Christopher Dernbach ’21 and Mikayla Berliner ’21, students in the Impact Litigation Clinic in the Center for Social justice (CSJ),drafted an amicus brief in the Supreme Court of New Jersey that played a significant role in the Court’s decision in State v. McQueen. Professor Jon Romberg supervised the students and argued before the Court.
The case addresses whether an arrestee has a reasonable expectation of privacy in a phone call placed from a police station when he has not been given notice that his call is being monitored or recorded. The Court held that an arrestee does have such an expectation of privacy, absent notice of recording, given the New Jersey Constitution’s heightened protections of privacy, especially in the context of telephone calls. The decision expressly relies on arguments advanced by the CSJ, including evidence of the public’s widespread perception that arrestees are typically entitled to place one phone call from a police station, free from monitoring. Moreover, the Court embraced the CSJ’s observation that consumers expect that they will be given notice if their phone calls are being recorded, and followed the CSJ’s suggestion that the Court require police to provide notice to arrestees that their calls from a police station may be recorded because doing so is wise as a policy matter, both protecting arrestees’ privacy rights and discouraging them from unlawful conduct in such calls.