Where Jail Inmates Had Been Told That Their Telephone Calls Would be Monitored and Recorded, They Had No Reasonable Expectation of Privacy in Those Calls

State v. Jackson, 241 N.J. 547 (2020). In a per curiam opinion, the Supreme Court today affirmed the ruling of the Appellate Division in this case (actually, two consolidated cases), reported at 460 N.J. Super. 258 (App. Div. 2019). The Court substantially adopted the reasoning of Judge Alvarez, who wrote the panel’s opinion.

The two inmates were held in different facilities. Each facility had a written policy, which was provided to inmates, that inmate telephone calls (other than those to legal counsel or Internal Affairs) would be monitored and recorded.

For different reasons in each case, the State served grand jury subpoenas on the respective facilities, seeking recordings of certain telephone calls by these inmates. The same Law Division judge suppressed the subpoenas in both cases. The judge concluded that the subpoenas violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A;156A-1 et seq., the federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and Article I, paragraph 7 of the New Jersey Constitution, in that no warrant or separate wiretap order had been obtained. The judge also ruled that the evidence could not be used even for impeachment.

The State obtained leave to appeal and won reversal. The matter went to the Supreme Court, which today affirmed substantially on the opinion of the Appellate Division.

Relying on State v. Formino, 223 N.J. Super. 531 (App. Div. 1988), and a number of federal cases, Judge Alvarez explained that there was no intercept here, and no basis to apply the state or federal statutes in the context of regularly monitored inmate telephone calls. Nor did the inmates have a reasonable expectation of privacy. They had been told that calls would be monitored and recorded, and in any event, the State’s legitimate “interest in maintaining institutional security and public safety” would outweigh a privacy interest, if there were one.

Though recognizing it as dicta, the panel did clarify that where material is obtained contrary to the wiretap laws and is suppressed, it can still be used for impeachment purposes in certain circumstances. Judge Alvarez again cited New Jersey and federal authorities for that principle. She stated that the panel had spoken to the issue because it was “of some importance to the parties,” even though the court would ordinarily not reach that question since the Law Division’s suppression orders had been reversed.