Electronic Surveillance

Privacy is in the News – Repeatedly

February 24, 2020 | By James S. Friedman, LLC

Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently. These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country. He was extremely poor and his family was basically gone. Having absolutely no personal resources for even necessities, he became involved with a local gang. To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout. Significantly, he really did not want any part of the gang lifestyle. He eventually fled his home country and sought asylum in the United States. He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related. The therapist took notes of their meetings, which included discussions of his gang-related activities. Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States. The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

State v. Jackson/State v. Monroe – Telephone Calls From Jail Facilities

July 30, 2019 | By James S. Friedman, LLC

In my experience, client calls from jail or prison facilities come in two forms. Sometimes, a client will call me directly from the facility using the facility’s telephone equipment. On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility. Both methods of contact present serious problems. The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations. Thus, this method of calling an attorney presents serious attorney-client privilege issues. I always advise clients to never discuss their case with anyone who has no need to know about it. A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.

Direct calls using jail or prison telephones are highly problematic for other reasons. State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey. That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs. Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored. Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form. Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.” Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.

Defendants in each of these cases made calls from these jails. The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress. The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act. He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls. He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility. In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.

Carpenter v. United States, Third-Party Collection of Personal Information from Electronic Devices, and Fourth Amendment Rights and Protections

September 15, 2017 | By James S. Friedman, LLC

Our personal information is constantly being collected by third parties without our realization. Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes. Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life. An individual cannot be part of modern society absent a cell phone and/or computer. These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland. There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank). This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties. Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

State of NJ v. F.W. – New Sex Offender Supervision Decision Discusses, Among Other Things, the Minefield of Sex Offender Supervision Regulations

January 25, 2016 | By James S. Friedman, LLC

The latest decision from the NJ Appellate Division involving sex offenders, State v. F.W., consists largely of a rather complex discussion concerning the interrelationship of Community Supervision for Life (“CSL”), Parole Supervision for Life (“PSL”), The Sex Offender Monitoring Act (“SOMA”), and the Ex Post Facto clauses of the Federal and New Jersey State Constitutions. That part of the decision is for attorneys and academics. However, the decision is noteworthy because it reviews significant elements of the regimen used to supervise sex offenders living in the State. Offenders subject to CSL or PSL and related requirements such as GPS monitoring need to understand the array of rules and restrictions governing their movements in the community, and their rights if they are accused of a violation.

Sex offenders in New Jersey, like most States, are subject to a bewildering array of regulations. Sex offender supervision in New Jersey began with CSL, which was enacted in 1994 as part of Megan’s Law. The Legislature enacted the current supervision law, PSL, in 2003. The number of defendants sentenced under CSL is dropping with the passage of time, but there are still many CSL offenders in the parole supervision system. F.W. was sentenced under CSL.

The decision reminds us that CSL and PSL differ in several significant ways. A violation of CSL is a crime and must be handled as any criminal case. Thus, the matter is heard by a Superior Court judge, and the defendant is represented by competent defense counsel and has all of the procedural protections typically afforded a criminal defendant. In sharp contrast, PSL offenders who violate the terms and conditions of their supervision can have their matters prosecuted as a criminal case involving a fourth degree charge or, alternatively, have their matters disposed of as parole violations. If the latter course is adopted, the matter will be heard by the Parole Board. The offender will have a relatively cursory administrative hearing before the Board that lacks all of the procedural protections available in a regular criminal case. As to punishment, the Board can revoke parole and return the offender to prison. Additionally, a CSL defendant adjudicated guilty of a violation and sentenced to a prison term can ultimately be released on parole. PSL defendants who are imprisoned as a result of violations (even if the violation stems from an offense identical to that committed by a CSL defendant) may not be released on parole. Thus, with respect to violations, a PSL offender will have fewer procedural protections than a CSL offender, but could face the same or even greater punishment. Continue reading ›

Grady v. North Carolina – Satellite-Based Monitoring of Sex Offenders Can Violate Fourth Amendment Rights

May 11, 2015 | By James S. Friedman, LLC

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015. After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring. Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures. Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment. The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search. This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts. First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures. Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading ›

New Jersey Supreme Court says State’s Wiretap Act is Constitutional

March 28, 2014 | By James S. Friedman, LLC

Edward Ates appealed his Bergen County conviction and life sentence for the murder of his son-in-law in Ramsey, New Jersey. The Appellate Division affirmed, and the New Jersey Supreme Court granted certification to consider, among other issues, Ates’ assertion that New Jersey’s Wiretapping and Electronic Surveillance Control Act was unconstitutional.

The cell phone conversations underlying Ates’ argument were between Florida, Louisiana and New Jersey. New Jersey law enforcement authorities obtained an order from a New Jersey wiretap judge to monitor the conversations. In issuing the order, the judge complied with all of the procedures required by the wiretap statute. Ates argued that the conversations should have been suppressed, and the Wiretap Act should be declared unconstitutional, because New Jersey authorities could not intercept and monitor out-of-state cell phone conversations from New Jersey; rather, the New Jersey authorities should have asked the proper officials in Florida and Louisiana to consent to the wiretaps. The Act was also constitutionally defective because it allowed New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey.

In analyzing Ates’ arguments, the Supreme Court noted that the Wiretap Act permits interceptions to investigate criminal activity in New Jersey, and requires a judge to find that a particular offense has been, is being or will be committed in New Jersey, and that interception may provide evidence of the New Jersey offense. The Act allows authorities to monitor conversations outside New Jersey from a listening post within New Jersey. Thus, the statute requires actual connections between the subject conversations(s), the offense(s) at issue, the investigation of those offenses, and the State of New Jersey. The fact that Ates’ arguments were far from novel was reflected in the Court’s review of a long list of Federal and State cases that have rejected similar challenges to wiretap statutes. Continue reading ›