NJ Supreme Court Confirms Prosecutors Can Subpoena Inmate Phone Conversations

In State v. Mark Jackson; State v. Jamie Monroe (A-18/19-19/083286) (Decided April 1, 2020), the Supreme Court of New Jersey affirmed an Appellate Division decision holding that prosecutors may subpoena inmates’ recorded telephone conversations.

NJ Supreme Court Confirms Prosecutors Can Subpoena Inmate Phone Conversations

Facts of State v. Jackson; State v. Monroe

Defendant Mark Jackson was arrested after his mother notified the authorities that he had brought $2600 in stolen coins to her home. The Essex County Correctional facility, where Jackson was incarcerated, permits inmates to make unmonitored and unrecorded telephone calls only to legal counsel and Internal Affairs; all other calls are monitored and recorded. Inmates are informed of the recording policy both at the beginning of each phone call and through a release form, which Jackson signed. Several months after Jackson’s arrest, his attorney notified the Prosecutor’s Office that Jackson’s mother had indicated she could not testify as to who left the coins in her home. A grand jury subpoena directed to the correctional facility requested the recordings of all of Jackson’s calls to his mother’s number. Once the State received the recordings, the original indictment against Jackson was superseded to include a witness tampering count.

While being processed at a police station for pending drug and firearms offenses, defendant Jamie Monroe called a person also suspected of drug distribution. Monroe was held at the Middlesex County Department of Adult Corrections, which has a policy similar to the one described above regarding the recording of phone calls; it provides both aural and written notice of that policy. The Prosecutor’s Office served a grand jury subpoena on the facility for recordings of all calls made to the suspected dealer’s number. Upon review, an officer learned that Monroe had called that number and several other numbers to obtain help in laundering money to post bail. Monroe was charged with additional offenses, and those he called were also charged with a number of offenses. The trial court granted motions to suppress the calls in both cases.

Appellate Division’s Decision in State v. Jackson; State v. Monroe

The Appellate Division reversed. It held that the inmates had no reasonable expectation of privacy in the recorded phone calls at issue, and the Prosecutor’s Office was authorized to obtain the recordings without a search warrant, a communications data warrant, or a wiretap order.

The Appellate Division first held that the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act) and Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (Title III) did not apply. Noting that both acts “bar the interception of wire communications” without “a wiretap order or communications data warrant,” the appeals court stated that proscription “simply excludes inmate phone calls recorded in prison facilities.”

As explained by Judge Carmen Alvarez, “[s]ince the recording of such calls is not an interception within the Act or Title III’s purview, logically, sharing the information with another law enforcement agency under the authority of a grand jury subpoena is not a violation.” The court found support for that holding through analogy to the inter-agency sharing of intelligence, which is expressly authorized by both Title III and the Act. Stressing that “[t]he use made by the Prosecutor’s Office of these recordings was ‘appropriate to the proper performance of the official duties of the officer making or receiving the disclosure’” as required by both 18 U.S.C. § 2517(1) and N.J.S.A. 2A:156A-17(a), the court reasoned that even if Title III and the Act did apply here, “sharing the information inter-agency was nonetheless lawful.” The court further concluded that “[p]roviding the recordings made by the correctional facility to the Prosecutor’s Office was not a separate interception.”

The Appellate Division further held that the defendants had no constitutionally protected objectively reasonable expectation of privacy in their recorded phone calls. In reaching its decision, the appeals court determined that the correctional facilities’ interest in maintaining institutional security and public safety outweighed the inmates’ right to privacy. “[I]f an inmate knows he or she is being monitored and recorded when speaking on the phone, it is unreasonable to conclude either that the inmate retains a reasonable expectation of privacy, or that the inmate’s loss of privacy should be limited to the one law enforcement agency . . . that is recording the conversation,” Judge Alvarez wrote.

New Jersey Supreme Court’s Decision in State v. Jackson; State v. Monroe

The New Jersey Supreme Court affirmed in a one-page order. “The judgment of the Appellate Division is affirmed substantially for the reasons expressed in that court’s opinion,” the court wrote.

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