The Right to Privacy and Stationhouse Phones (Part 5)

The Court concluded with the following in relevant part: 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.

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 either a warrant for the seizure of the recorded conversation or McQueen’s or AllenBrewer’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.

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. The Appellate Division decision is affirmed and the case is remanded to the trial court.

The Court cites to the long-recognized holding that “the fruits of a search cannot justify its fruits.” This means that the fact that the unlawful search turned up damning evidence does not make it any less unlawful. Under the circumstances, the suppression of damning evidence is the price that must be paid in order to deter the police from invading the privacy of innocent parties in the future.