SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4391-18T1

 A-4910-18T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RASHEEM W. McQUEEN and

MYSHIRA T. ALLEN-BREWER,

Defendants-Respondents.

Argued telephonically February 27, 2020 –

Decided May 19, 2020

Before Judges Alvarez, Suter1and DeAlmeida

(Judge DeAlmeida dissenting). 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex County, 

Indictment No. 19-02-0302.

David Michael Liston, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for appellant (Christopher L.C. Kuberiet, Acting 

1

 Judge Suter did not participate in oral argument. She joins in the opinion with 

counsel's consent. R. 2:13-2(b).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

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Middlesex County Prosecutor, attorney; David Michael

Liston, of counsel and on the briefs).

Tamar Yael Lerer, Assistant Deputy Public Defender, 

argued the cause for respondent Myshira T. AllenBrewer (Joseph E. Krakora, Public Defender, attorney; 

Tamar Yael Lerer, of counsel on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

amicus curiae Attorney General of New Jersey (Sarah 

C. Hunt, Deputy Attorney General, of counsel and on 

the brief). 

PER CURIAM

On leave granted, the State appeals a Law Division order suppressing 

recorded phone conversations between co-defendants Rasheem McQueen and 

Myshira Allen-Brewer. One tape was made at the Piscataway Police

Department, the others at the Middlesex County Adult Correctional Center 

(Correctional Center). Relying on the suppression order, the judge dismissed 

the counts of the indictment naming Allen-Brewer. We affirm the judge's May 

16, 2019 decision as to the police station recording but reverse as to the calls 

from the Correctional Center. We reinstate the indictment counts naming AllenBrewer. 

The charges arose on August 27, 2018, when McQueen allegedly sped 

away from police officers attempting to conduct a traffic stop. He eventually 

pulled over, but as the officers left their vehicle and approached him, he fled 
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again. The officers called off the pursuit, but one of them had recognized 

McQueen. 

Shortly thereafter, McQueen's grandfather phoned the Piscataway Police 

Department to report McQueen's car had been stolen; McQueen also got on the 

line regarding the purported theft. Police arrested McQueen at his home and 

took him to headquarters for processing.

McQueen's car was promptly located, searched, and found to contain a 

quantity of oxycodone. Before being transported to the Correctional Center, 

McQueen called Allen-Brewer on the station house phone. During the call, 

McQueen lowered his voice to prevent a nearby officer from listening in. 

McQueen was not advised all telephone calls at the station are recorded. The 

tape later revealed that McQueen asked Allen-Brewer to dispose of a firearm he 

had discarded as he drove away from police during the aborted stop. 

McQueen and Allen-Brewer spoke again the day after that, this time on 

the phone at the Correctional Center where McQueen was detained. During that

conversation, Allen-Brewer told McQueen she had not found the gun. He 

responded that he tossed it into a yard with a white picket fence. Acting on a 

homeowner's complaint, police recovered a loaded handgun, serial numbers 

removed, in a yard on the street where McQueen had directed Allen-Brewer.
4

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On August 29, Allen-Brewer again told McQueen, while on the 

Correctional Center phone, that she could not find the gun. McQueen said he 

threw it fairly far into the grass. 

At the beginning of inmate Correctional Center calls, an automated

message is played stating all calls are recorded and monitored. Additionally,

upon arrival every inmate is given a pamphlet explaining Correctional Center 

telephone calls are recorded and monitored, with the exception of those made to 

the Internal Affairs Unit and calls to attorneys. The guidelines also advise 

inmates that abuse of phone privileges "will result in disciplinary action, and 

can lead to prosecution." 

Through service of a grand jury subpoena, the Prosecutor's Office

obtained McQueen's taped calls from the police station and the Correctional 

Center. They were presented, along with other evidence, to the grand jury, 

which indicted McQueen as follows: second-degree eluding, N.J.S.A. 2C:29-

2(b) (count one); second-degree unlawful possession of a handgun, N.J.S.A. 

2C:39-5(b)(1) (count two); fourth-degree possession of a defaced firearm, 

N.J.S.A. 2C:39-3(d) (count three); fourth-degree unlawful possession of 

ammunition, N.J.S.A. 2C:58-3.3(b) (count four); third-degree hindering his own 

apprehension (by discarding a handgun), N.J.S.A. 2C:29-3(b)(1) (count five); 
5

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third-degree hindering his own apprehension (by hiding a motor vehicle) (count 

six); third-degree hindering (by changing clothes) (count seven); fourth-degree 

false reports, N.J.S.A. 2C:28-4(b)(1) (count eight); third-degree possession of a 

controlled dangerous substance (oxycodone), N.J.S.A. 2C:35-10(a)(1) (count 

nine); second-degree conspiracy to unlawfully possess a handgun, N.J.S.A. 

2C:39-5 and 2C:5-2 (count ten); and third-degree attempted hindering (by 

conspiring with Allen-Brewer for her to locate and hide a handgun), N.J.S.A. 

2C:5-1 and 2C:29-3(b)(1) (count eleven). 

Allen-Brewer was charged in count eleven with third-degree attempted 

hindering (by aiding McQueen in hindering by secreting the handgun), N.J.S.A. 

2C:5-1 and 2C:29-3(a)(3) (count twelve); and fourth-degree attempted 

obstruction, N.J.S.A. 2C:5-1 and 2C:29-1(a) (count thirteen).

When he granted the motion to suppress, the Law Division judge found 

the station house recording violated New Jersey's Wiretapping and Electronic 

Surveillance Control Act (Act), N.J.S.A. 2A:156A-1 to -37, and the Fourth 

Amendment. He reached the same conclusion regarding the tapes made at the 

Correctional Center. Accordingly, he granted the motions to suppress, and later 

granted the motion to dismiss Allen-Brewer's charges.

On appeal, the State raises the following points:
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POINT I

DEFENDANT'S RECORDED TELEPHONE CALLS 

ARE NOT INTERCEPTS FOR PURPOSES OF THE 

WIRETAP STATUTE, AND DEFENDANT HAD NO 

REASONABLE EXPECTATION OF PRIVACY IN 

CALLS THAT HE KNEW OR SHOULD HAVE 

KNOWN MAY BE RECORDED BY LAW 

ENFORCEMENT.

POINT II

THE ORDER DISMISSING ALLEN-BREWER 

FROM THE INDICTMENT MUST BE REVERSED 

BECAUSE IT WAS BASED ON THE TRIAL 

COURT'S ERRONEOUS SUPPRESSION OF 

MCQUEEN'S RECORDED TELEPHONE CALLS.

We divide our discussion into two parts. First, we address the phone calls 

recorded at the Correctional Center, and secondly, the phone call recorded at the 

police station.

I.

The facts are undisputed. As always, we address questions of law de novo. 

State v. Pimentel, 461 N.J. Super. 468, 480 (App. Div. 2019). We conclude that 

neither the Wiretap Act nor Title 3 of the Omnibus Crime Control and Safe 

Streets Act of 1968, 18 U.S.C. §§ 2510-2523 (2018), bars the interception of the 

calls McQueen made to Allen-Brewer at the Correctional Center, their

recording, or the production of the recordings to the Prosecutor's Office based 

upon issuance of a grand jury subpoena. 
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As we have previously said, recordings made at correctional facilities are 

lawful, and are lawfully made available to a prosecuting agency or another law 

enforcement agency via a grand jury subpoena. This includes conversations 

which touch upon, or which themselves constitute, crimes. See State v. Jackson, 

460 N.J. Super. 258 (App. Div. 2019), aff'd, ___ N.J. ___ (2020) (slip op. at 6).

Like in Jackson, inmates at the Correctional Center2are advised by way 

of an inmate handbook upon their arrival at the jail that telephone calls are 

recorded, monitored, and may subject a detainee to discipline or even 

prosecution. At the beginning of each call, an automated message is played 

reiterating that the call is monitored. Nothing in the record would cause us to 

doubt that the recording would have been played at the beginning of each call 

McQueen made to Allen-Brewer, or vice versa. 

A wire communication within the scope of the Act requires an aural 

transfer, or the transfer of the human voice, made at a time the speaker 

"exhibit[s] an expectation that such communication is not subject to interception 

under circumstances justifying such expectation . . . ." In re Application of State 

for Commc'ns Data Warrants to Obtain the Contents of Stored Commc'ns from 

2

 One of the defendants in Jackson was housed at the same correctional facility 

as McQueen. See 460 N.J. Super. at 266 n.2.
8

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Twitter, Inc., 448 N.J. Super. 471, 475 (App. Div. 2017) (quoting N.J.S.A. 

2A:156A-2(b)). Callers at the Correctional Center know they are being 

overheard and recorded. 

Since State v. Fornino, 223 N.J. Super. 531 (App. Div. 1988), calls made 

by inmates from prison or from correctional facilities have been exempted from 

the Act. Since we hold, pursuant to Fornino and the cases following, that the

calls from the Correctional Center are available to the State in the prosecution 

of these co-defendants, we reverse this portion of the suppression order. The 

counts of the indictment applicable to Allen-Brewer are therefore reinstated. 

II.

The phone call McQueen placed at the police station presents a different 

quandary. McQueen had no notice that the conversation would be recorded—

in fact, he was described as deliberately lowering his voice so an officer, sitting

within earshot, would not overhear. His expectation of privacy was reasonable 

in the absence of any warning by anyone, orally or in writing, regarding the 

recording of the call. We do not reach the question of whether the recording of 

the call would violate the Wiretap Act because we find the Prosecutor's seizure 

of the station house recording without a warrant violated defendants' right to be 

free of unreasonable searches and seizures. 
9

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"[T]he Fourth Amendment protects people, not places." State v. Ford, 278 

N.J. Super. 351, 356 (App. Div. 1995) (alteration in original) (quoting Segura 

v. United States, 468 U.S. 796, 810 (1984)). A critical interest protected by the 

Fourth Amendment is "the security of one's privacy against arbitrary intrusion 

by the police . . . ." State v. Novembrino, 105 N.J. 95, 135 (1987) (quoting Wolf 

v. Colorado, 338 U.S. 25, 27 (1949)). The Fourth Amendment analysis is twofold: first, whether the defendant has manifested a subjective expectation of 

privacy and, second, whether society is willing to recognize that expectation as 

reasonable. State v. Hinton, 216 N.J. 211, 230 (2013) (quoting California v. 

Ciraolo, 476 U.S. 207, 211 (1986)). New Jersey's constitutional standard does 

not require a subjective expectation of privacy, only that it be reasonable. Id. at 

236. 

The Supreme Court's discussion of Katz3in State v. Stott, 171 N.J. 343 

(2002), is enlightening. In Katz, the government sought to introduce recordings 

3

 The 9th Circuit found in United States v. Koyomejian that the Court's holding 

in Katz was superseded by the Electronic Communications Privacy Act of 1986 

and its predecessor, the Omnibus Crime Control and Safe Streets Act of 1968. 

946 F.2d 1450, 1455 (9th Cir. 1991) ("Congress's conclusion that the vague 

standards found in Berger and Katz offer inadequate protection for individual 

privacy is manifest in its enactment of statutory requirements that go 

substantially beyond the minimal constitutional constraints in those two 

cases.").
10 A-4391-18T1

"of the petitioner's end of telephone conversations, overheard by F.B.I. agents 

who had attached an electronic listening and recording device to the outside of 

the public telephone booth from which he had placed his calls." 389 U.S. at 

348. The Court observed that a search implicates constitutional principles 

whenever a citizen holds a legitimate expectation of privacy in the invaded 

place. Stott, 173 N.J. at 354. While using a phone, even in a public booth, a 

citizen has a reasonable and constitutionally protected privacy expectation in the 

public place. "No less than an individual in a business office, in a friend's 

apartment, or in a taxi cab, a person in a telephone booth may rely upon the 

protection of the Fourth Amendment." Katz, 389 U.S. at 352. The Court, in 

dealing with an alleged police intrusion of a psychiatric patient's room, found 

helpful Justice Harlan's comments that "certain spaces otherwise 'accessible to 

the public' could, at times, be considered a 'temporar[y] private place' in which 

its 'momentary occupants' expectation of freedom from intrusion' would trigger 

constitutional protections." Id. at 354. Although arrested, and awaiting 

transport in a police station, McQueen's call was entitled to Fourth Amendment 

protection.

Additionally, the State must ordinarily comply with the Fourth 

Amendment's warrant requirement, considered "an essential check on arbitrary 
11 A-4391-18T1

government intrusions into the most private sanctums of people's lives." State 

v. Manning, 240 N.J. 308, 328 (2020). Warrantless searches and seizures are 

"presumptively unreasonable [and] the State bears the burden of demonstrating 

by a preponderance of the evidence that an exception to the warrant requirement 

applies." Id. at 329.

Through his conduct of calling while attempting to shield the conversation 

from a nearby officer, McQueen demonstrated at least a subjective expectation 

of privacy entitled to the additional protection of the Fourth Amendment. His

expectation of privacy should be one "that society is prepared to recognize as 

reasonable." State v. Evans, 175 N.J. 355, 369 (2003) (quoting Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). 

A police station is a different institutional environment than a prison or 

correctional center. It is not an agency such as a jail or prison, whose sole 

purpose is to house those either awaiting disposition of criminal charges, or who 

have already been convicted, and are awaiting or serving sentences.

Ordinary citizens enter police stations for a variety of reasons—not just 

because they have been arrested. Examples include applicants for gun permits,

victims of crime and their friends and families, and families and friends of 

arrestees. All would reasonably assume in the absence of notice to the contrary, 
12 A-4391-18T1

that use of the police station phone is as private as if on their own phone, and 

certainly not taped. The record does not establish a reason to distinguish 

between McQueen's use of the phone and the use by a civilian.4 

McQueen was under arrest in a police station, but in the absence of notice, 

he had no reason to doubt his call was as private and secure as if he was using a 

phone in a friend's apartment. See In re State Police Litigation, 888 F. Supp. 

1235, 1256 (D. Conn. 1995) (holding that, under the Fourth Amendment, in the 

absence of proof of notice, "surreptitious recording of unprivileged but private 

calls, if proven, involves an invasion of privacy that far outweighs" any 

justifications for recording outgoing phone calls from police stations). AllenBrewer, at the other end of the line, was similarly situated and she had every 

reason to assume her conversation was private and secure. The codefendants'

subjective expectation of privacy is also objectively reasonable, and entitled to

constitutional protection under these facts. 

Additionally, as a matter of law, the State has not borne its burden of 

demonstrating, by a preponderance of the evidence "that an exception to the 

warrant requirement applies." See Manning, 240 N.J. at 329. McQueen was an 

4

 Although McQueen was likely in an area not accessible to a civilian visitor, 

the record is silent on the point.
13 A-4391-18T1

arrestee who, once processed and simply waiting at the station, is sheltered by 

the presumption of innocence and, in the absence of some fact not present in this 

record, the right to be free under the Fourth Amendment from unreasonable 

searches and seizures.

In our colleague's dissent, he relies upon the "general public['s]"

knowledge that phone calls from a police station are routinely recorded, and that 

therefore, no reasonable expectation of privacy exists. We do not agree that 

such knowledge, given this record, should be imputed either to defendant, who 

tried to prevent his conversation from being overheard, to Allen-Brewer, whose 

understanding of the circumstances of the call can only be guessed at, or to the 

general public.

We also reject the notion that had we reached the wiretap issue, federal 

law would support the ready availability to law enforcement of the station house 

tape in the absence of notice. See Amati v. City of Woodstock, 176 F.3d 952, 

955 (7th Cir. 1999) (refusing to interpret the "ordinary course of business" 

exception to the federal wiretap statute to cover investigative recordings of 

telephone conversations from police stations); In re State Police Litigation, 888 

F. Supp. 1235, 1265-66 (D. Conn. 1995) (rejecting the state's provided law 

enforcement purposes for recording all outgoing phone calls from police 
14 A-4391-18T1

barracks; holding that any analysis of the federal wiretap statute should not be 

limited to the purpose of the recording, "but to the character of the conversation 

intercepted"); Bohach v. City of Reno, 932 F. Supp. 1232, 1235 (D. Nev. 1996) 

(citations omitted) ("Finally, and more generally, we note that police stations 

often record all outgoing and incoming phone calls, 'for a variety of reasons 

. . . .' This may or may not violate the wiretapping statutes, depending upon how 

it is done."); George v. Carusone, 849 F. Supp. 159, 164 (D. Conn. 1994) 

(recognizing the implied consent exception to the wiretap statute applied to the 

plaintiff police officers who knew all incoming and outgoing phone calls at the 

police station were recorded but not to the arrestee who used the phone while 

detained).

Thus, the "seizure" of the conversation was a violation of McQueen and 

Allen-Brewer's right to be free of unlawful searches and seizures. We affirm 

the judge's suppression of the recording made at the police station.

Reversed in part; affirmed in part; and the dismissed counts against AllenBrewer are reinstated.
DeALMEIDA, J.A.D., dissenting in part.

I join Part I of the majority's opinion regarding the admissibility of the 

recordings of defendants' telephone calls while McQueen was incarcerated at 

the county jail. I agree that under our holding in State v. Jackson, 460 N.J. 

Super. 258 (App. Div. 2019), aff'd, __ N.J. __ (2020), there is no statutory or 

constitutional bar to admission of the county jail recordings. I also agree that in 

light of the admissibility of the county jail recordings, there is sufficient 

evidence to support the indictment against Allen-Brewer, warranting reversal of 

the trial court order dismissing the indictment.

I respectfully disagree, however, with Part II of the majority opinion 

concluding the recording of defendants' telephone call while McQueen was in 

custody at the police station violated the Fourth Amendment and Article I, 

Paragraph 7 of the New Jersey Constitution. The majority holds that McQueen's 

expectation of privacy when making the police station call was reasonable 

because he was not given a written or oral warning the call would be recorded. 

I respectfully disagree with the proposition that the absence of a written or oral 

warning is dispositive of the question of the reasonableness of McQueen's 

expectation of privacy. After considering the totality of the circumstances, I 

conclude McQueen, under arrest, having recently confessed to criminal activity, 
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and aware he was about to be transported to the county jail, could not reasonably 

have expected his call to an alleged co-conspirator on a police department 

telephone with a detective present in the room would be private. I reach this 

conclusion despite the lack of oral or written notice to McQueen that the 

telephones at the police station were recorded, which I consider to be one factor 

in a multi-factor analysis.

The following facts are not disputed: McQueen was under arrest when he 

was transported to the police station. While at the station, he made incriminating 

admissions to investigating officers with respect to eluding police and falsely 

reporting his car stolen. After McQueen was told he was about to be transported 

to the county jail, he asked to use a landline telephone in the police station. The 

telephone McQueen used is in a room in which officers write reports. According 

to the State, the room is not open to the public. A detective was present in the 

room during at least a portion of McQueen's call, but could not hear what he 

said. During the call, McQueen mumbled to hide the contents of his 

conversation. McQueen's call, like all calls made on station house telephones, 

was recorded. The State concedes McQueen was not provided oral or written 

notice the police station telephones were recorded.
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"In determining the reasonableness of an expectation of privacy . . . , we 

start from the premise that '[e]xpectations of privacy are established by general 

social norms.'" State v. Hempele, 120 N.J. 182, 200 (1990) (alteration in 

original) (quoting Robbins v. California, 453 U.S. 420, 428 (1981) (plurality 

opinion), overruled on other grounds, United States v. Ross, 456 U.S. 798 

(1982)). As I see it, McQueen's expectation that his conversation on a police 

station telephone was private was not "one that society is prepared to recognize 

as reasonable." State v. Evers, 175 N.J. 355, 369 (2003) (quoting Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

I agree with Judge Posner's observation that

[i]t is routine, standard, hence "ordinary" for all calls to 

and from the police to be recorded. Such calls may 

constitute vital evidence or leads to evidence, and 

monitoring them is also necessary for evaluating the 

speed and adequacy of the response of the police to tips, 

complaints, and calls for emergency assistance.

[Amati v. City of Woodstock, 176 F.3d 952, 954 (7th 

Cir. 1999).]

This "routine and almost universal" practice is "well known in the industry and 

in the general public . . . ." Adams v. City of Battle Creek, 250 F.3d 980, 984-

85 (6th Cir. 2001); see also Walden v. City of Providence, 596 F.3d 38, 54-55 

(1st Cir. 2010). Given the general knowledge that police department telephones 
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are recorded, notice is implied. "[W]hat is ordinary is apt to be known; it 

imports implicit notice." Amati, 176 F.3d at 955.

In addition, I respectfully disagree with the premise, upon which the 

majority bases its holding, that members of the public, not under arrest but 

present in a police station, to whom the majority reasons McQueen should be 

treated equally, would reasonably assume in the absence of notice to the 

contrary, that use of the station house phone is as private as if using their own 

phone. As I see it, the opposite is true. It would be unreasonable for a member 

of the public who happens to be present at a police station and who elects to use 

the telephone of a law enforcement agency to expect that their call would be 

private. In the hypothetical posed by the majority, the caller has voluntarily 

decided to use a law enforcement asset, which is routinely recording calls for a 

variety of legitimate purposes associated with the agency's ordinary business, to 

make a personal call. In my view, society is not prepared to accept that these 

circumstances are the equivalent of a person using their own phone. Our 

constitutional privacy protections are designed to prevent police agencies from 

intruding into protected realms of personal behavior. Surely, a person who 

decides to use a police station's telephone must reasonably expect that they have 
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altered the privacy protection equation and voluntarily subjected their call to 

potential routine surveillance.

Moreover, McQueen was not a member of the public who happened to be 

in the police station and in need of a telephone to make a personal call and should 

not necessarily be treated as if he were. He was under arrest for crimes to which 

he confessed, about to be transported to the county jail, and in a non-public room 

to which detectives had ready assess or were present. See State v. Legette, 227 

N.J. 460, 469 (2017) (noting that "the privacy rights of an individual who is 

placed under lawful arrest are diminished") (quoting State v. Bruzzese, 94 N.J. 

210, 232 (1983)). McQueen did not use the police station's telephone to call his 

attorney, which the State concedes would have been a protected communication, 

or to contact a family member. He used the police department's telephone to 

call an alleged co-conspirator to urge her to remove evidence of his criminal 

acts. In my view, society is not prepared to accept McQueen's professed 

expectation that this call was private, even in the absence of oral or written 

notice that the police station telephones were routinely recorded. See Siripongs 

v. Calderon, 35 F.3d 1308, 1319-20 (9th Cir. 1994) (holding no reasonable 

expectation of privacy where police surreptitiously recorded defendant's 

telephone call while defendant was in custody at police station); United States 
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v. Correa, 154 F. Supp. 2d 117, 123 (D. Mass. 2001) ("The defendant had no 

reasonable expectation of privacy in the phone call he made from the police 

station, while under the visible watch of a police officer."). 1

Nor do I view McQueen's circumstances as the equivalent of an 

involuntarily committed patient at a psychiatric hospital, who has a privacy 

interest in portions of the hospital room he occupied for a long period of time. 

State v. Stott, 171 N.J. 343, 355 (2002) (noting defendant's "hospital room is 

more akin to one's home than to one's car or office. It is a place to shower, dress, 

rest, and sleep."). An arrestee's temporary holding, while awaiting transport to 

jail, in a room used by police officers to write reports is dissimilar to a patient's 

long-duration stay in a hospital room which "had many of the attributes of a 

private living area" which "had served as such a place throughout [the patient's] 

occupancy." Id. at 356. I, therefore, respectfully disagree with the majority's 

reliance on that precedent. Similarly, in my view, a non-public room in a police 

1

 I question whether oral or written notice to McQueen at the police station 

would have made a difference here. A few hours after the police station call, 

McQueen was in the county jail where he was provided with written notice that 

telephone calls were recorded, as well as a verbal reminder of recording at the 

start of each call. Yet, he made a series of calls on the jail's recorded line further 

implicating himself and Allen-Brewer in criminal activity.
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station is not like a public phone booth from which a person can reasonably 

expect to make a private call. See Katz, 389 U.S. 347.

Allen-Brewer also had no reasonable expectation of privacy in the police 

station telephone call. During the call, McQueen informed Allen-Brewer he was 

"locked up." In my view, the unequivocal import of that statement is that 

McQueen was in the custody of law enforcement personnel, either at a police 

station or county jail. Allen-Brewer could not reasonably have expected that 

her conversation with McQueen in such circumstances would be private.

In addition, even if Allen-Brewer was not aware McQueen was in police 

custody, his voluntary use of the police station phone based on his unreasonable 

expectation of privacy negated any privacy interest she may have had in their 

conversation. When "one party makes [a] conversation available to others, such 

as through the use of a speaker phone or by permitting someone else to hear, 

. . . the privacy interest does not remain the same." State v. Hunt, 91 N.J. 338, 

346 (1982). "There is no constitutional protection for misplaced confidence or 

bad judgment when committing a crime." Evers, 175 N.J. at 370. Allen-Brewer 

could not reasonably rely on McQueen protecting the confidentiality of the 

contents of their call on the police station telephone.
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Because the majority concluded the recording of defendants' conversation 

on the police station telephone violated constitutional provisions protecting 

privacy, it did not reach the question of whether the recording violated the New 

Jersey Wiretapping and Electronic Surveillance Control Act (the Wiretap Act), 

N.J.S.A. 2A:156A-1 to -37, or Title III of the Federal Omnibus Crime Control 

and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. My review of these 

provisions and the legal precedents interpreting them reveal no statutory bar to 

admission of the recording of the police station call.

The two statutes prohibit the interception of wire communications, 

including telephone calls, as well as the disclosure or use of the contents of any 

intercepted wire communication. N.J.S.A. 2A:156A-3, -8; 18 U.S.C. §§ 2511, 

2516, 2517; see State v. Worthy, 273 N.J. Super. 147, 150 (App. Div. 1994) 

(acknowledging it is well-established that telephone conversations are wire 

communications), aff'd, 141 N.J. 368 (1995). Under both statutes, "'[i]ntercept' 

means the aural or other acquisition of the contents of any wire, electronic or 

oral communication through the use of any electronic, mechanical, or other 

device." N.J.S.A. 2A:156A-2(c); 18 U.S.C. § 2510(4). "'[E]lectronic, 

mechanical, or other device' means any device or apparatus . . . that can be used 
9

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to intercept a wire, electronic or oral communication . . . ." N.J.S.A. 2A:156A2(d); accord 18 U.S.C. § 2510(5).

The statutes, however, exclude from the definition of "electronic, 

mechanical, or other device" "[a]ny telephone or telegraph instrument, 

equipment or facility, or any component thereof . . . being used . . . by an 

investigative or law enforcement officer in the ordinary course of his duties 

. . . ." N.J.S.A. 2A:156A-2(d)(1); 18 U.S.C. § 2510(5)(a)(ii). This exception, 

known as the law-enforcement exception, "appl[ies] to telephone equipment 

used by law enforcement officers in the ordinary course of their duties, 

regardless of whether the monitoring on a particular occasion is random or is 

done by an officer who regularly performs that duty." State v. Fornino, 223 N.J. 

Super. 531, 545 (App. Div. 1988). Because an interception occurs only when 

an intercepting device is used, the use of an excluded device is not an 

interception at all under the statutes. Id. at 544-45.

Our courts have held that the routine recording of inmate conversations 

on telephones in county jails are not interceptions under either the Wiretap Act 

or Title III. Jackson, 460 N.J. Super. at 273. We have not, however, addressed 

the question of whether recorded conversations on a police station telephone by 

a detainee in police custody fall within the exception in the two statutes. Federal 
10 A-4391-18T1

precedents, to which we look for guidance when interpreting the Wiretap Act, 

In re Application of State for Commc'ns Data Warrants, 448 N.J. Super. 471, 

480 (App. Div. 2017), conclude the routine recording of police station telephone 

conversations fits within the law-enforcement exception. See Walden, 596 F.3d 

at 54-55; Adams, 250 F.3d at 984-85; Amati, 176 F.3d at 954.

The plain language of the statutes unequivocally exempt the recording at 

issue here. It is undisputed that all of the telephone calls to and from the police 

station are recorded as part of the ordinary duties of an officer of the police 

department, an investigative and law enforcement agency. The Wiretap Act and 

Title III are not applicable to the recording of defendants' conversation on the 

police station telephone.

In addition, because the recording of the police station telephone is not an 

interception under the Wiretap Act or Title III, neither statute restricts the police 

department's authority to disclose the contents of the recording to the county 

prosecutor, as was done here. See United States v. Lewis, 406 F.3d 11, 19-20 

(1st Cir. 2005) (finding, because recordings of jail calls are not interceptions, 

Title III's restrictions on the use of intercepted communications does not apply).

Even if the statutes applied to the recording or sharing of the recording of 

the call,
11 A-4391-18T1

[a]ny investigative or law enforcement officer or other 

person who, by any means authorized by this act, has 

obtained knowledge of the contents of any wire, 

electronic or oral communication, or evidence derived 

therefrom, may disclose or use such contents or 

evidence to investigative or law enforcement officers of 

this or another state, or any of its political subdivisions, 

. . . to the extent that such disclosure or use is 

appropriate to the proper performance of the official 

duties of the officer making or receiving the disclosure.

[N.J.S.A. 2A:156A-17(a); accord 18 U.S.C. § 2517 

(1).]

Defendants, therefore, have not raised any cogent argument that the recording, 

production, or use of their call on the police station telephone was unlawful.

For these reasons, I respectfully dissent from Part II of the majority 

opinion and would reverse the trial court order to the extent it suppresses the 

recording of defendants' telephone conversation on the police station telephone.