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State v. Jackson

Superior Court of New Jersey, Appellate Division

July 19, 2019

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
MARK JACKSON, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
JAMIE MONROE, KIMBERLEY MORGENBESSER, ELIZABETH FUSCO-BRYANT, LARRY EMBRY, and KELLY EMBRY, Defendants-Respondents.

          Argued June 5, 2019

          On appeal from interlocutory orders of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 18-04-0555 and 18-05-0834.

          David Michael Liston, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; David Michael Liston, and Susan Lynn Berkow, Special Assistant Prosecutor, of counsel and on the briefs).

          Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the briefs).

          Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).

          The American Civil Liberties Union of New Jersey Foundation, attorney for amicus curiae The American Civil Liberties Union of New Jersey (Liza F. Weisberg, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief).

          Association of Criminal Defense Lawyers of New Jersey, attorney for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Sharon Bittner Kean, on the brief).

          Hyland Levin Shapiro LLP, attorneys for amicus curiae The National Association of Criminal Defense Lawyers (Daniella Gordon, on the brief).

          Before Judges Alvarez, Reisner, and Mawla.

          OPINION

          ALVAREZ, P.J.A.D.

         On leave granted, the Middlesex County Prosecutor's Office appeals from orders suppressing the content of inmate telephone calls, pivotal in two unrelated criminal matters, recorded by the Essex County Correctional Facility[1] and the Middlesex County Department of Adult Corrections.[2] The State served grand jury subpoenas to obtain the recordings. We consolidate the matters for decision and reverse. We hold that the inmates had no reasonable expectation of privacy in the recorded phone calls at issue here, and the Prosecutor's Office was authorized to obtain the recordings without a search warrant, a communications data warrant, or a wiretap order.

         JAIL POLICY TOWARDS INMATE PHONE CALLS

         The Essex County Correctional Facility permits inmates to make unmonitored and unrecorded telephone calls only to legal counsel and Internal Affairs; all others are monitored and recorded. Inmates are informed at the beginning of each phone call that the call may be recorded or monitored. In addition, the Inmate Telephone ID Number Release Form provides in relevant part: "I understand and agree that telephone calls are subject to monitoring, recording, and may be intercepted or divulged." Defendant Mark Jackson signed that form.

         Inmates at the Middlesex County Department of Adult Corrections are provided with a pamphlet titled "Correction Center Inmate Guidelines" stating: "[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls." The Guidelines warn that "[a]ny abuse of the telephone . . . will result in disciplinary action, and can lead to prosecution." At the beginning of each monitored call, the inmate hears: "[t]his call may be recorded or monitored."

         MARK JACKSON

         Jackson was charged in a superseding indictment with third-degree receiving stolen property, N.J.S.A. 2C:20-7, and third-degree witness tampering, N.J.S.A. 2C:28-5(a). The original offense arose from defendant's alleged possession of approximately $2600 in change stolen from a laundromat. Jackson's mother notified the authorities about the coins, which Jackson brought to her apartment, but asked that she not be revealed as the source of the information. Some months after Jackson's arrest, his attorney advised the Prosecutor's Office Jackson's mother had written a letter indicating that she could not testify as to who left the coins in her home because she "did not witness that[, ]" and in any event, "[Jackson] was not even in town."

         The grand jury subpoena directed to the Essex County facility requested the recordings of all of Jackson's calls to his mother's number. Once the State received the recordings, the original indictment was superseded to include the witness tampering count.

         After hearing argument, the Law Division judge orally granted Jackson's motion to suppress the evidence obtained through the grand jury subpoena. On July 16, 2018, he issued a written decision and order granting the motion, and dismissing the witness tampering charge. The judge also ruled the calls could not be used to impeach witnesses.

         JAMIE MONROE, KIMBERLEY MORGENBESSER, ELIZABETH FUSCO-BRYANT, LARRY EMBRY, and KELLY EMBRY

         While being processed at a police station for pending drug and firearms offenses, defendant Jamie Monroe called a person also suspected of involvement in drug distribution. The Prosecutor's Office thereafter served a grand jury subpoena on the Middlesex County facility for the production of recordings of all calls made to the suspected drug dealer's number. Upon review, an investigating officer learned that Monroe had called that number, as well as several others, to obtain assistance in laundering money to post bail. These persons, identified from the calls, included Kimberly Morgenbesser, defendant's girlfriend; Larry Embry, a bail bond agent; Kelly Embry, another officer in the bail bond company; and Elizabeth Fusco-Bryant, Morgenbesser's aunt. During the conversations, Monroe instructed the other defendants on the mechanics of posting money for bail so as to survive a "bail source hearing."

         Following the production of the tapes, Monroe, Morgenbesser, Fusco-Bryant, and Larry Embry were charged with third-degree conspiracy to commit financial facilitation of criminal activity, N.J.S.A. 2C:5-2 (count one); and third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (count two). Along with Kelly Embry, all were charged with fourth-degree tampering, N.J.S.A. 2C:28-6(2) (count three); and third-degree perjury, N.J.S.A. 2C:28-1 (count four). In separate counts, the Embrys were charged with second-degree conspiracy to commit misconduct by a corporate official, N.J.S.A. 2C:5-2 (count five); and second-degree misconduct by a corporate official, N.J.S.A. 2C:21-9(c) (count six). Fusco-Bryant was charged with fourth-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b)(4) (count seven); third-degree hindering the apprehension of another, N.J.S.A. 2C:29-3(a)(7) (count eight); and second-degree hindering the apprehension of another, N.J.S.A. 2C:29-3(a)(5) (count nine). The defendants' motions to suppress were granted on January 7, 2019, stated by the same trial judge who decided the Jackson matter and for the same reasons.

         THE TRIAL JUDGE'S DECISIONS GRANTING THE MOTIONS

         The Law Division judge found that the recorded calls had to be suppressed because the prosecutor's grand jury subpoena of the recordings from the correctional facilities violated the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37, Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and Article I Paragraph 7 of the New Jersey Constitution. In his view, a warrant or a separate wiretap order was necessary even though the Act authorizes correctional facilities to monitor inmate calls. The judge further opined that an inmate's consent, evidenced by his or her undisputed knowledge the calls would be recorded and monitored, was invalid because it was the product of an imbalance in power between the corrections facility and inmates. Sensitive to the intrusion into an individual's privacy interest that results from the recording, and its subsequent use in prosecution, the judge suppressed the material in both cases.

         In Jackson, the State alleges the following points of ...


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