In State v. Rasheem W. McQueen (A-11-20/084564) (Decided August 10, 2021), the Supreme Court of New Jersey held that the right of privacy extends to an arrestee’s call on a police line from the stationhouse when neither party to the call is aware that the police are recording their conversation. Accordingly, it upheld the suppression of the recording of the stationhouse conversation.
Facts of State v. McQueen
Rasheem McQueen was arrested after driving off when Piscataway police officers attempted to stop him for traffic violations. At police headquarters, McQueen was permitted to make a call on a landline in the “report writing room.” No one told him the call would be recorded — as were all outgoing calls from headquarters. No sign was posted warning that all calls were recorded. No one stood over McQueen to listen to the conversation, and he “mumbled on the phone, hiding what his conversation was.”
Later that day, a detective recovered a gun found outside the home near where McQueen had been stopped and became “suspicious” about the call McQueen had made from headquarters. Without securing a warrant or a subpoena, or consent from McQueen, detectives listened to McQueen’s recorded conversation. The recording revealed that McQueen called Myshira Allen-Brewer and told her to look for his “blicky” — apparently a slang name for a handgun — near where the gun was found.
McQueen was transferred to the Middlesex County Adult Correction Center (Correction Center), from where he made further telephone calls to Allen-Brewer on a clearly designated recorded line. During telephone calls placed from the Correction Center, an automated message advises the parties that their conversation is being recorded, and inmates receive written notification of the warning as well. In their conversations, McQueen again told Allen-Brewer to look for the “blicky.” A recording of those Correction Center conversations was secured through a grand jury subpoena.
Both McQueen and Allen-Brewer were indicted on multiple counts, and both moved to suppress their telephone conversations recorded by the Piscataway Police Department and the Correction Center. The motion judge suppressed the recorded calls and dismissed the indictment against Allen-Brewer.
The Appellate Division reversed the suppression of the Correction Center calls and reinstated the charges against Allen-Brewer. The panel, however, split on the legality of the seizure of the police station call, with the majority affirming the suppression of that call.
NJ Supreme Court’s Decision in State v. McQueen
The Supreme Court of New Jersey unanimously affirmed. “We hold that 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,” Justice Barry Albin wrote. “The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed.”
In reaching its decision, the court emphasized that right of privacy, and particularly privacy in one’s telephone conversations, is among the most valued of all rights in a civilized society. It further noted that Article I, Paragraph 7 of the New Jersey Constitution broadly protects the privacy of telephone conversations in many different settings.
The New Jersey Supreme Court went on to find that 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. In support, the court first found that 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, it cited that the State 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, the court determined that 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 court found that the right to notice of monitoring or recording accords with basic notions of fairness and decency. Fifth, the court noted that the fruits of an unlawful search can’t provide an after-the-fact justification for the search. Sixth, and finally, the court determined that McQueen and Allen-Brewer had an expectation of privacy in their conversation that “society is prepared to recognize as reasonable.”
Because the New Jersey Supreme Court found that McQueen and Allen-Brewer enjoyed a reasonable expectation of privacy in the police station call, 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,” Justice Albin wrote. “Therefore, the McQueen/Allen- Brewer stationhouse conversation must be suppressed.”
The New Jersey Supreme Court further clarified that police departments that record or monitor outgoing calls of arrestees must give them reasonable notice of that practice. According to the court, 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. The court also noted that forms or signs must take account of language differences, and attorney conversations may not be monitored.