State v. Earls
By Casey Clausen – Edited by Mary Grinman
State v. Earls, A-53-11 (N.J. July 18th 2013)
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On July 18, the New Jersey Supreme Court reversed an Appellate Division judgment, which had held that there was no reasonable expectation of privacy in the location information transmitted by a cell phone, which can be used by police as a tracking device.
In a unanimous opinion, the Supreme Court held that the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone, and that police must accordingly obtain a search warrant before accessing that information. The Supreme Court remanded the case to the Appellate Division to determine whether an exception to the warrant requirement might apply on the facts of the case.
The New York Times and Mashable describe the holding and provide context on the state of the law concerning police use of cell phone location data for surveillance purposes. Talking Points Memo discusses the practical impact of the holding, noting that the decision will only affect the present case and future cases.
In 2006, Thomas Earls was suspected of a string of burglaries in Middletown, NJ. State v. Earls, A-53-11, slip op. at 5 (N.J. July 18th 2013). Police obtained information about the location of the cell phone Earls was believed to be using from T-Mobile on three separate occasions, in each case without a warrant. Id. at 7–8. Using that information, police were able to track Earls to a motel room, where he was found with stolen goods. Id. at 8. Earls argued that he had a reasonable expectation of privacy in the location of his cell phone, and that police were required to obtain a warrant before accessing that information. Id. at 12.
The Supreme Court’s opinion followed from settled New Jersey law that individuals do not forfeit their right to privacy when disclosing information to third-party service providers. Id. at 26–27. People have a reasonable expectation of privacy “in various types of personal information” and “[w]hen people make disclosures to . . . providers to use their services, they are not promoting the release of personal information to others.” Id. at 27–28 (citations omitted). The Supreme Court had previously found a reasonable expectation of privacy in Internet subscriber information, bank records, and telephone billing records. See State v. Reid 194 N.J. 386, 389 (2008); State v. McAllister, 184 N.J. 17, 19 (2005); State v. Hunt, 91 N.J. 338, 344 (1982). The Court acknowledged that these cases departed from federal precedent, id.; see, e.g., Smith v. Maryland 442 U.S. 735 (1979); U.S. v. Miller 425 U.S. 435 (1976), but stated that “[o]n a number of occasions, [the] Court has found that the State Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment.” Id. at 26 (citations omitted).
The Court also found that the information that could be gathered from the location of an individual’s cell phone was potentially far more revealing than telephone, bank, or Internet subscriber records. Id. at 29. The increasing accuracy with which cell phones can be tracked permits 24/7 surveillance and “can provide an intimate picture of one’s daily life.” Id. at 29–30. Cell phone location information “also blur[s] the historical distinction between public and private areas because cell phones emit signals from both places.” Id. at 30. Finally, the Court noted that cell phones are pervasive in everyday life, and “can often be found near their owners -- at work, school, or home, and at events and gatherings of all types.” Id.
In light of these considerations, the Court held 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.” Id. at 33. “[P]olice must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.” Id. The Court remanded to the Appellate Division to determine whether an exception to the warrant requirement applied. Id. at 40.
Federal case law is split on whether police tracking of cell phone location is consistent with the Fourth Amendment. Id. at 22. The Sixth Circuit has held that government’s use of cell phone location information does not violate Fourth Amendment (previously covered by the Digest). United States v. Skinner, 690 F.3d 772 (6th Cir. 2012), while the District Court of the Eastern District of New York found that cell phone location data is covered by Fourth Amendment (previously covered by the Digest). In re U.S. for Order Authorizing Release of Historical Cell Site Info., 809 F. Supp. 2d 113 (E.D.N.Y. 2011).
The decision is a significant step towards regulating a practice that the New York Times reports is widely used by police departments across the nation. As Mashable notes, the ruling is the first time a state Supreme Court has recognized a protected privacy interest in cell phone location information. Montana and Maine both recently enacted legislation requiring police to obtain a warrant before accessing cell phone location information, and according to the Washington Post, ACLU attorney Nathan Wessler believes that more states might follow suit.