The Right to Privacy and Stationhouse Phones (Part 2)

by | Oct 27, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

pay phone tappedThe New Jersey Supreme Court continued in relevant part: 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. 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).

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.

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.

Justice Albin’s nod to the greater protections that the New Jersey Constitution affords the citizens of New Jersey is refreshing. Until former Governor Christie changed the face of the Court with a majority of pro-prosecution Justices, our state had a rich and consistent history of going above the minimal rights provided by the federal constitution.