In State v. Thomas Earls, (A-53-11)(068765), the New Jersey Supreme Court announced a new rule of criminal procedure by imposing a warrant requirement on law enforcement investigators in order to obtain cell phone location information. This rule now applies to all criminal investigations in New Jersey.
A basic cell phone operates like a scanning radio and contacts the nearest site every seven seconds. Cell phones can be tracked so long as they are not turned off. With advances in technology, cell-phone providers today can pinpoint the location of a person’s cell phone with increasing accuracy – to within buildings and even within individual floors and rooms within buildings in some areas.
When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. Instead, they can reasonably expect that their personal information will remain private. Using a cell phone to determine the location of its owner is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate. Details about the location of a cell phone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers, and others. In addition, modem cell phones blur the historical distinction between public and private areas because phones emit signals from both places.
The New Jersey Supreme Court has found that Article , Paragraph 7 of the New Jersey Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment of the United States Constitution.
Because the Appellate Division found that defendant had no privacy interest in his cell-phone location information and that the plain view doctrine applied the Appellate Division did not consider the emergency aid doctrine. The Court remanded the matter to the Appellate Division to determine whether the emergency aid doctrine applies to the facts of this case under the newly restated test.
The significance of this decision to New Jersey criminal lawyers is clear. Any criminal case where law enforcement investigators have obtained the cell phone location information of a client without a warrant should be the subject of a motion to suppress the cell phone information and any evidence derived from that unlawful search, i.e., the fruit of the poisonous tree. For further information on this recent New Jersey Supreme Court decision, call the law offices of Schwartz & Posnock in Monmouth, Union, Middlesex and Essex Counties.