NJ: Surreptitious recording of defendant and counsel in police interview room suppressed

The surreptitious recording of a meeting with defendant and his counsel in a police interview room when defendant turned himself in was suppressed and contrary to clearly established law. It led to discovery of witnesses. The indictment is not dismissed, however, for police misconduct because no strategy about the case was disclosed. Defense counsel told defendant they maybe were being recorded, and played it close to the vest. State v. Mazzarisi, 2015 N.J. Super. LEXIS 68 (April 28, 2015):

The conceded facts here distinguish this case from Ates, Santiago, and Noriega. Hernando made a conscious decision to turn on the taping device to record statements made in the interview room when defendant and his attorney were present without providing any notice to them that they were being recorded. After Plaza stated his client would make no statements, Hernando left defendant and counsel alone in the room where their conversation would be recorded. Hernando is a law enforcement officer bound to comply with the Policy he admittedly violated. Further, in light of Hernando’s testimony he was following standard procedure, a view echoed by both Ackerson and Kret, this was not “an isolated and aberrant event” as in Ates. We therefore conclude the recording of communications between defendant and his attorney was intentional. See, e.g., Commonwealth v. Fontaine, 524 N.E.2d 75, 76-78 (Mass. 1988) (finding the recording intentional where a defense attorney met with his client in a prison cell and the booking officer, who knew the area was being recorded, failed to turn off recording device or advise defendant and his attorney they were being recorded).

B

Our next inquiry is whether the information recorded included confidential information, Noriega, supra, 764 F. Supp. at 1489, or revealed defense strategy, Sugar I, supra, 84 N.J. at 21. Although there were two statements in Sugar I that “reflect[ed] an awareness of possible defenses,” the Court concluded that no trial strategy had been revealed because neither statement “amount[ed] to a strategic decision and thus cannot be used by the State to [the] defendant’s detriment.” Sugar I, supra, 84 N.J. at 22 (emphasis added).

In this case, Plaza was prudent and measured in his discussion with defendant, even advising defendant of the possibility the interview room could be under surveillance. The record does not reflect that “official knowledge of the contents of the overheard conversation would prevent defendant’s counsel from constructing and presenting an adequate defense.” See id. at 17. Although there were statements reflecting an awareness of facts that could be relevant to the case, none of the statements by Plaza or defendant amounted to “a strategic decision.” See id. at 22. We therefore conclude the information recorded did not reveal any trial strategy.

C

The final Noriega factor addresses “whether the information obtained produced, directly or indirectly, any evidence [to be] used at trial or … used in some other way to the defendant’s substantial detriment.” Noriega, supra, 764 F. Supp. at 1489. The search warrants were obtained and executed and the charges brought all before the recorded communications. Nothing from the improperly recorded conversation was presented to the grand jury. In short, the State’s case and proofs were set before the improper recording. We are confident a remedy may be fashioned here that will adequately safeguard the rights of defendant at trial.

Thus, although we find the recording here to be an intentional act by law enforcement, no confidential defense strategy was revealed and defendant need not suffer any prejudice from the recording at trial. Therefore, the intrusion here did not rise to the level of a Sixth Amendment violation.

Even in the absence of a constitutional violation, a dismissal of charges may be appropriate when “conduct by law enforcement officials … perverts the judicial process and turns it into a prosecutorial tool.” Sugar I, supra, 84 N.J. at 14. That is not the case here, where neither the search warrants nor the indictment were based upon any information revealed in the recorded conversation. Finding no Sixth Amendment violation or any corruption of the judicial process, we conclude dismissal of the charges is not warranted.