State v. McQueen

248 N.J. 26

256 A.3d 966

STATE of New Jersey, Plaintiff-Appellant,

v. Rasheem W. MCQUEEN, Defendant,andMyshira T. Allen-Brewer, Defendant-Respondent.

A-11 September Term 2020

084564

Supreme Court of New Jersey.

Argued March 1, 2021

Decided August 10, 2021

David M. Liston, Assistant Prosecutor, argued the cause for appellant (Yolanda Ciccone, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs).

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the briefs).

Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).

Tess Borden argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Borden, Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).

Denise Alvarez argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Denise Alvarez, Hackensack, on the brief).

Jonathan Romberg argued the cause for amicus curiae Seton Hall University School of Law Center for Social Justice (Seton Hall University School of Law Center for Social Justice, attorneys; Jonathan Romberg, of counsel and on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

The right of privacy -- the right to be free from government officials arbitrarily prying into our personal conversations -- is one of the preeminent rights in our constitutional hierarchy. Article I, Paragraph 7 of the New Jersey Constitution provides heightened protection to telephone calls and prohibits government eavesdropping, absent a warrant or an exception to the warrant requirement. This case tests whether the right of privacy, safeguarded by our State Constitution, 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.

The police arrested Rasheem McQueen for allegedly committing certain offenses and brought him to the police station, where he gave a statement to an investigating detective. The police permitted McQueen to make a telephone call from one of the stationhouse's landlines but did not tell him his conversation would be recorded or accessible to law enforcement without his consent or a warrant. McQueen called and spoke with defendant Myshira Allen-Brewer. The next day, a detective retrieved the recording and listened to their private conversation. Based, in part, on the contents of that conversation, Allen-Brewer was charged with various crimes.

The trial court suppressed the McQueen/Allen-Brewer telephone conversation, finding that the warrantless retrieval and use of that recording violated Allen-Brewer's statutory and constitutional privacy rights. In a split decision, the Appellate Division panel upheld the suppression of the telephone conversation on Fourth Amendment grounds only, concluding that McQueen and Allen-Brewer enjoyed a reasonable expectation of privacy.¹

We affirm. The right of privacy, and particularly privacy in one's telephone conversations, is among the most valued of all rights in a civilized society. See Doe v. Poritz, 142 N.J. 1, 100, 662 A.2d 367 (1995) ; see also Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

McQueen's custodial status in the stationhouse did not strip him of all constitutional protections. The police provided McQueen and Allen-Brewer with no notice that their conversation would be recorded or monitored. Article I, Paragraph 7, which prohibits unreasonable searches and seizures, broadly protects the privacy of telephone conversations in many different settings. 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. The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed.

We remand for proceedings consistent with this opinion.

I.

A.

On August 27, 2018, at approximately 10:55 p.m., while on patrol in an unmarked vehicle, three Piscataway Township detectives observed an Oldsmobile Sierra Cutlass traveling at a high rate of speed and turn without signaling.² The detectives activated the patrol vehicle's overhead lights and siren, but the Oldsmobile continued on and ran through a stop sign until it eventually pulled over in front of 1640 Quincy Street.

One of the detectives approached the Oldsmobile's open passenger side window and "immediately recognized" the driver as someone he knew to be the registered owner of the car -- defendant Rasheem McQueen. The detective "advised [McQueen] to turn the car off[,] [t]hrow the keys out the window[,] and put his hands in the air." Instead, McQueen "put the car into gear and took off." The detectives did not give chase because of the public-safety risk and because they knew the identity of the driver.

Shortly afterwards, McQueen's grandfather called 9-1-1 to report that McQueen's car had been stolen, and McQueen told the dispatcher the same. The three detectives then went to McQueen's residence, arrested him, and transported him to the Piscataway police headquarters.

At headquarters, at approximately 12:11 a.m., Detective Carlos Alameda interviewed McQueen, who admitted that he fled the scene and falsely reported his car as stolen. McQueen also told the detective where he had parked his car.³ McQueen "insisted" on making a telephone call and was permitted to do so on a landline in the "report writing room." No one told McQueen that his 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.

McQueen made the call at around 4:00 a.m. on August 28, before he was transferred to the Middlesex County Adult Correction Center (Correction Center). According to Detective Joseph Reilly, the call was made "in Detective Alameda's presence," and "[McQueen] was very mumbled on the phone, hiding what his conversation was."

Later that day, at about 1:00 p.m., Detective Reilly responded to a report of a gun found on the lawn at 1650 Quincy Street, the home next door to the address where McQueen had been stopped the previous evening. There, on the lawn, Detective Reilly recovered a loaded .38 caliber revolver, with one spent shell in the cylinder. The serial number on the handgun was defaced.

After the recovery of the gun, Detective Reilly became "suspicious" about the call McQueen had made earlier in the morning from headquarters. Without securing a warrant or a subpoena, or consent from McQueen, Detective Reilly and Detective Sergeant Michael Coffey listened to McQueen's recorded conversation.⁴

The recording revealed that McQueen called his girlfriend, eighteen-year-old Myshira Allen-Brewer. During the conversation, McQueen told Allen-Brewer to look for his "blicky" -- apparently a slang name for a handgun -- on the side yard of a house in an area on Quincy Street. He gave her directions to the location and told her that unless she found the "blicky" first "he would be in a lot of trouble."⁵

While at the Correction Center, McQueen made 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. Additionally, inmates at the Correction Center receive a pamphlet informing them that their "calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls." In their conversations, McQueen again told Allen-Brewer to look for the "blicky." She responded that she had tried and could not find it. He told her to return to the scene and search the grass because he had thrown it "fairly far."

The Middlesex County Prosecutor's Office secured the recording of those Correction Center conversations through the issuance of a grand jury subpoena.

B.

A Middlesex County grand jury returned a multi-count indictment against McQueen and Allen-Brewer. We recite only the charges against Allen-Brewer, whose appeal is before us: second-degree conspiracy to unlawfully possess a handgun, N.J.S.A. 2C:39-5 and 2C:5-2 ; third-degree attempted hindering by attempting to suppress evidence that might aid in the apprehension or prosecution of McQueen, N.J.S.A. 2C:29-3(a)(3) and 2C:5-1 ; and fourth-degree attempted obstruction of the administration of law or a government function, N.J.S.A. 2C:29-1(a) and 2C:5-1.

Allen-Brewer and McQueen both moved to suppress their telephone conversations recorded by the Piscataway Police Department and the Correction Center. The motion judge suppressed the recorded calls, finding that the State had not complied with the dictates of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -37. The judge also relied on his written unpublished decision in State v. Jackson.⁶

The judge suppressed the calls from the Correction Center particularly because the Wiretap Act does not authorize the Prosecutor's Office to issue "a subpoena duces tecum to retrieve jail calls from a correctional facility." The judge also suppressed the call from police headquarters primarily based on his interpretation of the Wiretap Act. He determined that although McQueen had a diminished expectation of privacy in his location -- police headquarters -- he still retained an expectation of privacy in his telephone conversation, in the absence of notice that his call would be recorded. The judge stated that "[p]hone calls have always been different" and...