The state constitution protects against surreptitious recording of a telephone line from within a police station of a suspect where there was no warning and he was allowed into a room alone to make a call. State v. McQueen, 2021 N.J. LEXIS 793 (Aug. 10, 2021). From the syllabus:
HELD: 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.
1. 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. (pp. 17-19)
2. The telephone is an essential instrument in carrying on personal affairs, and there is a general societal assumption 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 public phone booth. What a person seeks to preserve as private, even in an area open to the public, may be constitutionally protected, and a person does not lose the right to the privacy of a telephone call simply because he made his calls from a place where he might be seen. (pp. 19-21)
3. A police station’s “report writing room” is not an area open to the public, and legitimate security concerns must be taken into account in the setting of a stationhouse. Few would dispute that an arrestee has a lesser expectation of privacy within the confines of a police station. A police station, however, is not a constitution-free zone. Clearly, an arrestee cannot make a call from a stationhouse phone line without the authorization of the police. When permission is given, however, the State does not suggest that the police have a right to record and listen to an arrestee’s stationhouse call to his attorney. And, of course, the phone lines are not used exclusively by arrestees. No empirical evidence has been presented to support that there is a general understanding 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.” See State v. Evers, 175 N.J. 355, 369 (2003). (pp. 21-23)
4. Upon review of the cases on which the State relies, the Court finds no support for the proposition that the general public is aware that a call made by a civilian on an outgoing line can be recorded without notice, or that a call that cannot be overheard by an officer through natural means loses a reasonable expectation of privacy because of a non-consensual recording on a police line. In this case, no police officer heard through the use of the naked ear either side of the conversation. The surreptitiously recorded conversation in this case does not fall within the ambit of the so-called “plain hearing” exception to the warrant requirement. And the holding in State v. Jackson that the defendant-inmates had no reasonable expectation of privacy in their calls was premised on two critical factors: the correctional facilities’ legitimate security interests and the notice given to inmates that their calls might be recorded and monitored. See 460 N.J. Super. 258, 276 (App. Div. 2019), aff’d, 241 N.J. 547 (2020). (pp. 23-28)
5. The Court concludes that, under Article I, Paragraph 7 of the New Jersey Constitution, an arrestee has a reasonable expectation of privacy in a call made from a police station in the absence of notice that the conversation may be monitored or recorded. First, police monitoring of telephone conversations — without consent, a warrant, or other appropriate judicial authorization — empowers the government to arbitrarily peer into the most private sanctums of people’s lives in violation of the privacy protections afforded by Article I, Paragraph 7. Second, the State has provided no factual support and scant judicial authority for the notion that New Jersey’s residents have a widespread understanding that all outgoing telephone calls from a police station are recorded. Third, requiring notice of recording does not undermine and may enhance institutional security and public safety by deterring the unlawful use of the stationhouse line. 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. (pp. 28-32)
6. 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 Allen-Brewer’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. (pp. 32-33)
7. 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. (p. 33)
