Police violated a burglary suspect’s state constitutional right to privacy when they located him using cellphone tracking information without first obtaining a warrant, a New Jersey appeals court ruled on Friday.
The panel said the emergency-aid exception to the warrant requirement did not apply, because in the 15 hours that elapsed between the time the police started the search and when they eventually found the suspect, they had plenty of time to obtain a warrant.
“Certainly, the officers here were not responding to an open-line 9-1-1 call,” said Appellate Division Judges Anthony Parrillo and John Kennedy. “Nor had they personally witnessed any indicia of an emergency.”
The appeals court applied a ruling by the state Supreme Court last year in the same case, State v. Earls, 214 N.J. 524 (2013), that law enforcement must obtain a warrant before locating a suspect using cellphone tracking data.
“Although individuals may be generally aware that their phones can be tracked, most people do not realize the extent of modern tracking capabilities and reasonably do not expect law enforcement to convert their phones into precise, possibly continuous tracking tools,” Chief Justice Stuart Rabner wroted for the unanimous court.
He noted that technology now allows cellphones to be tracked to a particular room in a building.
The court remanded the case to the Appellate Division to determine if the emergency-aid exception should apply, since one witness had told the police that defendant Thomas Earls’ girlfriend had once filed a domestic violence complaint against him and could be in danger.
In 2005, Middletown police were tipped off that Earls, a suspect in a spate of home burglaries, was keeping stolen goods in a storage facility he leased with his girlfriend. They contacted her and she authorized a search, which yielded electronics, jewelry, sports memorabilia and other stolen property.
Police obtained an arrest warrant but then heard from the girlfriend’s cousin that Earls had threatened to harm her for cooperating with authorities. They asked Earls’ carrier, T-Mobile, to track his cellphone. Every seven seconds, a cellphone scans for the strongest signal, usually from the nearest tower, and sends a signal to that tower to identify itself.
After two unsuccessful tracking attempts, T-Mobile found Earls’ cellphone emitting signals near Route 9 in Howell. His car was found in a motel parking lot. Police arrested him, seized a flat-screen TV and luggage in the middle of his motel room and searched a dresser drawer, where they found stolen property. A search of the luggage later, with Earls’ consent, turned up marijuana and additional stolen property.
Monmouth County Superior Court Judge Paul Chaiet denied Earls’ motion to suppress the evidence, finding the emergency-aid exception to the warrant requirement existed at the time. Earls pleaded guilty and drew a seven-year prison term. He then attempted 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 New Jersey Constitution, art. 1, ¶ 7.
In this case, Parrillo and Kennedy said, it was clear the emergency-aid exception did not apply. “Not only did the officers lack a reasonable basis to believe that an ‘emergency’ existed, but their very own actions belied any need for an immediate, urgent law enforcement action,” they said, noting that several hours passed between the time the officers spoke to the girlfriend’s cousin and their approach to T-Mobile. “Certainly, there was sufficient time during this interval to secure a warrant for defendant’s cell-site data.”
Earls’ challenge was on state constitutional grounds only. The U.S. Supreme Court ruled a year earlier, in U.S. v. Jones, 132 S. Ct. 945 (2012), that law enforcement officers violated a defendant’s Fourth Amendment rights when they attached a GPS device to his car. However, the court found that installation of the GPS amounted to a trespass on private property, and the majority decision did not address whether there was a privacy violation when they monitored the device’s location.
Peter Aseltine, a spokesman for the Attorney General’s Office, says the decision is under review and an appeal to the state Supreme Court is being considered.
Earls’ designated counsel, Columbus solo Alison Perrone, did not return a telephone call. ¢