Essex County Correctional Facility in Newark/photo by Carmen Natale

The New Jersey Supreme Court on Wednesday affirmed that prosecutors can subpoena recordings of telephone conversations made by defendants held in county detention facilities. 

The one-sentence order affirmed an Appellate Division judgment, which last year reversed two trial court orders suppressing information prosecutors gleaned from phone calls placed by two different inmates from two different detention facilities.

The appeal drew amicus briefs from the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Association of Criminal Defense Lawyers from New Jersey in support of the criminal defendants.

Middlesex County Acting Prosecutor Christopher L.C. Kuberiet issued a statement on the ruling.

"We are grateful for the Supreme Court's unanimous affirmance of the Appellate Division's well-reasoned opinion," the statement read. "[The] decision will deter incarcerated criminal defendants from using their telephone privileges as a means of covering up evidence of past crimes or committing new crimes. This is a victory for public safety and the integrity of the criminal justice process in New Jersey."

Tamar Lerer, an assistant deputy public defender with the New Jersey Office of  the Public Defender who argued the case for the defendants, said she was disappointed in the ruling.

The ACLU, who also participated in the March 17 oral arguments before the high court as an amicus, couldn't immediately be reached for comment.

The case stemmed from Middlesex County prosecutors' decision to secure grand jury subpoenas for recordings of calls placed by Mark Jackson and Jamie Monroe while both were detained. Jackson was held at the Essex County correctional facility, and Monroe at the Middlesex County Department of Adult Corrections.

Prosecutors used information gleaned from calls Jackson made to his mother to charge him with witness tampering after he was arrested on charges associated with $2,600 worth of stolen coins, according to a syllabus of the case.

Prosecutors also secured recordings of phone calls that Monroe made while in custody to charge him and some of the individuals Monroe called.

In both cases, the trial court granted defense motions to suppress the calls. But last year, the Appellate Division reversed those rulings in an opinion authored by Presiding Judge Carmen Alvarez.

Alvarez held that New Jersey wiretapping laws do not apply to recorded conversations (other than to defense lawyers or internal affairs) because inmates are required to sign waivers acknowledging the recordings. The inmates are also reminded at the beginning of each call that their conversations are monitored.

Alvarez determined that recording inmate calls does not constitute an illegal interception under state law and that sharing that information among law enforcement agencies is legal.

He ruled that subpoenaing the recordings was "appropriate" and that the defendants had no constitutionally protected or "objectively reasonable" expectation of privacy when making those calls.

Alvarez also held that "if an inmate knows he or she is being monitored and recorded when speaking on the phone, it is unreasonable to conclude either that the inmate retains a reasonable expectation of privacy, or that the inmate's loss of privacy should be limited to the one law enforcement agency."