Police can’t secretly record phone calls, N.J.’s top court rules in win for privacy advocates

Law enforcement in New Jersey cannot secretly record telephone calls made in police stations or use any information they hear in such calls because surreptitious recordings violate constitutionally protected privacy rights, the New Jersey Supreme Court decreed in a ruling issued Tuesday.

In writing the unanimous decision, Justice Barry T. Albin said a police station “is not a constitution-free zone.”

“The warrantless and surreptitious monitoring or recording of calls of an arrestee who is presumed innocent does not comport with the values of privacy that are prized in our free society,” the ruling reads.

The decision comes three years after police in Piscataway tried to stop motorist Rasheem McQueen, who fled but was later arrested at his home. At the police station, McQueen called girlfriend Myshira Allen-Brewer and asked her to look for “a blicky” — slang for a handgun — that he’d allegedly tossed as he drove. He repeated that request in a second call to Allen-Brewer from jail.

The Middlesex County Prosecutor’s Office later used both recordings to secure a grand jury indictment on weapons and related offenses against the couple.

But Allen-Brewer challenged her indictment, saying neither she nor McQueen knew their conversation was being recorded at the police station. And while the Middlesex County Adult Correction Center alerts inmates in several ways that calls are monitored and recorded, Allen-Brewer contended that call couldn’t be used against her either, because it was the “fruit” of the unlawfully recorded police station call. McQueen did not participate in the appeal.

A  judge agreed and subsequently suppressed both phone conversations as evidence and overturned Allen-Brewer’s indictment. But prosecutors appealed, and an appeals court reinstated her charges largely because the jailhouse call was made on a clearly designated recorded line.

Tuesday’s ruling affirmed the appellate decision, with Justice Barry Albin writing that the key issue was whether people who use a phone at a police station or prison know they’re being recorded. The Piscataway police station had no signs posted nor told callers that phone lines were recorded.

“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,” Albin wrote.

Attorney Denise Alvarez, who filed an amicus brief in the case on behalf of the Association of Criminal Defense Lawyers of New Jersey, applauded the ruling.

“This is a privacy win,” Alvarez said. “As Justice Albin put it, today’s decision reaffirms our constitutional ‘right to be free from government officials arbitrarily prying into our personal conversations.’ A person does not lose that right to privacy simply because they are arrested and in a police station — or called by someone from a police station.”