by Douglas Ankney

The Supreme Court of New Jersey held that the right of privacy under Article 1,Paragraph 7, of the New Jersey Constitution protects recorded calls made on a police stationhouse telephone from warrantless seizure in the absence of fair notice that the conversation is being monitored or recorded, even when one of the participants on the call is a person who has been arrested and is in police custody

Police pulled over Rasheem McQueen. He stopped in front of a residence on 1640 Quincy Street. As officers approached, McQueen put his vehicle in gear and took off. The officers did not give chase because of the public-safety risk and because they knew the identity of the driver. Three detectives later went to McQueen’s house and arrested him.

At the Piscataway police headquarters, McQueen “insisted” on making a telephone call. He made the call in Detective Carlos Alameda’s presence on a landline in the “report writing room.” McQueen “mumbled on the phone, hiding what his conversation was.” No one informed McQueen his call would be recorded as were all outgoing calls from headquarters. Nor were any signs posted warning that all calls were being recorded. He was subsequently transferred to Middlesex County Adult Correctional Center (“MCACC”).

Later that afternoon, Detective Joseph Reilly responded to a report of a gun found on the lawn of the home next door to where McQueen had initially stopped his vehicle. Reilly recovered a .38 caliber revolver.

Without securing a warrant, subpoena, or consent from McQueen, Reilly listened to McQueen’s recorded conversation. The recording revealed that McQueen had called his girlfriend Myshira Allen-Brewer. During the call, McQueen instructed her to go to the Quincy Street location and look for his “blicky”—an apparent slang name for his handgun.

While at MCACC, McQueen made several calls to Allen-Brewer, repeatedly instructing her to look for his “blicky.” She responded that she had tried but could not find it. The telephone calls from MCACC included an automated message warning the parties their calls are being recorded. Additionally, MCACC prisoners and detainees receive a pamphlet informing them their “calls may be monitored and recorded.”

The Middlesex County Prosecutor’s Office secured the recording of the MCACC phone calls. Allen-Brewer was charged with several offenses in relation to her attempt to find the handgun in an effort to retrieve/remove it. McQueen was also charged, but he was not the subject of this appeal.

Both parties moved to suppress the recordings of their phone calls from MCACC and from the Piscataway Police Department. The motion judge suppressed the recorded calls, reasoning the State had not complied with the New Jersey Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), N.J.S.S. 2A:156A-1 to -37. The Appellate Division reversed with respect to the MCACC calls but affirmed the suppression of the call made from Piscataway Police Department. The New Jersey Supreme Court granted the State further review, stating that the “only issue before the Court is … whether Allen-Brewer had a constitutionally protectible privacy interest in her conversation with McQueen [with respect to the phone call made by McQueen from the Piscataway Police station]….”

The Court observed, “For many decades, ‘New Jersey has had an established policy of providing the utmost protection for telephonic communications.’” State v. Hunt, 450 A.2d 952 (N.J. 1982). The New Jersey Constitution offers greater privacy protections for telecommunications than federal law. See State v. Lunsford, 141 A.3d 270 (N.J. 2016) (phone billing records); State v. Earls, 70 A.3d 630 (N.J. 2013) (cell phone location data); State v. Reid, 945 A.2d 26 (N.J. 2008) (internet subscriber information).

The Court explained that Article I, Paragraph 7, of the New Jersey Constitution protects an individual’s reasonable expectation of privacy, and in contrast to the approach under the Fourth Amendment that involves both an objective and subjective test, the only inquiry is whether the “individual’s expectation of privacy [is] one that ‘society is prepared to recognize as reasonable?’” State v. Evers, 815 A.2d 432 (N.J. 2003) (quoting Katz v. United States, 389 U.S. 347 (1967)). That is, the inquiry under the New Jersey Constitution involves only an objective test in determining whether the individual has a reasonable expectation of privacy with respect to the behavior in question. See State v. Hinton, 78 A.3d 553 (N.J. 2013).

The Court noted that 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 even a public phone booth.” State v. Mollica, 554 A.2d 1315 (N.J. 1989). The Court explained that it’s not the ownership or location of the phone that creates the expectation of privacy, but rather, it’s the use of the phone itself to conduct a private conversation that triggers privacy protections. Id.

However, the Court acknowledged that a person under arrest at a police station has a reduced expectation of privacy. For instance, an arrestee doesn’t have freedom of movement and may make a phone call only with the authorization of the police. But, the Court stated, police stations are not a “constitution-free zone.” An arrestee at the police station still has the right to remain silent and right to counsel, and he “may have understandable and mundane reasons for making a stationhouse call … for other than nefarious reasons,” according to the Court.

The Court observed that the State failed to present any empirical evidence “to support a presumption that there is a general understanding among the public … 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.’” Evers.

The Court concluded that under Article I, Paragraph 7, an arrestee has a reasonable expectation of privacy in a phone call made from the police station absent any notice that the call may be monitored or recorded because: (1) New Jersey residents have the utmost protection in their telephonic communications regardless of where the call is placed; (2) the State provided no factual support for the notion that New Jersey’s residents have a widespread understanding that all outgoing calls from a police station are recorded. To the contrary, it may be that there is a general belief an arrestee’s “one phone call” to a lawyer, loved one, or trusted advisor is private; (3) prisoners in correctional facilities are given double notice that their calls are monitored and recorded—it’s unreasonable that an arrestee, who is presumed innocent, be granted less protections; (4) the right to notice of monitoring and recording of phone conversations by police at the station house accords with basic notions of fairness; (5) whether an arrestee has an expectation of privacy in a call made from the police station doesn’t depend on the nature of the conversation as determined by the police’s eavesdropping; and (6) McQueen and Allen-Brewer had an expectation of privacy in their phone call that “society is prepared to recognize as reasonable.” The Court explained that Allen-Brewer’s reasonable expectation of privacy “is largely derivative of McQueen’s privacy right.”

McQueen spoke in a mumbled voice to keep the conversation private, which clearly demonstrated his intent to keep his conversation private. He was not informed or put on notice that his call from the Piscataway Police stationhouse was being recorded. Because the police did not secure a warrant—and the State made no attempt to show an exception to the warrant requirement applied pursuant to State v. Hemenway, 216 A.3d 118 (N.J. 2019)—the stationhouse phone call must be suppressed, the Court ruled.

Accordingly, the Court affirmed the judgment of the Appellate Division upholding the suppression of the stationhouse recording and remanded to the trial court for proceedings consistent with the Court’s opinion. See: State v. McQueen, 256 A.3d 966 (N.J. 2021). 

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