The issue presented by defendants' motion to suppress is whether a conversation between co-defendants, while incarcerated following their arrest and overheard via electronic surveillance, is admissible at their trial.
Defendants were arrested on February 5, 1976 and charged with murder. Following their transportation to the West
Orange Police Headquarters, they were placed in jail cells Nos. 3 and 5 located in the basement.
The jail contains eight cells, six located in the basement and the remaining two on the first floor. The officer in charge is positioned at a desk on the first floor. An electronic monitoring system exists to enable the officer to keep the cells secure. Comprised of a one-way intercom, the audio security system enables the officer to hear the prisoners through a receiver located at his desk. Through this monitoring he may be apprised of a possible impending security problem.
While on duty Sergeant Kelly and Detective Gilsenan heard over the monitoring system a conversation between the defendants. Their testimony as to this conversation is the subject of the motion to suppress. Defendants allege that the monitoring of their conversation was violative of their Fourth, Fifth and Sixth Amendment rights and their constitutional right of privacy.
This being a question of first impression in this State, guidance may be had from the few state courts which have been confronted with the issue presented, and from electronic surveillance cases in general.
In the initial electronic surveillance cases, premised upon Fourth Amendment grounds, the United States Supreme Court limited unreasonable searches and seizures to the physical trespass theory. Goldman v. U.S. , 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 (1942); Olmstead v. U.S. , 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928).
In Katz v. U.S. , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), however, the court abandoned this theory, overruling Goldman and Olmstead. Holding inadmissible tape recordings obtained through the placement of an electronic surveillance device on the outside of a public telephone booth where defendant was engaged in conversations, the court delineated a constitutional right of privacy. Defendant had "justifiably relied" upon his privacy by conversing in a closed telephone booth. Katz, supra at 353, 88
S. Ct. at 512. Broadening the protection afforded by the Fourth Amendment, the court said:
For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection . . . . But what he seeks to preserve as private, even in an area accessible to the public, may be ...