State v. Earls, A-53 September Term 2011; Supreme Court; opinion by Rabner, C.J.; decided July 18, 2013. On certification to the Appellate Division, 420 N.J. Super. 583 (App. Div. 2011). [Sat below: Judges Parrillo, Skillman and Roe in the Appellate Division; Judge Chaiet in the Law Division.] DDS No. 14-1-xxxx [43 pp.]

As part of an investigation into a series of burglaries, police received information incriminating defendant Thomas Earls. In an effort to locate him and his girlfriend, whose safety was in question, the police obtained cellphone location information from T-Mobile on three occasions during the same evening, without first getting a court order or a warrant. Using that information, they found defendant in a motel. When he opened the motel room door, the police arrested him. They saw a flat-screen television and several suitcases on the floor and found a pillowcase tied in a knot in a closed dresser drawer. After defendant signed a consent-to-search form, police found they contained stolen property, jewelry and marijuana.

Defendant, who was indicted for, inter alia, burglary, filed a motion to suppress. The trial court found that he had a reasonable expectation of privacy in his cellphone location information but admitted the evidence under the emergency-aid exception to the warrant requirement.

The Appellate Division affirmed. It concluded that defendant lacked a reasonable expectation of privacy in his cellphone location information and that the police lawfully seized evidence in plain view. It did not consider the emergency-aid doctrine.

Defendant's petition for certification was granted, limited to the issues of the validity of his arrest based on police use of the information regarding his cellphone's location and the application of the plain-view exception to the warrant requirement.

Held: People have a reasonable expectation of privacy in the location of their cellphones under the state constitution. Police 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 cellphone. This decision applies to defendant and future cases.

The court begins its analysis with an examination of how cellphones function, explaining, inter alia, that whenever a cellphone is turned on, it automatically searches for and registers with the nearest cell site every seven seconds.

The court then notes that early federal cases focused on whether the government had violated an individual's reasonable expectation of privacy. Two cases considering the government's use of beepers or electronic tracking devices found no reasonable expectation of privacy in the monitoring of tracking devices in public, as opposed to private, areas. Decisions that have applied those cases to cell-site data are divided. Some have found that the government's use of such data to get a general location does not violate the Fourth Amendment. Others have held that the Fourteenth Amendment requires that police get a warrant to obtain cell-site data. A recent U.S. Supreme Court decision held that the installation of a GPS device on a car was a trespass on private property and required a warrant. Five justices also discussed expectation-of-privacy concerns.

The court then notes that Article I, Paragraph 7 of the New Jersey Constitution is nearly identical to the Fourth Amendment but has been found to provide greater protection against unreasonable searches and seizures.

The court then says that an individual's privacy interest under New Jersey law does not turn on whether he is required to disclose information to third-party providers, such as banks and cellphone providers, to obtain service. When people make such disclosures, they can reasonably expect that their personal information will remain private.

The court then considers the expectation of privacy that should be accorded to the location of a cellphone. It says using a cellphone to determine the location of its owner is akin to using a tracking device and can substitute for 24/7 surveillance without police having to confront the limits of their resources. It involves a degree of intrusion that a reasonable person would not anticipate. Location information gleaned from a cellphone provider can reveal not just where people go but also the people and groups they choose to affiliate with and when they do so. It can provide an intimate picture of one's daily life. Modern cellphones also blur the historical distinction between public and private areas because they emit signals from both places.

The court says cellphones are not meant to serve as tracking devices to locate their owners. People buy cellphones to communicate with others and to use the Internet. No one buys a cellphone to share detailed information about his whereabouts with the police. Citizens have a legitimate privacy interest in such information.

The court therefore concludes that Article I, Paragraph 7 of the New Jersey Constitution protects an individual's privacy interest in the location of his cellphone. Users are reasonably entitled to expect confidentiality in the ever-increasing level of detail that cellphones can reveal about their lives. Police 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 a cellphone.

The court says this holding protects the reasonable expectation of privacy that cell-phone users have and offers clear guidance to law enforcement officials so they may carry out important tasks in the interest of public safety.

The court holds that this opinion announces a new rule of law. The police could not have reasonably anticipated that a warrant based on probable cause was needed, particularly in light of N.J.S.A. 2A:156A-29e, adopted in 2010, which requires that police get a court order for cell-site information on a showing of less than probable cause, except when they believe in good faith that an emergency involving danger of death or serious bodily injury to the subscriber exists. N.J.S.A. 2A:156A-29c(4). Because the results in a substantial number of cases would be jeopardized if the court applied its holding retroactively, it applies its holding to defendant and future cases only.

Finally, the court holds that the plain-view exception does not apply to the seizure of the luggage and television because the officers' presence in the motel room flowed directly from the warrantless search of T-Mobile's records. Since the Appellate Division did not consider if the emergency-aid exception was applicable, the court remands for a determination of that issue.

Justices LaVecchia, Albin, Hoens and Patterson and Judges Rodriguez and Cuff, both temporarily assigned, join in Chief Justice Rabner's opinion.

For appellant — Alison S. Perrone, designated counsel (Joseph E. Krakora, Public Defender). For respondent — Brian J. Uzdavinis, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For amici curiae: American Civil Liberties Union of New Jersey Foundation et al. — Rubin M. Sinins (Edward L. Barocas, Director; Sinins, Barocas, Alexander R. Shalom, Jeanne M. LoCicero, and Jeffrey S. Mandel on the briefs); Electronic Privacy Information Center — Grayson Barber and Alan Butler, of the Calif. bar (Barber, Butler and Marc Rotenberg, of the Mass. and D.C. bars and the U.S. Court of Appeals, on the briefs).