun -- near where the gun was found.
McQueen was transferred to the Middlesex County Adult Correction Center
(Correction Center), from where he made further telephone calls to Allen-Brewer on a
clearly designated recorded line. During telephone calls placed from the Correction
Center, an automated message advises the parties that their conversation is being
recorded, and inmates receive written notification of the warning as well. In their
conversations, McQueen again told Allen-Brewer to look for the “blicky.” A recording
of those Correction Center conversations was secured through a grand jury subpoena.
Both McQueen and Allen-Brewer were indicted on multiple counts, and both
moved to suppress their telephone conversations recorded by the Piscataway Police
Department and the Correction Center. The motion judge suppressed the recorded calls
and dismissed the indictment against Allen-Brewer.
1
The Appellate Division reversed the suppression of the Correction Center calls
and reinstated the charges against Allen-Brewer. The panel, however, split on the
legality of the seizure of the police station call, with the majority affirming the
suppression of that call.
The Court granted the State’s motion for leave to appeal from the appellate panel’s
affirmance of the suppression of the police station call, 244 N.J. 244 (2020), but denied
Allen-Brewer’s cross-motion seeking a declaration that the Correction Center calls were
the “fruit” of the unlawfully recorded police station call, 244 N.J. 245 (2020).
HELD: The right of privacy, and particularly privacy in one’s telephone conversations,
is among the most valued of all rights in a civilized society. McQueen’s custodial status
in the stationhouse did not strip him of all constitutional protections. Article I, Paragraph
7 broadly protects the privacy of telephone conversations in many different settings.
McQueen and Allen-Brewer had a reasonable expectation of privacy in their conversation
in the absence of fair notice that their conversation would be monitored or recorded. The
recorded stationhouse telephone conversation was not seized pursuant to a warrant or any
justifiable exigency and therefore must be suppressed.
1. To determine whether Allen-Brewer had a constitutionally protectible privacy interest
in her conversation with McQueen, the Court considers whether Allen-Brewer had a
reasonable expectation of privacy in that call and, if she did, whether the non-consensual
and warrantless recording of and listening to her conversation by law enforcement
officers violated the constitutional right to be free from unreasonable searches and
seizures. Noting the lack of certainty in this area of federal law, the Court turns to the
broader protections afforded under Article I, Paragraph 7 of the State Constitution in
analyzing whether McQueen and Allen-Brewer possessed a reasonable expectation of
privacy in the police station call. (pp. 17-19)
2. The telephone is an essential instrument in carrying on personal affairs, and there is a
general societal assumption that the people and places one calls on a telephone, no less
than the resulting conversations, will be private. The place where such a call is made
does not matter, be it home, office, hotel, or even public phone booth. What a person
seeks to preserve as private, even in an area open to the public, may be constitutionally
protected, and a person does not lose the right to the privacy of a telephone call simply
because he made his calls from a place where he might be seen. (pp. 19-21)
3. A police station’s “report writing room” is not an area open to the public, and
legitimate security concerns must be taken into account in the setting of a stationhouse.
Few would dispute that an arrestee has a lesser expectation of privacy within the confines
of a police station. A police station, however, is not a constitution-free zone. Clearly, an
arrestee cannot make a call from a stationhouse phone line without the authorization of
the police. When permission is given, however, the State does not suggest that the police
2
have a right to record and listen to an arrestee’s stationhouse call to his attorney. And, of
course, the phone lines are not used exclusively by arrestees. No empirical evidence has
been presented to support that there is a general understanding that all outgoing phone
lines from a police station are recorded or that social norms instruct that an expectation of
privacy in a police station call is not one that “society is prepared to recognize as
reasonable.” See State v. Evers, 175 N.J. 355, 369 (2003). (pp. 21-23)
4. Upon review of the cases on which the State relies, the Court finds no support for the
proposition that the general public is aware that a call made by a civilian on an outgoing
line can be recorded without notice, or that a call that cannot be overheard by an officer
through natural means loses a reasonable expectation of privacy because of a non-
consensual recording on a police line. In this case, no police officer heard through the
use of the naked ear either side of the conversation. The surreptitiously recorded
conversation in this case does not fall within the ambit of the so-called “plain hearing”
exception to the warrant requirement. And the holding in State v. Jackson that the
defendant-inmates had no reasonable expectation of privacy in their calls was premised
on two critical factors: the correctional facilities’ legitimate security interests and the
notice given to inmates that their calls might be recorded and monitored. See 460 N.J.
Super. 258, 276 (App. Div. 2019), aff’d, 241 N.J. 547 (2020). (pp. 23-28)
5. The Court concludes that, under Article I, Paragraph 7 of the New Jersey Constitution,
an arrestee has a reasonable expectation of privacy in a call made from a police station in
the absence of notice that the conversation may be monitored or recorded. First, police
monitoring of telephone conversations -- without consent, a warrant, or other appropriate
judicial authorization -- empowers the government to arbitrarily peer into the most
private sanctums of people’s lives in violation of the privacy protections afforded by
Article I, Paragraph 7. Second, the State has provided no factual support and scant
judicial authority for the notion that New Jersey’s residents have a widespread
understanding that all outgoing telephone calls from a police station are recorded. Third,
requiring notice of recording does not undermine and may enhance institutional security
and public safety by deterring the unlawful use of the stationhouse line. Fourth, the right
to notice of monitoring or recording accords with basic notions of fairness and decency.
Fifth, the fruits of an unlawful search cannot provide an after-the-fact justification for the
search. Sixth, McQueen and Allen-Brewer had an expectation of privacy in their
conversation that “society is prepared to recognize as reasonable.” Evers, 175 N.J. at
369. The Court explains that Allen-Brewer’s expectation of privacy is largely derivative
of McQueen’s privacy right. See id. at 370. (pp. 28-32)
6. The Court’s holding that McQueen and Allen-Brewer enjoyed a reasonable
expectation of privacy in the police station call means that the Piscataway police had to
comply with the warrant requirement of Article I, Paragraph 7, in the absence of one of
the specifically established and well-delineated exceptions to the warrant requirement,
such as consent or exigent circumstances. Here, the Piscataway police did not secure
3
either a warrant for the seizure of the recorded conversation or McQueen’s or Allen-
Brewer’s consent to monitor or record their call. Nor has the State attempted to justify
the seizure based on exigent circumstances. Therefore, the McQueen/Allen-Brewer
stationhouse conversation must be suppressed. (pp. 32-33)
7. Police departments that record or monitor outgoing calls of arrestees must give them
reasonable notice of that practice. Reasonable notice may be satisfied in different ways.
For example, the police could have an arrestee read and sign a form that explains the
practice or could post a prominent sign by the telephone. Any forms or signs employed
to provide notice must take account of language differences, and attorney conversations
may not be monitored. (p. 33)
AFFIRMED and REMANDED to the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion.
4
SUPREME COURT OF NEW JERSEY
A-11 September Term 2020
084564
State of New Jersey,
Plaintiff-Appellant,
v.
Rasheem W. McQueen,
Defendant,
and
Myshira T. Allen-Brewer,
Defendant-Respondent.
On appeal from the Superior Court,
Appellate Division .
Argued Decided
March 1, 2021 August 10, 2021
David M. Liston, Assistant Prosecutor, argued the cause
for appellant (Yolanda Ciccone, Middlesex County
Prosecutor, attorney; David M. Liston, of counsel and on
the briefs).
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).
1
Sarah C. Hunt, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Andrew J. Bruck, Acting Attorney General, attorney;
Sarah C. Hunt, of counsel and on the brief).
Tess Borden argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Tess Borden, Alexander Shalom, and Jeanne
LoCicero, on the brief).
Denise Alvarez argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Pashman Stein Walder Hayden, attorneys; Denise
Alvarez, on the brief).
Jonathan Romberg argued the cause for amicus curiae
Seton Hall University School of Law Center for Social
Justice (Seton Hall University School of Law Center for
Social Justice, attorneys; Jonathan Romberg, of counsel
and on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
The right of privacy -- the right to be free from government officials
arbitrarily prying into our personal conversations -- is one of the preeminent
rights in our constitutional hierarchy. Article I, Paragraph 7 of the New Jersey
Constitution provides heightened protection to telephone calls and prohibits
government eavesdropping, absent a warrant or an exception to the warrant
requirement. This case tests whether the right of privacy, safeguarded by our
State Constitution, extends to an arrestee’s call on a police line from the
2
stationhouse when neither party to the call is aware that the police are
recording their conversation.
The police arrested Rasheem McQueen for allegedly committing certain
offenses and brought him to the police station, where he gave a statement to an
investigating detective. The police permitted McQueen to make a telephone
call from one of the stationhouse’s landlines but did not tell him his
conversation would be recorded or accessible to law enforcement without his
consent or a warrant. McQueen called and spoke with defendant Myshira
Allen-Brewer. The next day, a detective retrieved the recording and listened to
their private conversation. Based, in part, on the contents of that conversation,
Allen-Brewer was charged with various crimes.
The trial court suppressed the McQueen/Allen-Brewer telephone
conversation, finding that the warrantless retrieval and use of that recording
violated Allen-Brewer’s statutory and constitutional privacy rights. In a split
decision, the Appellate Division panel upheld the suppression of the telephone
conversation on Fourth Amendment grounds only, concluding that McQueen
and Allen-Brewer enjoyed a reasonable expectation of privacy. 1
1
Only Allen-Brewer’s appeal is before this Court.
3
We affirm. The right of privacy, and particularly privacy in one’s
telephone conversations, is among the most valued of all rights in a civilized
society. See Doe v. Poritz, 142 N.J. 1, 100 (1995); see also Olmstead v.
United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
McQueen’s custodial status in the stationhouse did not strip him of all
constitutional protections. The police provided McQueen and Allen-Brewer
with no notice that their conversation would be recorded or monitored. Article
I, Paragraph 7, which prohibits unreasonable searches and seizures, broadly
protects the privacy of telephone conversations in many different settings. We
hold that McQueen and Allen-Brewer had a reasonable expectation of privacy
in their conversation in the absence of fair notice that their conversation would
be monitored or recorded. The recorded stationhouse telephone conversation
was not seized pursuant to a warrant or any justifiable exigency and therefore
must be suppressed.
We remand for proceedings consistent with this opinion.
I.
A.
On August 27, 2018, at approximately 10:55 p.m., while on patrol in an
unmarked vehicle, three Piscataway Township detectives observed an
Oldsmobile Sierra Cutlass traveling at a high rate of speed and turn without
4
signaling. 2 The detectives activated the patrol vehicle’s overhead lights and
siren, but the Oldsmobile continued on and ran through a stop sign until it
eventually pulled over in front of 1640 Quincy Street.
One of the detectives approached the Oldsmobile’s open passenger side
window and “immediately recognized” the driver as someone he knew to be
the registered owner of the car -- defendant Rasheem McQueen. The detective
“advised [McQueen] to turn the car off[,] [t]hrow the keys out the window[,]
and put his hands in the air.” Instead, McQueen “put the car into gear and took
off.” The detectives did not give chase because of the public-safety risk and
because they knew the identity of the driver.
Shortly afterwards, McQueen’s grandfather called 9-1-1 to report that
McQueen’s car had been stolen, and McQueen told the dispatcher the same.
The three detectives then went to McQueen’s residence, arrested him, and
transported him to the Piscataway police headquarters.
At headquarters, at approximately 12:11 a.m., Detective Carlos Alameda
interviewed McQueen, who admitted that he fled the scene and falsely reported
his car as stolen. McQueen also told the detective where he had parked his
2
The record before us is based on the transcripts of two days of grand jury
testimony and police reports contained in the State’s supplemental appendix to
this Court. No testimony was taken at the hearing on the motion to suppress.
5
car. 3 McQueen “insisted” on making a telephone call and was permitted to do
so on a landline in the “report writing room.” No one told McQueen that his
call would be recorded -- as were all outgoing calls from headquarters. No
sign was posted warning that all calls were recorded. No one stood over
McQueen to listen to the conversation.
McQueen made the call at around 4:00 a.m. on August 28, before he was
transferred to the Middlesex County Adult Correction Center (Correction
Center). According to Detective Joseph Reilly, the call was made “in
Detective Alameda’s presence,” and “[McQueen] was very mumbled on the
phone, hiding what his conversation was.”
Later that day, at about 1:00 p.m., Detective Reilly responded to a report
of a gun found on the lawn at 1650 Quincy Street, the home next door to the
address where McQueen had been stopped the previous evening. There, on the
lawn, Detective Reilly recovered a loaded .38 caliber revolver, with one spent
shell in the cylinder. The serial number on the handgun was defaced.
After the recovery of the gun, Detective Reilly became “suspicious”
about the call McQueen had made earlier in the morning from headquarters.
Without securing a warrant or a subpoena, or consent from McQueen,
3
A later search of McQueen’s car uncovered an oxycodone pill.
6
Detective Reilly and Detective Sergeant Michael Coffey listened to
McQueen’s recorded conversation. 4
The recording revealed that McQueen called his girlfriend, eighteen-
year-old Myshira Allen-Brewer. During the conversation, McQueen told
Allen-Brewer to look for his “blicky” -- apparently a slang name for a handgun
-- on the side yard of a house in an area on Quincy Street. He gave her
directions to the location and told her that unless she found the “blicky” first
“he would be in a lot of trouble.” 5
While at the Correction Center, McQueen made telephone calls to Allen-
Brewer on a clearly designated recorded line. During telephone calls placed
from the Correction Center, an automated message advises the parties that
their conversation is being recorded. Additionally, inmates at the Correction
Center receive a pamphlet informing them that their “calls may be monitored
and recorded except calls to the Internal Affairs Unit and legal telephone
calls.” In their conversations, McQueen again told Allen-Brewer to look for
the “blicky.” She responded that she had tried and could not find it. He told
4
Neither a recording of the conversation nor a transcript of it was made part
of the record. Our understanding of that conversation comes from the grand
jury testimony of Detective Reilly and Detective Sergeant Coffey.
5
The State represented in its brief and at oral argument that, during the
conversation, McQueen told Allen-Brewer that he was “locked up.”
7
her to return to the scene and search the grass because he had thrown it “fairly
far.”
The Middlesex County Prosecutor’s Office secured the recording of
those Correction Center conversations through the issuance of a grand jury
subpoena.
B.
A Middlesex County grand jury returned a multi-count indictment
against McQueen and Allen-Brewer. We recite only the charges against Allen-
Brewer, whose appeal is before us: second-degree conspiracy to unlawfully
possess a handgun, N.J.S.A. 2C:39-5 and 2C:5-2; third-degree attempted
hindering by attempting to suppress evidence that might aid in the
apprehension or prosecution of McQueen, N.J.S.A. 2C:29-3(a)(3) and 2C:5-1;
and fourth-degree attempted obstruction of the administration of law or a
government function, N.J.S.A. 2C:29-1(a) and 2C:5-1.
Allen-Brewer and McQueen both moved to suppress their telephone
conversations recorded by the Piscataway Police Department and the
Correction Center. The motion judge suppressed the recorded calls, finding
that the State had not complied with the dictates of the New Jersey
Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A.
8
2A:156A-1 to -37. The judge also relied on his written unpublished decision
in State v. Jackson. 6
The judge suppressed the calls from the Correction Center particularly
because the Wiretap Act does not authorize the Prosecutor’s Office to issue “a
subpoena duces tecum to retrieve jail calls from a correctional facility.” The
judge also suppressed the call from police headquarters primarily based on his
interpretation of the Wiretap Act. He determined that although McQueen had
a diminished expectation of privacy in his location -- police headquarters -- he
still retained an expectation of privacy in his telephone conversation, in the
absence of notice that his call would be recorded. The judge stated that
“[p]hone calls have always been different” and found no exception in the
Wiretap Act permitting the interception of the McQueen/Allen -Brewer call
“without prior authorization,” such as a warrant or consent.
6
The Appellate Division later reversed that decision, which suppressed the
recorded conversations of the defendant-inmates who made calls from two
county correctional facilities. 460 N.J. Super. 258 (App. Div. 2019), aff’d,
241 N.J. 547 (2020). The Appellate Division rejected the motion judge’s
holding that the recording of inmate calls violated the New Jersey Wiretap
Act, Title III of the Federal Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. §§ 2510 to 2520 (Federal Wiretap Act), and Article I,
Paragraph 7 of the New Jersey Constitution. See id. at 266, 268-69.
9
Because the suppression of the evidence against Allen-Brewer left the
State without the means to prosecute her, the motion judge dismissed the
indictment against her.
The Appellate Division granted the State’s motions for leave to appeal
from the orders suppressing the evidence against Allen-Brewer and McQueen
and dismissing the indictment against Allen-Brewer.
C.
In an unpublished per curiam opinion, a three-judge panel of the
Appellate Division reversed the suppression of the Correction Center calls and
reinstated the charges against Allen-Brewer. The panel held that neither the
Federal Wiretap Act nor the New Jersey Wiretap Act barred the interception,
recording, or production by grand jury subpoena of the Correction Center calls
between McQueen and Allen-Brewer. The panel relied on the decision in
Jackson, 460 N.J. Super. 258, in finding that a detainee at the Correction
Center, such as McQueen, is placed on notice that his telephone conversations
will be recorded and may be overheard. The panel therefore reasoned that
McQueen and Allen-Brewer had no justifiable expectation that their
communications were not subject to interception, citing In re Application for
Warrants to Obtain Comm’ns from Twitter, Inc., 448 N.J. Super. 471, 475
(App. Div. 2017).
10
The panel, however, split on the legality of the seizure of the police
station call. The panel majority affirmed the suppression of that call, finding
that the seizure of the McQueen/Allen-Brewer conversation violated the
Fourth Amendment of the United States Constitution. The majority
determined that (1) McQueen demonstrated a subjective expectation of privacy
by “deliberately lowering his voice so an officer . . . would not overhear” his
conversation with Allen-Brewer, (2) McQueen and Allen-Brewer’s
“expectation of privacy was reasonable in the absence of any warning” that the
call would be recorded, and (3) their expectation of privacy “should be one
‘that society is prepared to recognize as reasonable,’” quoting State v. Evers,
175 N.J. 355, 369 (2003).
In support of that position, the majority distinguished a police station
from a correctional institution and noted that ordinary citizens are frequently
present in police stations for a variety of reasons, including as applicants for
gun permits and as victims or arrestees accompanied by family and friends.
The majority believed that, in the absence of notice, such individuals would
reasonably assume that their telephone calls from the stationhouse are private
and not taped. The majority declined to “reach the question of whether the
recording of the call would violate the Wiretap Act.”
11
The dissenting judge had a different view. In his opinion, the general
public has “knowledge that police department telephones are recorded,” and,
therefore, it would be unreasonable for anyone using a stationhouse landline --
especially an arrestee waiting to be transported to a county jail --to expect the
call to be private. On that basis, the dissenting judge determined that society
is not prepared to recognize as reasonable “McQueen’s expectation that his
conversation on a police station telephone [would be] private,” even in the
absence of notice that his call would be recorded. Similarly, he stated that
Allen-Brewer “could not reasonably have expected that her conversation with
McQueen . . . would be private” when she undoubtedly knew he was in
custody. Last, he concluded that neither the Federal nor State Wiretap Act
prohibited the police from recording a call placed from the stationhouse or
disclosing it to the prosecutor.
D.
The State filed a motion for leave to appeal from the appellate panel’s
affirmance of the suppression of the police station call, relying primarily on
the opinion of the panel’s dissenting member. See R. 2:2-2(a). 7 Allen-Brewer
7
When there is a dissent in the Appellate Division on an issue arising from a
final judgment, an appeal may be taken to this Court “as of right.” R. 2:2-
1(a)(2). Here, because the charges against Allen-Brewer were reinstated, the
appeal was interlocutory, requiring the filing of a motion for leave to appeal.
12
filed a protective cross-motion for leave to appeal -- in the event we granted
the State’s motion -- seeking to have this Court declare that the Correction
Center calls were the “fruit” of the unlawfully recorded police station call. 8
We granted the State’s motion and denied Allen-Brewer’s cross-motion. 244
N.J. 244 (2020); 244 N.J. 245 (2020).
We granted the motions of the American Civil Liberties Union of New
Jersey (ACLU), the Association of Criminal Defense Lawyers of New Jersey
(ACDL), and the Seton Hall University School of Law Center for Social
Justice (Center for Social Justice) to participate as amici curiae. The Attorney
General of New Jersey, who had participated as amicus curiae before the
Appellate Division, retained amicus status.
II.
A.
The State and amicus Attorney General (collectively, the State), in large
part, repeat the arguments advanced by the appellate panel’s dissenting judge
-- that McQueen (an arrestee), and by extension Allen-Brewer, had no
R. 2:2-2. A motion for leave to appeal may be granted “when necessary to
prevent irreparable injury.” R. 2:2-2(a).
8
Neither the trial court nor the Appellate Division addressed the “fruit of the
poisonous tree” argument raised by Allen-Brewer in her protective cross-
motion before this Court.
13
reasonable expectation of privacy in a telephone conversation on a police
station phone line that is commonly known to be recorded. The simple logic
of the State’s position is that because McQueen had no reasonable expectation
of privacy in the telephone call, the recording of and listening to the
conversation did not constitute a search, and because the police did not
conduct a search, the police did not need a warrant to record or listen to the
call. The State concedes that no published case in this state and few in other
jurisdictions address the issue here but adopts the reasoning of the dissent that
“[g]iven the general knowledge that police department telephones are
recorded, notice is implied,” citing Amati v. City of Woodstock, 176 F.3d 952,
955 (7th Cir. 1999), and other federal cases. The State also reasons that the
recording of the McQueen/Allen-Brewer conversations falls within what it
characterizes as “the ‘plain hearing’ exception to the warrant requirement.”
The State, moreover, contends that the same interest in promoting
institutional security and public safety that animated the decision in Jackson,
which upheld the recording of calls from a county jail (albeit with notice to
inmates), justifies the recording of calls from a police station. Last, the State
maintains that Allen-Brewer possesses no greater privacy rights in the
telephone conversation than McQueen. Thus, if McQueen made the
conversation available to law enforcement through his voluntary use of a
14
stationhouse phone line, then Allen-Brewer’s misplaced confidence in the
privacy of that conversation is not conferred constitutional protection. 9
B.
Allen-Brewer and supporting amici (the ACLU, ACDL, and Center for
Social Justice) echo many of the points made by the panel majority. They
assert that the recording of the McQueen/Allen-Brewer conversation without
consent, a warrant, or a valid exception to the warrant requirement violated
both the Federal and State Constitutions. They collectively maintain that this
state’s constitutional jurisprudence provides heightened protection to
telephone calls in many different settings, and that such protection should
extend to a police station phone call made by an arrestee without notice that
his conversation will be recorded. They assert that no empirical evidence has
been presented that social norms do not give rise to an expectation of privacy
in an arrestee’s call from a stationhouse.
9
We do not address the Attorney General’s argument that the routine
recording of police station phone lines does not violate the New Jersey or
Federal Wiretap Acts. The issue on which the members of the appellate panel
differed and on which this Court granted leave to appeal was the
constitutionality of the recording of and listening to the McQueen/Allen-
Brewer stationhouse conversation without consent, a warrant, or an exception
to the warrant requirement. See Bethlehem Twp. Bd. of Educ. v. Bethlehem
Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982) (“[A]s a general rule an amicus
curiae must accept the case before the court as presented by the parties and
cannot raise issues not raised by the parties.”).
15
Indeed, Allen-Brewer and amici suggest that the public’s understanding
is that an arrestee in police custody has the right to one free call -- to an
attorney, a loved one, or a friend -- to seek advice or comfort, without fear of
eavesdropping by law enforcement. They underscore that it would be
incongruous that arrestees would have less privacy protection in a police
station call than inmates in a county jail, who are given notice that their
telephone calls are recorded, citing Jackson.
Allen-Brewer and amici note that whatever institutional security
concerns law enforcement may have are harmonized with constitutional
concerns by warning arrestees and others using a police line that calls are
recorded and may be monitored. They also reject the argument that the plain -
hearing exception to the warrant requirement applies, emphasizing that
McQueen spoke with his voice lowered to keep his communication private and
that no officer overheard the conversation.
Last, they insist that Allen-Brewer’s reasonable expectation of privacy
from governmental intrusion is independent of and different from whatever
privacy rights McQueen possessed at the police station. If the suppression of
the police station call is upheld, Allen-Brewer claims that the Correction
Center calls must be suppressed as fruit of the poisonous tree.
16
III.
A.
The only issue before the Court is the one on which the appellate panel
divided: whether Allen-Brewer had a constitutionally protectible privacy
interest in her conversation with McQueen, who called her on a police line
from the stationhouse after his arrest. 10 The resolution of that issue depends on
whether Allen-Brewer had a reasonable expectation of privacy in that call and,
if she did, whether the non-consensual and warrantless recording of and
listening to her conversation by law enforcement officers violated the
constitutional right to be free from unreasonable searches and seizures.
For many decades, “New Jersey has had an established policy of
providing the utmost protection for telephonic communications .” State v.
Hunt, 91 N.J. 338, 345 (1982). Consistent with that policy, this Court has
charted a different path from federal law and conferred greater privacy
10
Typically, a court would first determine whether the non-consensual and
warrantless taping of the McQueen/Allen-Brewer conversation violated either
the Federal or State Wiretap Acts and only, if necessary, address the
constitutional issue. Comm. to Recall Robert Menendez From the Off. of U.S.
Senator v. Wells, 204 N.J. 79, 95 (2010) (noting that courts “strive to avoid
reaching constitutional questions unless required to do so” ). Here, the
majority of the appellate panel decided not to resolve the statutory question,
and the panel divided on the constitutional question. We accept the case as it
comes before us and address the issue on which this Court granted leave to
appeal.
17
protections to telecommunications under the New Jersey Constitution. See,
e.g., State v. Lunsford, 226 N.J. 129, 155 (2016) (telephone billing records);
State v. Earls, 214 N.J. 564, 587-88 (2013) (cell-phone location data); State v.
Reid, 194 N.J. 386, 399 (2008) (internet subscriber information); Hunt, 91 N.J.
at 348 (telephone billing records).
In recognizing that the New Jersey Constitution “may be a source of
‘individual liberties more expansive than those conferred by the Federal
Constitution,’” State v. Novembrino, 105 N.J. 95, 144-45 (1987) (quoting
Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980)), we have
construed Article I, Paragraph 7 of our State Constitution more broadly than its
Fourth Amendment counterpart in ensuring “a person’s reasonable expectation
of privacy from untoward government intrusion,” particularly within the
sphere of telecommunications. See State v. Manning, 240 N.J. 308, 328
(2020); see also N.J. Const. art. I, ¶ 7 (guaranteeing “[t]he right of the people
to be secure in their persons . . . against unreasonable searches and seizures”).
Indeed, under our state constitutional jurisprudence -- unlike the federal
approach under the Fourth Amendment -- we apply an objective test to
determine whether individuals have a reasonable expectation of privacy in the
matter in question. See State v. Hinton, 216 N.J. 211, 236 (2013) (“Unlike the
federal test, the New Jersey constitutional standard does not require the
18
defendant to prove a subjective expectation of privacy.”). The “streamlined”
objective inquiry under Article I, Paragraph 7 simply asks whether the
individual’s expectation of privacy is reasonable. Ibid. In other words, is the
individual’s expectation of privacy one that “society is prepared to recognize
as reasonable?” See Evers, 175 N.J. at 369 (quoting Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring)).
Given the lack of certainty in this area of federal law, we turn to the
broader protections afforded under Article I, Paragraph 7 of our State
Constitution in analyzing whether McQueen and Allen-Brewer possessed a
reasonable expectation of privacy in the police station call.
B.
We have long realized that the telephone is “an essential instrument in
carrying on our personal affairs.” Hunt, 91 N.J. at 346. “When a telephone
call is made, it is as if two people are having a private conversation in the
sanctity of their living room. It is generally understood to consist of a
conversation between two persons, no third person being privy to it in the
absence of consent.” Ibid.The general societal “assumption [is] that the people and places one calls
on a telephone, no less than the resulting conversations, will be private. The
place where such a call is made does not matter, be it home, office, hotel, or
19
even public phone booth.” State v. Mollica, 114 N.J. 329, 344 (1989)
(emphasis added) (citing Katz, 389 U.S. at 351-52). “The telephone caller is
‘entitled to assume that the words he utters into the mouthpiece will not be
broadcast to the world.’” Hunt, 91 N.J. at 346-47 (quoting Katz, 389 U.S. at
352).
It follows that “what [a person] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected” and that a
person does not lose the right to the privacy of a telephone call “simply
because he made his calls from a place where he might be seen.” Katz, 389
U.S. at 351-52; see also Mollica 114 N.J. at 344 (“[A]n expectation of privacy
. . . consists of a belief that uninvited people will not intrude in a particular
way.” (alteration and omission in original) (quoting United States v. Lyons,
706 F.2d 321, 326 (D.C. Cir. 1983))). It is “not the ownership or possessory
right to the telephone, nor even its location, as such, that creates the
expectation of and entitlement to privacy; rather, it is the use of the telephone
to engage in private and personal conversations that implicates the privacy
protection.” Mollica, 114 N.J. at 342.
However, “[i]f one party makes the conversation available to others,
such as through the use of a speaker phone or by permitting someone else to
hear . . . the privacy interest does not remain the same.” Hunt, 91 N.J. at 346.
20
A person can hardly claim a reasonable expectation of privacy in a matter that
the “person knowingly exposes to the public.” See State v. Stott, 171 N.J. 343,
354 (2002) (quoting Katz, 389 U.S. at 351). Additionally, an individual’s
“misplaced confidence” in a person who consents to share a conversation or
information with the government is not protected by Article I, Paragraph 7.
See Evers, 175 N.J. at 370.
C.
Merely because a person has a protectible privacy right in a telephone
call placed from a home, an office, a motel, or a telephone booth does not
necessarily mean that an arrestee has the same privacy right in a call placed
from a police station. A police station’s “report writing room” is not an area
open to the public, and legitimate security concerns must be taken into account
in the setting of a stationhouse.
Few would dispute that an arrestee has a lesser expectation of privacy
within the confines of a police station. Certainly, an arrestee does not have
freedom of movement. A police station, however, is not a constitution -free
zone. An arrestee is free to exercise his constitutional rights in a stationhouse,
such as invoking the right to remain silent or requesting the assistance of
counsel. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Within a
stationhouse, a juvenile taken into custody has a right to consult in private with
21
a parent who is present -- outside of earshot of the attending officers -- before
the police attempt to commence questioning. State in Interest of A.A., 240
N.J. 341, 345 (2020) (stating that juveniles should be advised “of their
Miranda rights in the presence of a parent or guardian before the police
question, or a parent speaks with, the juvenile,” and afterwards, “[o]fficers
should then let the parent and child consult in private.” (emphasis added)).
Clearly, an arrestee cannot make a call from a stationhouse phone line
without the authorization of the police. When permission is given, however,
the State does not suggest that the police have a right to record and listen to an
arrestee’s stationhouse call to his attorney. An arrestee, in custody and cut off
from the world, may have understandable and mundane reasons for making a
stationhouse call, such as to ask a parent to hire an attorney, or a spouse to
contact an employer, or a friend to arrange for childcare. And, of course, the
phone lines are not used exclusively by arrestees. A crime victim or witness,
or those who accompany them to the stationhouse, may use the same police
phone line as McQueen. A stationhouse call may be placed for other than
nefarious reasons.
No empirical evidence has been presented to support a presumption that
there is a general understanding among the public, at least in New Jersey, that
all outgoing phone lines from a police station are recorded or that social norms
22
instruct that an expectation of privacy in a police station call is not one that
“society is prepared to recognize as reasonable.” See Evers, 175 N.J. at 369(quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).
Nevertheless, the State urges the Court to impute notice to the general
public based on a handful of federal cases, which are largely distinguishable (if
not helpful to Allen-Brewer) and, in the end, have no dispositive bearing on
the protections guaranteed by our State Constitution. See Amati, 176 F.3d at
955; see also Siripongs v. Calderon, 35 F.3d 1308, 1319 (9th Cir. 1994);
Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001); United
States v. Correa, 154 F. Supp. 2d 117, 123 (D. Mass. 2001).
In Amati, current and former police department employees, and their
friends and family members, brought a civil lawsuit alleging that the
department violated the Federal Wiretap Act and the Fourth Amendment by
recording their personal calls on outgoing police station lines without their
knowledge. 176 F.3d at 954-56. The United States Court of Appeals for the
Seventh Circuit construed a provision of the Federal Wiretap Act, which
permits the recording of police lines “by an investigative or law enforcement
officer in the ordinary course of his duties.” Id. at 954 (emphasis added)
(quoting 18 U.S.C. § 2510(5)(a)(ii)). The Seventh Circuit held that the
recording of “calls to and from a police department is . . . a routine police
23
practice” and that express notice of the recording was not required because
“what is ordinary is apt to be known; it imports implicit notice.” Id. at 955.
What may be “ordinary” for police department employees and their
family members, however, is not necessarily “ordinary” for the general public.
Amati does not suggest otherwise. In addition, apparently not all federal
courts, at least in the 1990s, were in agreement with Amati that all police
officers were on notice that every outgoing call from a stationhouse was
recorded. See e.g., PBA Local No. 38 v. Woodbridge Police Dep’t, 832 F.
Supp. 808, 814, 819-20, 836 (D.N.J. 1993) (declining to dismiss the
complaints of some plaintiff police officers, who alleged lack of knowledge
that their private conversations were recorded); In re State Police Litig., 888 F.
Supp. 1235, 1249 (D. Conn. 1995) (stating that “plaintiffs have established as
a genuine issue whether any of the notification methods employed by
defendants informed anyone that the State Police automatically recorded all
outgoing as well as incoming calls”).
The other cases cited by the State are distinguishable. In Siripongs, the
defendant placed a call three feet from a police officer and spoke in Thai loud
enough for his voice to be picked up by the officer and captured on his hidden
recorder. 35 F.3d at 1320. The United States Court of Appeals for the Ninth
Circuit essentially held that the defendant did not have a reasonable
24
expectation of privacy in a communication that could be overheard. Ibid. In
contrast, no police officer here could overhear McQueen’s conversation with
Allen-Brewer.
In Adams, the United States Court of Appeals for the Sixth Circuit noted
that, although “the routine and almost universal recording of phone lines by
police departments and prisons” is permissible under the Federal Wiretap Act
and “is well known in the industry and in the general public . . . , courts have
ruled that even prisoners are entitled to some form of notice that such
conversations may be monitored or recorded.” 250 F.3d at 984. Here, Allen-
Brewer and McQueen were not afforded the kind of notice contemplated by
Adams.
Last, in Correa, the United States District Court for the District of
Massachusetts held that the defendant did not have a reasonable expectation of
privacy in a telephone call to a co-conspirator that was overheard by a police
officer “standing nearby.” See 154 F. Supp. 2d at 120-21, 123. Again, the
McQueen/Allen-Brewer conversation was not overheard by a nearby officer.
None of those cases cited by the State support the proposition that the
general public is aware that a call made by a civilian on an outgoing line can
be recorded without notice, or that a call that cannot be overheard by an officer
25
through natural means loses a reasonable expectation of privacy because of a
non-consensual recording on a police line.
D.
We reject the State’s argument that the surreptitious recording of the
McQueen/Allen-Brewer conversation falls within the ambit of the so-called
“plain hearing” exception to the warrant requirement. We acknowledge that,
generally, if a “defendant speaks loudly enough to be overheard his
expectation of privacy vanishes” and that a police officer listening to what he
can naturally hear -- without an enhanced listening device -- acts within the
permissible confines of the Federal and State Constitutions. See State v.
Constantino, 254 N.J. Super. 259, 265-68 (Law Div. 1991).
However, in the case before us, no police officer heard through the use
of the naked ear either side of the McQueen/Allen-Brewer conversation. Their
conversation was not heard by the police in real time but only later because --
without notice to either party -- their conversation was recorded on a police
line. Although this Court has yet to directly address the metes and bounds of
the plain-hearing doctrine, whatever the ambit of that doctrine may be, the
surreptitiously recorded conversation in this case does not fall within it.
26
E.
We also conclude that Jackson offers no support for the State’s position.
In that case, inmates in the Essex County and Middlesex County correctional
facilities were advised by written notice as well as by a voice message at the
beginning of every telephone call that their conversations might be recorded or
monitored. 11 460 N.J. Super. at 266. The Prosecutor’s Office issued grand
jury subpoenas to both facilities for phone calls made by the defendant
inmates. Id. at 267-68. The Appellate Division held that the inmates did not
possess a reasonable expectation of privacy in their calls under either the
Fourth Amendment or Article I, Paragraph 7 of our State Constitution.
The Appellate Division reasoned that “the correctional facilities’ interest
in maintaining institutional security and public safety outweighs the right to
privacy asserted here.” Id. at 276 (emphasis added). The use of “here”
denotes the recognition that the inmates in the two facilities knew that they
were “being monitored and recorded when speaking on the phone” and
therefore retained no “reasonable expectation of privacy.” Ibid. The
Appellate Division’s holding that the defendant-inmates had no reasonable
11
The protocols at both facilities carved out an exception to the recording and
monitoring policy for calls made to attorneys or internal affairs. Jackson, 460
N.J. Super. at 266.
27
expectation of privacy in their calls was premised on two critical factors: the
correctional facilities’ legitimate security interests and the notice given to
inmates that their calls might be recorded and monitored. Id. at 276-77.
IV.
A.
In the case before us, we conclude that, under Article I, Paragraph 7 of
the New Jersey Constitution, an arrestee has a reasonable expectation of
privacy in a call made from a police station in the absence of notice that the
conversation may be monitored or recorded. We come to this conclusion for a
number of reasons.
First, our State Constitution confers on New Jersey residents the “utmost
protection [in their] telephonic communications,” see Hunt, 91 N.J. at 345,from wherever the call is placed; “it is the use of the telephone to engage in
private and personal conversations that implicates the privacy protection ,”
Mollica, 114 N.J. at 342. Police monitoring of telephone conversations --
without consent, a warrant, or other appropriate judicial authorization --
empowers the government to arbitrarily peer “into the most private sanctums
of people’s lives” in violation of the privacy protections afforded by Article I,
Paragraph 7. See Manning, 240 N.J. at 328.
28
Second, the State has provided no factual support and scant judicial
authority for the notion that New Jersey’s residents have a widespread
understanding that all outgoing telephone calls from a police station are
recorded. Such recordings would capture not just the private conversations of
arrestees, but also highly personal conversations of crime victims, witnesses,
and others who happen to find themselves in a stationhouse. Whatever notice
may be “implied” in the case of police officers who use recorded police lines,
see Amati, 176 F.3d at 955, cannot be implied in the case of civilians who do
not frequent a police station.
Additionally, as noted in the brief filed by Seton Hall’s Center for Social
Justice, it may well be that the general belief, as reflected in popular culture, is
that an arrestee typically can make one free call from the stationhouse --
without an officer eavesdropping into that private conversation -- which could
be to a lawyer, a loved one, or a trusted advisor. Consumers who commonly
engage in commercial transactions, moreover, expect that if their
conversations are taped, they will hear a beeping sound or an announcement
that the call may be recorded. If we attributed to New Jersey residents an
awareness of the protocols in correctional facilities, such as those in Essex
County and Middlesex County, where inmates are given double notice that
outgoing calls are monitored or recorded, would those residents not think a
29
police station would give some form of notice to arrestees before recording
their conversations?
Third, institutional security and public safety are legitimate concerns for
a police station, just as they are for a correctional facility. Surely, if giving
notice in correctional facilities to inmates that their calls may be monitored or
recorded will not compromise security or public safety in those institutions, it
is difficult to imagine that some reasonable notice to arrestees will undermine
security in a police station. It is the monitoring or recording that provides the
guarantee of security; notice does not undermine and may enhance that
objective by deterring the unlawful use of the stationhouse line.
Fourth, the right to notice -- if there is monitoring or recording of
telephone conversations by police at the stationhouse -- accords with basic
notions of fairness and decency. An arrestee transported to a police station,
who is in custody and given the opportunity to make a telephone call, would
naturally reach out to a family member or friend (if not an attorney) for advice,
support, or comfort. 12 The warrantless and surreptitious monitoring or
12
Monitoring of an arrestee’s call to a lawyer is constitutionally forbidden,
regardless of notice. See State v. Sugar, 84 N.J. 1, 13 (1980). An arrestee
cannot be given the unpalatable choice of speaking with an attorney in the
unwelcome presence of a police officer or on a recorded line, or not speaking
with an attorney at all.
30
recording of calls of an arrestee who is presumed innocent does not comport
with the values of privacy that are prized in our free society. McDonald v.
United States, 335 U.S. 451, 453 (1948) (“[T]he right of privacy [is] one of the
unique values of our civilization and, with few exceptions, stays the hands of
the police unless they have a search warrant issued by a magistrate on probable
cause supported by oath or affirmation.”).
Fifth, we do not determine whether an arrestee has a reasonable
expectation of privacy in a telephone conversation by examining the nature of
the conversation after the police have eavesdropped. United States v. Di Re,
332 U.S. 581, 595 (1948) (“[A] search is not to be made legal by what it turns
up. In law it is good or bad when it starts and does not change character from
its success.” (footnote omitted)); McDonald, 335 U.S. at 453 (“[The]
guarantee of protection against unreasonable searches and seizures extends to
the innocent and guilty alike.”). The fruits of an unlawful search cannot
provide an after-the-fact justification for the search. That some individuals
will use the telephone for unlawful purposes -- whether the telephone is
located in a home, a business, or even a police station -- cannot be
determinative of whether people generally have a constitutional right to the
privacy of their conversations, free from government intrusion.
31
Sixth, we find that McQueen and Allen-Brewer had an expectation of
privacy in their conversation that “society is prepared to recognize as
reasonable.” Evers, 175 N.J. at 369 (quoting Katz, 389 U.S. at 361). Allen-
Brewer’s expectation of privacy is largely derivative of McQueen’s privacy
right. If McQueen had been placed on notice that his call might be monitored
or recorded and proceeded to make the call -- an implied consent scenario --
then Allen-Brewer’s misplaced confidence in McQueen’s judgment would not
necessarily confer on her an independent right of privacy. Id. at 370 (“There is
no constitutional protection for misplaced confidence or bad judgment when
committing a crime.”).
B.
Our holding that McQueen and Allen-Brewer enjoyed a reasonable
expectation of privacy in the police station call means that the Piscataway
police had to comply with the warrant requirement of Article I, Paragraph 7, in
the absence of one of the “specifically established and well-delineated
exceptions to the warrant requirement,” such as consent or exigent
circumstances. See Manning, 240 N.J. at 328 (quoting State v. Hemenway,
239 N.J. 111, 126 (2019)). “Because . . . searches and seizures without
warrants are presumptively unreasonable, the State bears the burden of
32
demonstrating by a preponderance of the evidence that an exception to the
warrant requirement applies.” --
Id. at 329.
Here, the Piscataway police did not secure either a warrant for the
seizure of the recorded conversation or McQueen’s or Allen-Brewer’s consent
to monitor or record their call. Nor has the State attempted to justify the
seizure based on exigent circumstances. Therefore, the McQueen/Allen-
Brewer stationhouse conversation must be suppressed.
To be clear, police departments that record or monitor outgoing calls of
arrestees must give them reasonable notice of that practice. Reasonable notice
may be satisfied in different ways. For example, the police could have an
arrestee read and sign a form that explains the practice or could post a
prominent sign by the telephone. Those examples are not intended to suggest
that other methods would not be equally or more effective. Of course, forms
or signs must take account of language differences, and attorney conversations
may not be monitored.
V.
In accordance with our long-standing jurisprudence under Article I,
Paragraph 7, we affirm the judgment of the Appellate Division upholding the
suppression of the recording of the McQueen/Allen-Brewer stationhouse
33
conversation. We remand to the trial court for proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion.
34