The police seek to utilize technological advances to aid investigations. Cell phone technology and these devices' ubiquity in our "handheld" culture have led police to cell phone tracking. Courts are therefore confronting the tension between law enforcement demands and individuals' privacy interests. In short, should constitutional limitations be placed upon the police tracking cell phones and, consequently, their users? The New Jersey Supreme Court recently answered "yes," holding, in the seminal case of State of New Jersey v. Thomas Earls, that cell phone location information is constitutionally protected, such that a warrant is required for disclosure to police.
The facts underlying Earls are relatively straightforward. Following a slew of burglaries, the Middletown Township Police Department traced a stolen cell phone to an individual who claimed that his cousin, Thomas Earls, sold it to him. The police further ascertained that Earls' girlfriend, Desiree Gates, rented a storage facility for him to store the burglarized proceeds. After Gates consented to a police search of the facility, Gates' cousin contacted the police and indicated that Earls had learned of Gates' cooperation, that Gates was missing and that Earls and Gates had a history of domestic violence. Based on this information, the police contacted T-Mobile, Earls' cell phone provider, to aid in the search for Gates by determining the location of Earls' cell phone.
Most cell phones, which permit a user to place calls, also have the capacity for sending text messages and emails, searching the internet and, in some circumstances, acting as personal global positioning systems. The associated technology also permits law enforcement to track and pinpoint a user's location and movements. Unlike conventional landlines, cell phones use radio waves to communicate between the user's handset and the telephone network. Cellular service providers maintain networks of radio base stations ("cell sites") spread throughout their geographic coverage areas. Cell phones periodically identify themselves to a nearby cell base station as they move about the coverage area, a process called "registration." The registration process occurs whenever the phone is powered on and without the user's input or control. As a result of registration, depending on geographic factors, a provider can track and calculate a user's location to within a few meters or less.
Using Earls' cell phone as a tracking device, T-Mobile reported location information to the police on three separate occasions, thereby leading the police to identify Earls' whereabouts. At no point did the police seek a warrant for any of the cell phone traces. Having determined that Earls and Gates were at the Caprice Hotel in Howell, New Jersey, the police initiated an arrest, searched Earls' hotel room and seized stolen property, jewelry and marijuana.
After a suppression hearing, the trial court upheld the seizure of all but the stolen jewelry. The court found that, although Earls had a reasonable expectation of privacy in the location of his cell phone under state law, and that the police should have obtained a warrant before requesting the cell phone traces, pursuant to the emergency aid exception, no warrant was required. Earls ultimately pled guilty and was thereafter sentenced. The New Jersey Appellate Division nonetheless permitted Earls to challenge the suppression ruling.
The appellate division affirmed the trial court but on different grounds. The appellate division found that Earls did not have a reasonable expectation of privacy because his movements were on a public highway and the cell phone traces provided location information that was general in nature. The Supreme Court of New Jersey granted certification and reversed.
The Fourth Amendment of the US Constitution guarantees "[t]he right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures." Traditionally, Fourth Amendment analyses focus on whether the government has violated an individual's reasonable expectation of privacy. From this vantage point, the US Supreme Court has held in United States v. Karo, Kyollo v. United States and other cases that, under federal law, using an electronic device to infer facts about the inside of a location impedes on constitutionally protected privacy interests and constitutes an unreasonable search without a warrant.
But in trying to create a workable structure wherein law enforcement may still benefit from technological advances, the US Supreme Court permitted a tracking device to be affixed to an automobile, without a warrant, with the justification that the information revealed information only visually observable from a public highway. More recently, however, the US Supreme Court found that an installation of a GPS device on a car required a warrant under the Fourth Amendment. The majority decision held that the installation of the device constituted a trespass on private property.
The New Jersey Constitution is more protective of privacy interests than federal decisions. Historically, New Jersey has offered its citizens greater privacy protections than the Fourth Amendment affords. Unlike federal law, New Jersey case law does not strip individuals of their right to privacy merely because relevant information is in the hands of a third party. Thus, internet service provider (ISP) subscriber information is constitutionally protected under the New Jersey Constitution. Telephone billing records, call records and bank records are likewise constitutionally protected. The Supreme Court of New Jersey has further recognized a general constitutional right of privacy in the compilation and dissemination of information that may otherwise be available only in scattered forms.
Within this context, the New Jersey Supreme Court considered the expectation of privacy that should be accorded to a user through location tracing of a cell phone. The court emphasized that tracking an individual's cell phone revealed information far more personal and comprehensive than toll billing, bank or Internet subscriber records. Cell phone tracing afforded law enforcement nearly the same function as twenty-four hour surveillance of a user. Accordingly, a cell phone trace would communicate which doctors, houses of worship or stores that an individual visits. The surveillance would permit the government to know the people and groups that an individual associates with. The information gleaned from a cell phone trace can provide an intimate portrait of one's life.
The court further found that the historically-used public versus private distinction, used to determine the legality of warrantless searches, can no longer suffice. A trace of a cell phone is not limited to public highways, and law enforcement can easily track an individual in private spaces without any prior intention to do so.
Finally, the court acknowledged cell phones' pervasiveness in modern society. Cell phones are used at work, at school, at home, at events, etc. They are intricately enmeshed in our culture and, wherever they are, so long as they are powered on, they are nearly always transmitting the location of their user. The inevitability and prominence of cell phone use in our society is undeniable. The law must adapt to protect users from the possibility of searches that most users do not expect as a consequence of cell phone ownership. Put simply, people do not anticipate that police will track then simply because they use cell phones.
Accordingly, the New Jersey Supreme Court found that Article I, paragraph 7 of the New Jersey Constitution protects an individual's privacy interest in the location of his or her cell phone. Law enforcement must, therefore, either obtain a warrant upon a showing of probable cause prior to initiating a cell phone trace or qualify for an exception to the warrant requirement.
In Earls, the New Jersey Supreme Court issued the first such decision in the nation. While warrantless cell phone searches are widely conducted in many jurisdictions, the federal circuit courts remain somewhat divergent in their views on the associated privacy interests. Under federal law, there is no definitive answer to whether there are constitutional limitations upon cell phone tracking. Most decisions focus on statutory law, for which there is no suppression remedy.
New Jerseyans now have greater protections. The analysis outlined in Earls supports both constitutional protections and a suppression remedy for unlawful acquisition. Moreover, the rationale underlying the Earls decision will undoubtedly have influence in other jurisdictions. Technological advances continue, and the courts must keep pace with these developments.
Annabelle Steinhacker is an associate, and Rubin Sinins a partner, in Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C., a litigation boutique based in Springfield, New Jersey. In the case of State v. Earls, Mr. Sinins served as amicus counsel for the American Civil Liberties Union of New Jersey Foundation and the Association of Criminal Defense Lawyers of New Jersey.
Suggested citation: Annabelle Steinhacker and Rubin Sinins, New Jersey High Court Correctly Rules Cell Phone Locations Are Constitutionally Protected, JURIST - Sidebar, Oct. 21, 2013, http://jurist.org/sidebar/2013/10/steinhacker-sinins-NJ-cell-tracking.php.
This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org