The law of search and seizure hasn’t kept pace with technology that can locate a cellphone anywhere on the globe. That’s why the state Supreme Court is trying hard to come up with standards for using such data to locate criminal suspects.
On Tuesday, the court heard arguments for the second time in three months on whether an arrest based on cellphone tracking data obtained without a warrant is void under the state and federal constitutions.
If it is, a larger question is whether that decision would constitute a “new rule” — effective only prospectively — or would open the door to appeals in similar cases that have long been closed.
Since 2009, when the Legislature stiffened the N.J. Wiretap and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., it has become the customary practice to obtain warrants for electronic data.
But the case, State v. Earls, A-53-11, predates the statute. It concerns a Monmouth County man arrested for a series of break-ins in 2006.
Without obtaining a warrant, police asked Thomas Earls’ service provider, T-Mobile, for information about his phone’s location. When turned on, cellphones send out signals every few seconds to determine the location of the nearest cell tower, and that traffic is recorded by the service provider.
Police obtained general locations for Earls’ phone on three occasions, the third within a one-mile radius of a cell tower near Route 9 in Howell. Police obtained an arrest warrant, searched the area and found Earls at a motel.
Charged with multiple burglary counts, Earls took a plea bargain and drew a seven-year prison term. He is attempting to withdraw his plea, arguing the information obtained from T-Mobile without a warrant violated his privacy rights under the U.S. Constitution’s Fourth Amendment and the New Jersey Constitution, art. 1, ¶. 7.
The Appellate Division turned him down, ruling he had no reasonable expectation of privacy as to his location.
At Tuesday’s arguments, Earls’ designated counsel, Columbus solo Alison Perrone, said rudimentary research conducted by the Attorney General’s Office has shown that law enforcement has been obtaining search warrants in most cases involving cell phone location data.
That shows investigators have known for some time that warrants should be the norm, she said.
Justice Barry Albin asked whether there would have been a reduced expectation of privacy when Earls was arrested six years ago, when the technology used to locate a cell phone was less precise.
Perrone said no. “There is a reasonable expectation of privacy in the data,” she said. “The mere fact that you carry a cellphone does not mean the government can use that as a means of surveillance. Just because you turn it on, that does not mean that can be used to track you.”
Chief Justice Stuart Rabner asked Perrone whether law enforcement might be obtaining warrants because of the pendency of this case. Perrone said she could not answer that question.
Rubin Sinins, representing the amici American Civil Liberties Union of New Jersey and Association of Criminal Defense Lawyers of New Jersey, said his research showed law enforcement had been obtaining warrants in some cases as early as 2003. Based on that, the state could not argue that the warrant requirement is a “new rule,” said Sinins, of Springfield’s Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins.
Sinins argued that without a warrant requirement, “you could track someone’s life with no judicial oversight.”
Deputy Attorney General Brian Uzdavinis argued, as the Appellate Division found, that Earls had no reasonable expectation of privacy, since the information could locate his phone only within a mile of a cell tower.
Rabner asked what the best practices were at the time of Earls’ arrest, which predated the 2009 amendments to the surveillance statute.
Uzdavinis said there is a lack of case law from that time and little data from county prosecutors’ offices on the issue.
“You have no data at all about 2006?” Justice Anne Patterson asked.
That is correct, Uzdavinis said.
Rabner asked what the consequences would be if a warrant rule were to be applied retroactively.
“This would change the rules,” Uzdavinis said. “It would completely change the rules that police were following at the time.”