               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0022-18T2
                                             A-2586-18T2

STATE OF NEW JERSEY,

     Plaintiff-Appellant,
                                    APPROVED FOR PUBLICATION
v.
                                            July 19, 2019
MARK JACKSON,                          APPELLATE DIVISION

     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 – Decided July 19, 2019

           Before Judges Alvarez, Reisner, and Mawla.
          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).

    The opinion of the court was delivered by

ALVAREZ, P.J.A.D.




                                                                  A-0022-18T2
                                    2
      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

Facility1 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 witho ut 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,




1
   Defendant Mark Jackson was being held on separate charges at the Essex
County Correctional Facility at the time relevant to these events.
2
   Defendant Jamie Monroe was housed at the Middlesex County Department
of Adult Corrections.


                                                                        A-0022-18T2
                                       3
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."



                                                                           A-0022-18T2
                                       4
      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 serv ed 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

                                                                       A-0022-18T2
                                       5
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.




                                                                       A-0022-18T2
                                       6
      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 error for our

consideration:

            POINT I
            DEFENDANT'S RECORDED JAIL CALLS ARE
            NOT INTERCEPTS FOR PURPOSES OF THE
            WIRETAP STATUTE; DEFENDANT HAD NO
            REASONABLE EXPECTATION OF PRIVACY IN



                                                                        A-0022-18T2
                                       7
      CALLS THAT HE GAVE EXPLICIT CONSENT TO
      LAW ENFORCEMENT TO RECORD.

            A.    The Trial Court Misinterpreted the "New
            Jersey Wiretapping and Electronic Surveillance
            Control Act," N.J.S.A. 2A:156A-1 to -37 (the
            "Act"), as Requiring the State to Obtain a Court
            Order Before Acquiring Recorded Phone Calls
            Made by Defendant While Incarcerated.

            B.   A Grand-Jury Subpoena Was Sufficient
            and a Warrant Was Not Required for
            Defendant's Recorded Telephone Calls Because
            Defendant Consented to the Recording and
            Divulgence of Those Calls and Had No
            Reasonable Expectation of Privacy in Them.

      POINT II
      THE TRIAL COURT COMPOUNDED ITS ERROR
      AND ABUSED ITS DISCRETION IN RULING
      THAT THE SUPPRESSED TELEPHONE CALLS
      COULD NOT BE USED FOR IMPEACHMENT AT
      TRIAL AND DISMISSING A COUNT OF THE
      INDICTMENT WITHOUT A PROPER HEARING.

In Monroe, the State contends the following warrant reversal:

      POINT I
      RECORDED JAIL CALLS ARE NOT INTERCEPTS
      FOR PURPOSES OF THE WIRETAP STATUTE,
      AND     DEFENDANT  MONROE     HAD   NO
      REASONABLE EXPECTATION OF PRIVACY IN
      CALLS THAT HE KNEW MAY BE RECORDED BY
      LAW ENFORCEMENT.

            A.    The Trial Court Misinterpreted the "New
            Jersey Wiretapping and Electronic Surveillance
            Control Act," N.J.S.A. 2A:156A-1 to -37 (the
            "Act"), as Requiring the State to Obtain a Court



                                                                A-0022-18T2
                                8
                   Order Before Acquiring Recorded Phone Calls
                   Made by a Defendant While Incarcerated.

                   B.    A Grand-Jury Subpoena Was Sufficient
                   and a Warrant Was Not Required for Monroe's
                   Recorded Telephone Calls Because Monroe
                   Consented to the Recording and Divulgence of
                   Those Calls and Had No Reasonable
                   Expectation of Privacy in Them.

            POINT II
            EVEN IF THIS COURT AFFIRMS THE TRIAL
            COURT'S ORDER GRANTING THE SUPPRESSION
            MOTION, THE SUPPRESSED TELEPHONE CALLS
            SHOULD REMAIN AVAILABLE TO USE FOR
            IMPEACHMENT AT TRIAL.

                                        I.

      A grand jury subpoena is a "proper" investigative tool. In re Subpoena

Duces Tecum, 214 N.J. 147, 166-70 (2013). Such subpoenas are permissible

even if the grand jury is not sitting on the return date of the subpoena, or is not

the same body which issued it. State v. Hilltop Private Nursing Home, Inc.,

177 N.J. Super. 377, 391 (App. Div. 1981). In other words, a prosecutor may

issue a subpoena without the grand jury's express permission, so long as the

material is returnable on a day when they are sitting. Ibid. So long as the

material is presented to them, it is not then an "invalid office subpoena[.]" Id.

at 395.

      To summarize, the State contends that its receipt of the recorded

telephone conversations falls outside the scope of the Act, Title III, the Fourth

                                                                          A-0022-18T2
                                        9
Amendment, and Article I, Paragraph 7 of the New Jersey Constitution. The

State also contends that a grand jury subpoena sufficed as the process through

which to obtain the recordings because doing so was nothing more than the

sharing between law enforcement agencies of lawfully obtained information

for lawful purposes. Additionally, the State argues that the repeated warnings

regarding monitoring and recording of jail phone calls meant inmates

consented to the sharing of the calls. The State further argues that even if not

available for direct use as part of its case in chief, the recordings should be

found to be available for impeachment purposes and that the second count of

Jackson's indictment should not have been dismissed.

      The Attorney General's Office, which filed an amicus brief, also asserts

the trial judge erred since the prosecutor's receipt of the materials did not

implicate the Act. The Attorney General further avers that inmates who are

informed that monitoring is a condition for the use of the facility's phone have

no reasonable expectation of privacy in the calls.

      The defendants in both appeals respond that the manner in which the

calls were obtained violated the Act, Title III, the Fourth Amendment, and

Article I, Paragraph 7 of New Jersey's Constitution. They posit that inmates

have a reasonable expectation of privacy in their calls, violated by the

Prosecutor's Office search and seizure of the contents.



                                                                        A-0022-18T2
                                       10
      Amicus curiae American Civil Liberties Union (ACLU), relying on State

v. Stott, 171 N.J. 343 (2002), argues that an inmate's consent to recordings

designed to advance institutional security does not constitute consent to release

the recordings for other purposes. The ACLU contends that disclosure by the

correctional facility to the Prosecutor's Office violated not just the Fourth

Amendment, but the Fifth Amendment as well, because disclosure to others of

details found in even seemingly innocuous conversations might undermine a

person's criminal defense.

                                       II.

      The facts underlying the motions to suppress are undisputed. Thus we

are left only with questions of law, which we decide de novo. State v. Boone,

232 N.J. 417, 426 (2017). We conclude that the Act does not apply.

      The Act and Title III bar the interception of wire communications, such

as phone calls, absent the issuance of a wiretap order or communications data

warrant. N.J.S.A. 2A:156A-3(a); 18 U.S.C. § 2511(1). New Jersey's law is

more restrictive than federal precedents.      In re Application of State for

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

Twitter, Inc., 448 N.J. Super. 471, 479-80 (App. Div. 2017) ("C.D.W.").

      A wire communication is:

            any aural transfer made . . . through the use of
            facilities for the transmission of communications by

                                                                         A-0022-18T2
                                       11
            the aid of wire, cable or other like connection between
            the point of origin and the point of reception,
            including the use of such connection in a switching
            station, furnished or operated by any person engaged
            in providing or operating such facilities for the
            transmission of intrastate, interstate or foreign
            communication. “Wire communication” includes any
            electronic storage of such communication, and the
            radio portion of a cordless telephone communication
            that is transmitted between the cordless telephone
            handset and the base unit[.]

            [N.J.S.A. 2A:156A-2(a) (emphasis added).]

Further, the Act defines aural transfer as a "transfer containing the human

voice at any point between and including the point of origin and the point of

reception[.]" C.D.W., 448 N.J. Super. at 475 (quoting N.J.S.A. 2A:156A-2(t)).

"The Act defines an 'oral communication' as 'any . . . utter[ance] by a person

exhibiting an expectation that such communication is not subject to

interception under circumstances justifying such expectation[.]'" Ibid. (first

alteration in original) (quoting N.J.S.A. 2A:156A-2(b)).

      Our courts strictly interpret and enforce the Act. State v. Worthy, 141

N.J. 368, 379-80 (1995). Because the impetus for adoption of our Act was the

earlier adoption of the federal law, when rendering decisions regarding

wiretapping and related issues, we at times turn to federal decisions

interpreting Title III. State v. Ates, 217 N.J. 253, 269 (2014). Failure to




                                                                      A-0022-18T2
                                      12
comply with the Act, of course, results in the suppression of the seized

evidence. Worthy, 141 N.J. at 380-81; N.J.S.A. 2A:156A-21.

      Telephone equipment used by law enforcement officers in the ordinary

course of their duties falls outside the scope of the Act. See State v. Fornino,

223 N.J. Super. 531, 544-45 (1988). In that case, which concerned prison

recordings of inmate phone calls, Judge Skillman held that the exemption

specifically includes corrections officers. Ibid. The language that creates the

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

Id. at 545.

      As Judge Skillman also said, "it would be unreasonable to construe the

federal and state acts as requiring court authorization before telephone

equipment regularly used to monitor calls on inmate telephones can be

activated based on specific information that a telephone will be used for a

prohibited purpose." Id. at 546. Thus, the Act and Title III's proscription

against the general monitoring of phone calls, absent an order or warrant,

simply excludes inmate phone calls recorded in prison facilities. Id. at 544-45.

Federal cases are in accord. See, e.g., United States v. Lewis, 406 F.3d 11, 16-



                                                                       A-0022-18T2
                                      13
17 (1st Cir. 2005); United States v. Hammond, 286 F.3d 189, 192 (4th Cir.

2002); United States v. Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002); Smith

v. Dep't of Justice, 251 F.3d 1047, 1049 (D.C. Cir. 2001); United States v. Van

Poyck, 77 F.3d 285, 291-92 (9th Cir. 1996); United States v. Feekes, 879 F.2d

1562, 1565-66 (7th Cir. 1989); United States v. Paul, 614 F.2d 115, 116-17

(6th Cir. 1980).

      Since the recording of such calls is not an interception within the Act or

Title III's purview, logically, sharing the information with another law

enforcement agency under the authority of a grand jury subpoena is not a

violation of the Act.       The information—the recording—was not an

interception. A grand jury subpoena is a proper investigative tool for the

sharing of lawfully obtained information. If creating the recording was not an

interception, another law enforcement agency's receipt of it is not an

interception either.

      The circumstances here are no different than when one law enforcement

agency shares information relevant to an ongoing investigation with another

law enforcement agency in order to assist in the apprehension of a suspect.

See Phila. Yearly Mtg. of Religious Soc'y of Friends v. Tate, 519 F.2d 1335,

1337-38 (3d Cir. 1975) (the sharing of information among law enforcement

agencies for a legitimate law enforcement purpose does not constitute a



                                                                        A-0022-18T2
                                      14
constitutional violation in and of itself and is only impermissible if the initial

gathering of that information was unconstitutional); see also State v. Soto, 340

N.J. Super. 47, 56-57 (App. Div. 2001); Commonwealth v. Green, 581 A.2d

544, 548-49 (Pa. 1990). No applicable law requires the Prosecutor's Office to

have done more than it did in this case. See, e.g., Lewis, 406 F.3d at 16-17;

Hammond, 286 F.3d at 192-93; Smith, 251 F.3d at 1049; In re High Fructose

Corn Syrup Antitrust Litig., 216 F.3d 621, 624-26 (7th Cir. 2000).

                                       III.

      The analogy to the inter-agency sharing of intelligence is strengthened

by the fact that the Act, like Title III, expressly authorizes law enforcement

agencies to do so:

            Any 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, any of its political
            subdivisions, or of the United States 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).]




                                                                         A-0022-18T2
                                       15
The use made by the Prosecutor's Office of these recordings was "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).

      Therefore if, for the sake of argument only, we were to find the Act and

Title III applied, sharing the information inter-agency was nonetheless lawful.

A corrections facility cannot be limited to sharing a recorded call only when it

relates to a planned escape or an assault by an inmate or other illegal activity

occurring within the confines of the jail or related to institutional security.

The language in the Act allows the disclosure or use when "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). The jail authorities were in the proper

performance of their official duties when they recorded the calls, and the

Prosecutor's Office was properly performing its official duties by conducting

the investigation.

                                      IV.

      Providing the recordings made by the correctional facility to the

Prosecutor's Office was not a separate interception.        Currently, the Act

includes electronic storage in the definition of wire communications, although

Title III no longer does.    C.D.W., 448 N.J. Super. at 482, n.9; N.J.S.A.

2A:156A-2(a). Electronic storage, however, is defined as:



                                                                        A-0022-18T2
                                      16
                  (1) Any temporary, intermediate storage of a
            wire or electronic communication incidental to the
            electronic transmission thereof; and

                  (2) Any storage of such communication by an
            electronic communication service for purpose of
            backup protection of the communication[.]

            [N.J.S.A. 2A:156A-2(q);          accord   18   U.S.C.   §
            2510(17).]

      The recorded phone conversations do not fall within either definition of

electronic storage. They were not "temporary, intermediate storage."          See

United States v. Councilman, 418 F.3d 67, 81 (1st Cir. 2005). They were not

"backup protection" preserving the communication.          See Theofel v. Farey-

Jones, 359 F.3d 1066, 1075 (9th Cir. 2004).           Therefore, receipt by the

Prosecutor's Office was not a separate interception because the phone calls

were not in electronic storage and were not a wire communication. " No new

interception occurs when a person listens to or copies the communication that

has already been captured or redirected." Noel v. Hall, 568 F.3d 743, 749 (9th

Cir. 2009). "[A] replaying of tapes containing recorded phone conversations

does not amount to a new interception[.]" Ibid; see also Hammond, 286 F.3d

at 193; Reynolds v. Spears, 93 F.3d 428, 432-33 (8th Cir. 1996); United States

v. Shields, 675 F.2d 1152, 1156-57 (11th Cir. 1982); United States v. Turk,

526 F.2d 654, 657-59 (5th Cir. 1976).




                                                                        A-0022-18T2
                                        17
                                       V.

      A reasonable expectation of privacy arises under the Fourth Amendment

when the defendant demonstrates he had an actual, subjective expectation of

privacy and the expectation is "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)). Only when the

expectation is objectively reasonable will it garner Fourth Amendment

protection and the protection of Article I, Paragraph 7.       Id. at 369-70.

Common sense limits those expectations in a jail setting.

      An inmate's privacy entitlements must yield to the institution's

responsibility to preserve the health and safety of the prison population, for

example.    Hudson v. Palmer, 468 U.S. 517, 527-28 (1984); In re Rules

Adoption Regarding Inmate Mail to Attorneys, Pub. Officials, & News Media

Representatives, 120 N.J. 137, 146-47 (1990). The public's need for such

facilities to maintain a safe and orderly environment is the same whether the

inmate is being held before or after conviction. See United States v. Hearst,

563 F.2d 1331, 1345 n.11 (9th Cir. 1977).

      Correctional facilities also have a legitimate security interest in

preventing inmates from planning or participating in crimes that will take

place outside the facilities' walls.   Protecting public safety and preventing



                                                                      A-0022-18T2
                                       18
obstruction of justice are among the recognized purposes of pretrial detention

and post-conviction incarceration. See N.J.S.A. 2A:162-18(a)(1); N.J.S.A.

2C:44-1(a)(3).

        In the balance, the correctional facilities' interest in maintaining

institutional security and public safety outweighs the right to privacy asserted

here.    Furthermore, 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—the

correctional facility—that is recording the conversation.

        Nor is it reasonable to limit the ability to divulge the information to

prosecutors to crimes related to prison security. It seems self-evident that the

logical conclusion a person would reach after being repeatedly warned that

calls are being recorded and monitored is that others will hear those calls. In a

prison setting, there is a reasonable expectation that law enforcement will hear

the calls.    Whether about crimes having an immediate impact on prison

security or otherwise, no reasonable expectation of privacy existed.

        Stott is inapposite to these cases. In Stott, the warrantless seizure of

evidence regarding drug distribution was made in a state-operated hospital

room. 171 N.J. at 350-51. That is far removed from an inmate using a prison



                                                                         A-0022-18T2
                                       19
telephone. The Court likened the expectation of privacy in a hospital room to

a home and stated that, "[e]ven when a patient consents to the presence of

hospital employees in the room, it has been held that such consent does not

waive the otherwise reasonable expectation of privacy from police intrusion

that one may enjoy in a hospital room." Id. at 356 (citation omitted). Clearly,

a hospital patient's privacy interests are regularly breached by hospital staff

necessary for a patient's care. But it would not be reasonable to deem that a

patient, who must accept those breaches of his privacy by the medical

profession, has thereby waived his constitutional protections from unwarranted

searches and seizures by police.

      In this regard, a prison telephone call is not analogous to a hospital

room, where individuals may be committed because of an illness and "not as

part of a criminal sentence." Id. at 357. A person's presence and expectations

in the two settings are patently different.    Defendants had no reasonable

expectation of privacy in their calls. There was no Fourth Amendment or

Article I, Paragraph 7 violation.

                                     VI.

      One final point requires brief discussion. Ordinarily we would not reach

it because reversal of the suppression orders would make it unnecessary, but

the issue is of some importance to the parties. Even when material is obtained



                                                                       A-0022-18T2
                                      20
contrary to the wiretap laws, and is suppressed, there are circumstances in

which it can be used for impeachment purposes.          As an example, those

committing affirmative perjury cannot obtain the Act's protection because such

distortion of the trial process will not be countenanced. See Estate of Lagano

v. Bergen Cty. Prosecutor's Office, 454 N.J. Super. 59, 78-79 (App. Div.

2018). Federal precedent is in accord. See, e.g., United States v. Simels, 654

F.3d 161, 169-70 (2d Cir. 2011) (citing United States v. Baftiri, 263 F.3d 856,

857-58 (8th Cir. 2001)); United States v. Echavarria-Olarte, 904 F.2d 1391,

1397 (9th Cir. 1990); United States v. Vest, 813 F.2d 477, 484 (1st Cir. 1987);

United States v. Caron, 474 F.2d 506, 508-09 (5th Cir. 1973); Culbertson v.

Culbertson, 143 F.3d 825, 827-28 (4th Cir. 1998); Jacks v. Duckworth, 651

F.2d 480, 483-85 (7th Cir. 1981).

      Even where evidence is obtained in violation of the Fifth Amendment, it

can be used for impeachment so long as the unlawfully obtained statement

bears indicia that it was freely and voluntarily given, without compelling

influence, and is thus reliable. State v. Maltese, 222 N.J. 525, 550-51 (2015).3




3
 We do not address the ACLU's additional argument premised on the Fifth
Amendment, because an amicus curiae may not raise new issues on appeal.
R. 1:13-9; State v. J.R., 227 N.J. 393, 421 (2017). Further, these appeals do
not present facts pertinent to the ACLU's Fifth Amendment issue.


                                                                        A-0022-18T2
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      The suppression orders are reversed and the cases remanded.       The

indictment count charging witness tampering is reinstated. We do not retain

jurisdiction.




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