STATE OF NEW JERSEY VS. RASHEEM W. MCQUEEN AND MYSHIRA T. ALLEN-BREWER (19-02-0302, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4391-18T1
A-4910-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RASHEEM W. McQUEEN and
MYSHIRA T. ALLEN-BREWER,
Defendants-Respondents.
Argued telephonically February 27, 2020 –
Decided May 19, 2020
Before Judges Alvarez, Suter1 and DeAlmeida
(Judge DeAlmeida dissenting).
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 19-02-0302.
David Michael Liston, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Christopher L.C. Kuberiet, Acting
1
Judge Suter did not participate in oral argument. She joins in the opinion with
counsel's consent. R. 2:13-2(b).
Middlesex County Prosecutor, attorney; David Michael
Liston, of counsel and on the briefs).
Tamar Yael Lerer, Assistant Deputy Public Defender,
argued the cause for respondent Myshira T. Allen-
Brewer (Joseph E. Krakora, Public Defender, attorney;
Tamar Yael Lerer, of counsel on the brief).
Gurbir S. Grewal, Attorney General, attorney for
amicus curiae Attorney General of New Jersey (Sarah
C. Hunt, Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
On leave granted, the State appeals a Law Division order suppressing
recorded phone conversations between co-defendants Rasheem McQueen and
Myshira Allen-Brewer. One tape was made at the Piscataway Police
Department, the others at the Middlesex County Adult Correctional Center
(Correctional Center). Relying on the suppression order, the judge dismissed
the counts of the indictment naming Allen-Brewer. We affirm the judge's May
16, 2019 decision as to the police station recording but reverse as to the calls
from the Correctional Center. We reinstate the indictment counts naming Allen-
Brewer.
The charges arose on August 27, 2018, when McQueen allegedly sped
away from police officers attempting to conduct a traffic stop. He eventually
pulled over, but as the officers left their vehicle and approached him, he fled
A-4391-18T1
2
again. The officers called off the pursuit, but one of them had recognized
McQueen.
Shortly thereafter, McQueen's grandfather phoned the Piscataway Police
Department to report McQueen's car had been stolen; McQueen also got on the
line regarding the purported theft. Police arrested McQueen at his home and
took him to headquarters for processing.
McQueen's car was promptly located, searched, and found to contain a
quantity of oxycodone. Before being transported to the Correctional Center,
McQueen called Allen-Brewer on the station house phone. During the call,
McQueen lowered his voice to prevent a nearby officer from listening in.
McQueen was not advised all telephone calls at the station are recorded. The
tape later revealed that McQueen asked Allen-Brewer to dispose of a firearm he
had discarded as he drove away from police during the aborted stop.
McQueen and Allen-Brewer spoke again the day after that, this time on
the phone at the Correctional Center where McQueen was detained. During that
conversation, Allen-Brewer told McQueen she had not found the gun. He
responded that he tossed it into a yard with a white picket fence. Acting on a
homeowner's complaint, police recovered a loaded handgun, serial numbers
removed, in a yard on the street where McQueen had directed Allen-Brewer.
A-4391-18T1
3
On August 29, Allen-Brewer again told McQueen, while on the
Correctional Center phone, that she could not find the gun. McQueen said he
threw it fairly far into the grass.
At the beginning of inmate Correctional Center calls, an automated
message is played stating all calls are recorded and monitored. Additionally,
upon arrival every inmate is given a pamphlet explaining Correctional Center
telephone calls are recorded and monitored, with the exception of those made to
the Internal Affairs Unit and calls to attorneys. The guidelines also advise
inmates that abuse of phone privileges "will result in disciplinary action, and
can lead to prosecution."
Through service of a grand jury subpoena, the Prosecutor's Office
obtained McQueen's taped calls from the police station and the Correctional
Center. They were presented, along with other evidence, to the grand jury,
which indicted McQueen as follows: second-degree eluding, N.J.S.A. 2C:29-
2(b) (count one); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b)(1) (count two); fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-3(d) (count three); fourth-degree unlawful possession of
ammunition, N.J.S.A. 2C:58-3.3(b) (count four); third-degree hindering his own
apprehension (by discarding a handgun), N.J.S.A. 2C:29-3(b)(1) (count five);
A-4391-18T1
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third-degree hindering his own apprehension (by hiding a motor vehicle) (count
six); third-degree hindering (by changing clothes) (count seven); fourth-degree
false reports, N.J.S.A. 2C:28-4(b)(1) (count eight); third-degree possession of a
controlled dangerous substance (oxycodone), N.J.S.A. 2C:35-10(a)(1) (count
nine); second-degree conspiracy to unlawfully possess a handgun, N.J.S.A.
2C:39-5 and 2C:5-2 (count ten); and third-degree attempted hindering (by
conspiring with Allen-Brewer for her to locate and hide a handgun), N.J.S.A.
2C:5-1 and 2C:29-3(b)(1) (count eleven).
Allen-Brewer was charged in count eleven with third-degree attempted
hindering (by aiding McQueen in hindering by secreting the handgun), N.J.S.A.
2C:5-1 and 2C:29-3(a)(3) (count twelve); and fourth-degree attempted
obstruction, N.J.S.A. 2C:5-1 and 2C:29-1(a) (count thirteen).
When he granted the motion to suppress, the Law Division judge found
the station house recording violated New Jersey's Wiretapping and Electronic
Surveillance Control Act (Act), N.J.S.A. 2A:156A-1 to -37, and the Fourth
Amendment. He reached the same conclusion regarding the tapes made at the
Correctional Center. Accordingly, he granted the motions to suppress, and later
granted the motion to dismiss Allen-Brewer's charges.
On appeal, the State raises the following points:
A-4391-18T1
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POINT I
DEFENDANT'S RECORDED TELEPHONE CALLS
ARE NOT INTERCEPTS FOR PURPOSES OF THE
WIRETAP STATUTE, AND DEFENDANT HAD NO
REASONABLE EXPECTATION OF PRIVACY IN
CALLS THAT HE KNEW OR SHOULD HAVE
KNOWN MAY BE RECORDED BY LAW
ENFORCEMENT.
POINT II
THE ORDER DISMISSING ALLEN-BREWER
FROM THE INDICTMENT MUST BE REVERSED
BECAUSE IT WAS BASED ON THE TRIAL
COURT'S ERRONEOUS SUPPRESSION OF
MCQUEEN'S RECORDED TELEPHONE CALLS.
We divide our discussion into two parts. First, we address the phone calls
recorded at the Correctional Center, and secondly, the phone call recorded at the
police station.
I.
The facts are undisputed. As always, we address questions of law de novo.
State v. Pimentel, 461 N.J. Super. 468, 480 (App. Div. 2019). We conclude that
neither the Wiretap Act nor Title 3 of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. §§ 2510-2523 (2018), bars the interception of the
calls McQueen made to Allen-Brewer at the Correctional Center, their
recording, or the production of the recordings to the Prosecutor's Office based
upon issuance of a grand jury subpoena.
A-4391-18T1
6
As we have previously said, recordings made at correctional facilities are
lawful, and are lawfully made available to a prosecuting agency or another law
enforcement agency via a grand jury subpoena. This includes conversations
which touch upon, or which themselves constitute, crimes. See State v. Jackson,
460 N.J. Super. 258 (App. Div. 2019), aff'd, ___ N.J. ___ (2020) (slip op. at 6).
Like in Jackson, inmates at the Correctional Center 2 are advised by way
of an inmate handbook upon their arrival at the jail that telephone calls are
recorded, monitored, and may subject a detainee to discipline or even
prosecution. At the beginning of each call, an automated message is played
reiterating that the call is monitored. Nothing in the record would cause us to
doubt that the recording would have been played at the beginning of each call
McQueen made to Allen-Brewer, or vice versa.
A wire communication within the scope of the Act requires an aural
transfer, or the transfer of the human voice, made at a time the speaker
"exhibit[s] an expectation that such communication is not subject to interception
under circumstances justifying such expectation . . . ." In re Application of State
for Commc'ns Data Warrants to Obtain the Contents of Stored Commc'ns from
2
One of the defendants in Jackson was housed at the same correctional facility
as McQueen. See 460 N.J. Super. at 266 n.2.
A-4391-18T1
7
Twitter, Inc., 448 N.J. Super. 471, 475 (App. Div. 2017) (quoting N.J.S.A.
2A:156A-2(b)). Callers at the Correctional Center know they are being
overheard and recorded.
Since State v. Fornino, 223 N.J. Super. 531 (App. Div. 1988), calls made
by inmates from prison or from correctional facilities have been exempted from
the Act. Since we hold, pursuant to Fornino and the cases following, that the
calls from the Correctional Center are available to the State in the prosecution
of these co-defendants, we reverse this portion of the suppression order. The
counts of the indictment applicable to Allen-Brewer are therefore reinstated.
II.
The phone call McQueen placed at the police station presents a different
quandary. McQueen had no notice that the conversation would be recorded—
in fact, he was described as deliberately lowering his voice so an officer, sitting
within earshot, would not overhear. His expectation of privacy was reasonable
in the absence of any warning by anyone, orally or in writing, regarding the
recording of the call. We do not reach the question of whether the recording of
the call would violate the Wiretap Act because we find the Prosecutor's seizure
of the station house recording without a warrant violated defendants' right to be
free of unreasonable searches and seizures.
A-4391-18T1
8
"[T]he Fourth Amendment protects people, not places." State v. Ford, 278
N.J. Super. 351, 356 (App. Div. 1995) (alteration in original) (quoting Segura
v. United States, 468 U.S. 796, 810 (1984)). A critical interest protected by the
Fourth Amendment is "the security of one's privacy against arbitrary intrusion
by the police . . . ." State v. Novembrino, 105 N.J. 95, 135 (1987) (quoting Wolf
v. Colorado, 338 U.S. 25, 27 (1949)). The Fourth Amendment analysis is two-
fold: first, whether the defendant has manifested a subjective expectation of
privacy and, second, whether society is willing to recognize that expectation as
reasonable. State v. Hinton, 216 N.J. 211, 230 (2013) (quoting California v.
Ciraolo, 476 U.S. 207, 211 (1986)). New Jersey's constitutional standard does
not require a subjective expectation of privacy, only that it be reasonable. Id. at
236.
The Supreme Court's discussion of Katz3 in State v. Stott, 171 N.J. 343(2002), is enlightening. In Katz, the government sought to introduce recordings
3
The 9th Circuit found in United States v. Koyomejian that the Court's holding
in Katz was superseded by the Electronic Communications Privacy Act of 1986
and its predecessor, the Omnibus Crime Control and Safe Streets Act of 1968.
946 F.2d 1450, 1455 (9th Cir. 1991) ("Congress's conclusion that the vague
standards found in Berger and Katz offer inadequate protection for individual
privacy is manifest in its enactment of statutory requirements that go
substantially beyond the minimal constitutional constraints in those two
cases.").
A-4391-18T1
9
"of the petitioner's end of telephone conversations, overheard by F.B.I. agents
who had attached an electronic listening and recording device to the outside of
the public telephone booth from which he had placed his calls." 389 U.S. at
348. The Court observed that a search implicates constitutional principles
whenever a citizen holds a legitimate expectation of privacy in the invaded
place. Stott, 173 N.J. at 354. While using a phone, even in a public booth, a
citizen has a reasonable and constitutionally protected privacy expectation in the
public place. "No less than an individual in a business office, in a friend's
apartment, or in a taxi cab, a person in a telephone booth may rely upon the
protection of the Fourth Amendment." Katz, 389 U.S. at 352. The Court, in
dealing with an alleged police intrusion of a psychiatric patient's room, found
helpful Justice Harlan's comments that "certain spaces otherwise 'accessible to
the public' could, at times, be considered a 'temporar[y] private place' in which
its 'momentary occupants' expectation of freedom from intrusion' would trigger
constitutional protections." Id. at 354. Although arrested, and awaiting
transport in a police station, McQueen's call was entitled to Fourth Amendment
protection.
Additionally, the State must ordinarily comply with the Fourth
Amendment's warrant requirement, considered "an essential check on arbitrary
A-4391-18T1
10
government intrusions into the most private sanctums of people's lives." State
v. Manning, 240 N.J. 308, 328 (2020). Warrantless searches and seizures are
"presumptively unreasonable [and] the State bears the burden of demonstrating
by a preponderance of the evidence that an exception to the warrant requirement
applies." Id. at 329.
Through his conduct of calling while attempting to shield the conversation
from a nearby officer, McQueen demonstrated at least a subjective expectation
of privacy entitled to the additional protection of the Fourth Amendment . His
expectation of privacy should be one "that society is prepared to recognize as
reasonable." State v. Evans, 175 N.J. 355, 369 (2003) (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
A police station is a different institutional environment than a prison or
correctional center. It is not an agency such as a jail or prison, whose sole
purpose is to house those either awaiting disposition of criminal charges, or who
have already been convicted, and are awaiting or serving sentences.
Ordinary citizens enter police stations for a variety of reasons—not just
because they have been arrested. Examples include applicants for gun permits,
victims of crime and their friends and families, and families and friends of
arrestees. All would reasonably assume in the absence of notice to the contrary,
A-4391-18T1
11
that use of the police station phone is as private as if on their own phone, and
certainly not taped. The record does not establish a reason to distinguish
between McQueen's use of the phone and the use by a civilian. 4
McQueen was under arrest in a police station, but in the absence of notice,
he had no reason to doubt his call was as private and secure as if he was using a
phone in a friend's apartment. See In re State Police Litigation, 888 F. Supp.
1235, 1256 (D. Conn. 1995) (holding that, under the Fourth Amendment, in the
absence of proof of notice, "surreptitious recording of unprivileged but private
calls, if proven, involves an invasion of privacy that far outweighs" any
justifications for recording outgoing phone calls from police stations). Al len-
Brewer, at the other end of the line, was similarly situated and she had every
reason to assume her conversation was private and secure. The codefendants'
subjective expectation of privacy is also objectively reasonable, and entitled to
constitutional protection under these facts.
Additionally, as a matter of law, the State has not borne its burden of
demonstrating, by a preponderance of the evidence "that an exception to the
warrant requirement applies." See Manning, 240 N.J. at 329. McQueen was an
4
Although McQueen was likely in an area not accessible to a civilian visitor,
the record is silent on the point.
A-4391-18T1
12
arrestee who, once processed and simply waiting at the station, is sheltered by
the presumption of innocence and, in the absence of some fact not present in this
record, the right to be free under the Fourth Amendment from unreasonable
searches and seizures.
In our colleague's dissent, he relies upon the "general public['s]"
knowledge that phone calls from a police station are routinely recorded , and that
therefore, no reasonable expectation of privacy exists. We do not agree that
such knowledge, given this record, should be imputed either to defendant, who
tried to prevent his conversation from being overheard, to Allen-Brewer, whose
understanding of the circumstances of the call can only be guessed at, or to the
general public.
We also reject the notion that had we reached the wiretap issue, federal
law would support the ready availability to law enforcement of the station house
tape in the absence of notice. See Amati v. City of Woodstock, 176 F.3d 952,
955 (7th Cir. 1999) (refusing to interpret the "ordinary course of business"
exception to the federal wiretap statute to cover investigative recordings of
telephone conversations from police stations); In re State Police Litigation, 888
F. Supp. 1235, 1265-66 (D. Conn. 1995) (rejecting the state's provided law
enforcement purposes for recording all outgoing phone calls from police
A-4391-18T1
13
barracks; holding that any analysis of the federal wiretap statute should not be
limited to the purpose of the recording, "but to the character of the conversation
intercepted"); Bohach v. City of Reno, 932 F. Supp. 1232, 1235 (D. Nev. 1996)
(citations omitted) ("Finally, and more generally, we note that police stations
often record all outgoing and incoming phone calls, 'for a variety of reasons
. . . .' This may or may not violate the wiretapping statutes, depending upon how
it is done."); George v. Carusone, 849 F. Supp. 159, 164 (D. Conn. 1994)
(recognizing the implied consent exception to the wiretap statute applied to the
plaintiff police officers who knew all incoming and outgoing phone calls at the
police station were recorded but not to the arrestee who used the phone while
detained).
Thus, the "seizure" of the conversation was a violation of McQueen and
Allen-Brewer's right to be free of unlawful searches and seizures. We affirm
the judge's suppression of the recording made at the police station.
Reversed in part; affirmed in part; and the dismissed counts against Allen-
Brewer are reinstated.
A-4391-18T1
14
DeALMEIDA, J.A.D., dissenting in part.
I join Part I of the majority's opinion regarding the admissibility of the
recordings of defendants' telephone calls while McQueen was incarcerated at
the county jail. I agree that under our holding in State v. Jackson, 460 N.J.
Super. 258 (App. Div. 2019), aff'd, __ N.J. __ (2020), there is no statutory or
constitutional bar to admission of the county jail recordings. I also agree that in
light of the admissibility of the county jail recordings, there is sufficient
evidence to support the indictment against Allen-Brewer, warranting reversal of
the trial court order dismissing the indictment.
I respectfully disagree, however, with Part II of the majority opinion
concluding the recording of defendants' telephone call while McQueen was in
custody at the police station violated the Fourth Amendment and Article I,
Paragraph 7 of the New Jersey Constitution. The majority holds that McQueen's
expectation of privacy when making the police station call was reasonable
because he was not given a written or oral warning the call would be recorded.
I respectfully disagree with the proposition that the absence of a written or oral
warning is dispositive of the question of the reasonableness of McQueen's
expectation of privacy. After considering the totality of the circumstances, I
conclude McQueen, under arrest, having recently confessed to criminal activity,
and aware he was about to be transported to the county jail, could not reasonably
have expected his call to an alleged co-conspirator on a police department
telephone with a detective present in the room would be private. I reach this
conclusion despite the lack of oral or written notice to McQueen that the
telephones at the police station were recorded, which I consider to be one factor
in a multi-factor analysis.
The following facts are not disputed: McQueen was under arrest when he
was transported to the police station. While at the station, he made incriminating
admissions to investigating officers with respect to eluding police and falsely
reporting his car stolen. After McQueen was told he was about to be transported
to the county jail, he asked to use a landline telephone in the police station. The
telephone McQueen used is in a room in which officers write reports. According
to the State, the room is not open to the public. A detective was present in the
room during at least a portion of McQueen's call, but could not hear what he
said. During the call, McQueen mumbled to hide the contents of his
conversation. McQueen's call, like all calls made on station house telephones,
was recorded. The State concedes McQueen was not provided oral or written
notice the police station telephones were recorded.
A-4391-18T1
2
"In determining the reasonableness of an expectation of privacy . . . , we
start from the premise that '[e]xpectations of privacy are established by general
social norms.'" State v. Hempele, 120 N.J. 182, 200 (1990) (alteration in
original) (quoting Robbins v. California, 453 U.S. 420, 428 (1981) (plurality
opinion), overruled on other grounds, United States v. Ross, 456 U.S. 798(1982)). As I see it, McQueen's expectation that his conversation on a police
station telephone was private was not "one that society is prepared to recognize
as reasonable." State v. Evers, 175 N.J. 355, 369 (2003) (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
I agree with Judge Posner's observation that
[i]t is routine, standard, hence "ordinary" for all calls to
and from the police to be recorded. Such calls may
constitute vital evidence or leads to evidence, and
monitoring them is also necessary for evaluating the
speed and adequacy of the response of the police to tips,
complaints, and calls for emergency assistance.
[Amati v. City of Woodstock, 176 F.3d 952, 954 (7th
Cir. 1999).]
This "routine and almost universal" practice is "well known in the industry and
in the general public . . . ." Adams v. City of Battle Creek, 250 F.3d 980, 984-
85 (6th Cir. 2001); see also Walden v. City of Providence, 596 F.3d 38, 54-55
(1st Cir. 2010). Given the general knowledge that police department telephones
A-4391-18T1
3
are recorded, notice is implied. "[W]hat is ordinary is apt to be known; it
imports implicit notice." Amati, 176 F.3d at 955.
In addition, I respectfully disagree with the premise, upon which the
majority bases its holding, that members of the public, not under arrest but
present in a police station, to whom the majority reasons McQueen should be
treated equally, would reasonably assume in the absence of notice to the
contrary, that use of the station house phone is as private as if using their own
phone. As I see it, the opposite is true. It would be unreasonable f or a member
of the public who happens to be present at a police station and who elects to use
the telephone of a law enforcement agency to expect that their call would be
private. In the hypothetical posed by the majority, the caller has voluntarily
decided to use a law enforcement asset, which is routinely recording calls for a
variety of legitimate purposes associated with the agency's ordinary business, to
make a personal call. In my view, society is not prepared to accept that these
circumstances are the equivalent of a person using their own phone. Our
constitutional privacy protections are designed to prevent police agencies from
intruding into protected realms of personal behavior. Surely, a person who
decides to use a police station's telephone must reasonably expect that they have
A-4391-18T1
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altered the privacy protection equation and voluntarily subjected their call to
potential routine surveillance.
Moreover, McQueen was not a member of the public who happened to be
in the police station and in need of a telephone to make a personal call and should
not necessarily be treated as if he were. He was under arrest for crimes to which
he confessed, about to be transported to the county jail, and in a non-public room
to which detectives had ready assess or were present. See State v. Legette, 227
N.J. 460, 469 (2017) (noting that "the privacy rights of an individual who is
placed under lawful arrest are diminished") (quoting State v. Bruzzese, 94 N.J.
210, 232 (1983)). McQueen did not use the police station's telephone to call his
attorney, which the State concedes would have been a protected communication,
or to contact a family member. He used the police department's telephone to
call an alleged co-conspirator to urge her to remove evidence of his criminal
acts. In my view, society is not prepared to accept McQueen's professed
expectation that this call was private, even in the absence of oral or written
notice that the police station telephones were routinely recorded. See Siripongs
v. Calderon, 35 F.3d 1308, 1319-20 (9th Cir. 1994) (holding no reasonable
expectation of privacy where police surreptitiously recorded defendant's
telephone call while defendant was in custody at police station); United States
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5
v. Correa, 154 F. Supp. 2d 117, 123 (D. Mass. 2001) ("The defendant had no
reasonable expectation of privacy in the phone call he made from the police
station, while under the visible watch of a police officer."). 1
Nor do I view McQueen's circumstances as the equivalent of an
involuntarily committed patient at a psychiatric hospital, who has a privacy
interest in portions of the hospital room he occupied for a long period of time.
State v. Stott, 171 N.J. 343, 355 (2002) (noting defendant's "hospital room is
more akin to one's home than to one's car or office. It is a place to shower, dress,
rest, and sleep."). An arrestee's temporary holding, while awaiting transport to
jail, in a room used by police officers to write reports is dissimilar to a patient's
long-duration stay in a hospital room which "had many of the attributes of a
private living area" which "had served as such a place throughout [the patient's]
occupancy." Id. at 356. I, therefore, respectfully disagree with the majority's
reliance on that precedent. Similarly, in my view, a non-public room in a police
1
I question whether oral or written notice to McQueen at the police station
would have made a difference here. A few hours after the police station call,
McQueen was in the county jail where he was provided with written notice that
telephone calls were recorded, as well as a verbal reminder of recording at the
start of each call. Yet, he made a series of calls on the jail's recorded line further
implicating himself and Allen-Brewer in criminal activity.
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station is not like a public phone booth from which a person can reasonably
expect to make a private call. See Katz, 389 U.S. 347.
Allen-Brewer also had no reasonable expectation of privacy in the police
station telephone call. During the call, McQueen informed Allen-Brewer he was
"locked up." In my view, the unequivocal import of that statement is that
McQueen was in the custody of law enforcement personnel, either at a police
station or county jail. Allen-Brewer could not reasonably have expected that
her conversation with McQueen in such circumstances would be private.
In addition, even if Allen-Brewer was not aware McQueen was in police
custody, his voluntary use of the police station phone based on his unreasonable
expectation of privacy negated any privacy interest she may have had in their
conversation. When "one party makes [a] 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." State v. Hunt, 91 N.J. 338,
346 (1982). "There is no constitutional protection for misplaced confidence or
bad judgment when committing a crime." Evers, 175 N.J. at 370. Allen-Brewer
could not reasonably rely on McQueen protecting the confidentiality of the
contents of their call on the police station telephone.
A-4391-18T1
7
Because the majority concluded the recording of defendants' conversation
on the police station telephone violated constitutional provisions protecting
privacy, it did not reach the question of whether the recording violated the New
Jersey Wiretapping and Electronic Surveillance Control Act (the Wiretap Act),
N.J.S.A. 2A:156A-1 to -37, or Title III of the Federal Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. My review of these
provisions and the legal precedents interpreting them reveal no statutory bar to
admission of the recording of the police station call.
The two statutes prohibit the interception of wire communications,
including telephone calls, as well as the disclosure or use of the contents of any
intercepted wire communication. N.J.S.A. 2A:156A-3, -8; 18 U.S.C. §§ 2511,
2516, 2517; see State v. Worthy, 273 N.J. Super. 147, 150 (App. Div. 1994)
(acknowledging it is well-established that telephone conversations are wire
communications), aff'd, 141 N.J. 368 (1995). Under both statutes, "'[i]ntercept'
means the aural or other acquisition of the contents of any wire, electronic or
oral communication through the use of any electronic, mechanical, or other
device." N.J.S.A. 2A:156A-2(c); 18 U.S.C. § 2510(4). "'[E]lectronic,
mechanical, or other device' means any device or apparatus . . . that can be used
A-4391-18T1
8
to intercept a wire, electronic or oral communication . . . ." N.J.S.A. 2A:156A -
2(d); accord 18 U.S.C. § 2510(5).
The statutes, however, exclude from the definition of "electronic,
mechanical, or other device" "[a]ny telephone or telegraph instrument,
equipment or facility, or any component thereof . . . being used . . . by an
investigative or law enforcement officer in the ordinary course of his duties
. . . ." N.J.S.A. 2A:156A-2(d)(1); 18 U.S.C. § 2510(5)(a)(ii). This exception,
known as the law-enforcement exception, "appl[ies] to telephone equipment
used by law enforcement officers in the ordinary course of their duties,
regardless of whether the monitoring on a particular occasion is random or is
done by an officer who regularly performs that duty." State v. Fornino, 223 N.J.
Super. 531, 545 (App. Div. 1988). Because an interception occurs only when
an intercepting device is used, the use of an excluded device is not an
interception at all under the statutes. Id. at 544-45.
Our courts have held that the routine recording of inmate conversations
on telephones in county jails are not interceptions under either the Wiretap Act
or Title III. Jackson, 460 N.J. Super. at 273. We have not, however, addressed
the question of whether recorded conversations on a police station telephone by
a detainee in police custody fall within the exception in the two statutes. Federal
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precedents, to which we look for guidance when interpreting the Wiretap Act,
In re Application of State for Commc'ns Data Warrants, 448 N.J. Super. 471,
480 (App. Div. 2017), conclude the routine recording of police station telephone
conversations fits within the law-enforcement exception. See Walden, 596 F.3d
at 54-55; Adams, 250 F.3d at 984-85; Amati, 176 F.3d at 954.
The plain language of the statutes unequivocally exempt the recording at
issue here. It is undisputed that all of the telephone calls to and from the police
station are recorded as part of the ordinary duties of an officer of the police
department, an investigative and law enforcement agency. The Wiretap Act and
Title III are not applicable to the recording of defendants' conversation on the
police station telephone.
In addition, because the recording of the police station telephone is not an
interception under the Wiretap Act or Title III, neither statute restricts the police
department's authority to disclose the contents of the recording to the county
prosecutor, as was done here. See United States v. Lewis, 406 F.3d 11, 19-20
(1st Cir. 2005) (finding, because recordings of jail calls are not interceptions,
Title III's restrictions on the use of intercepted communications does not apply).
Even if the statutes applied to the recording or sharing of the recording of
the call,
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[a]ny investigative or law enforcement officer or other
person who, by any means authorized by this act, has
obtained knowledge of the contents of any wire,
electronic or oral communication, or evidence derived
therefrom, may disclose or use such contents or
evidence to investigative or law enforcement officers of
this or another state, or any of its political subdivisions,
. . . to the extent that such disclosure or use is
appropriate to the proper performance of the official
duties of the officer making or receiving the disclosure.
[N.J.S.A. 2A:156A-17(a); accord 18 U.S.C. § 2517(1).]
Defendants, therefore, have not raised any cogent argument that the recording,
production, or use of their call on the police station telephone was unla wful.
For these reasons, I respectfully dissent from Part II of the majority
opinion and would reverse the trial court order to the extent it suppresses the
recording of defendants' telephone conversation on the police station telephone.
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