State v. McQueen, DOCKET NO. A-4391-18T1
| Decision Date | 19 May 2020 |
| Docket Number | DOCKET NO. A-4910-18T1,DOCKET NO. A-4391-18T1 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Appellant, v. RASHEEM W. McQUEEN and MYSHIRA T. ALLEN-BREWER, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Alvarez, Suter1 and 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, ActingMiddlesex 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. Allen-Brewer (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).
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 Allen-Brewer.
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 fledagain. 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.
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);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:
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.
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.
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 Center2 are 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 fromTwitter, 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.
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.
"[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....
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