Ronald Susswein
Ronald Susswein (NJNP photo/Joe Epstein)

The New Jersey Attorney General’s office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.

Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels, in the hope that the issue will eventually percolate up to the high court, according to his June 10 memo, obtained by the New Jersey Law Journal.

Susswein said he thinks the court might be ready to overturn its holding, in State v. Hunt, 91 N.J. 338 (1982), that the warrantless search and seizure of telephone billing records, while permissible under the federal Fourth Amendment, violates the nearly identical provision of the state constitution.

“As a result of the Hunt decision, telephone billing records have not been available to prosecutors until the later stages of a criminal investigation, when we already have sufficient information to make an arrest and to obtain a search warrant to search the premises where the subject telephone is located,” he wrote.

“The Hunt procedure thus delays investigations as compared to federal practice, where a grand jury subpoena is used to obtain these same third-party telephone billing records near the outset of a criminal investigation.”

Susswein called on the county prosecutors to identify “appropriate test cases,” as soon as possible, promising to provide whatever legal assistance you may need, including drafting model briefs.”

Noting the “risks inherent” in the litigation, he cautioned against subpoenaing phone records in cases that involve ‘major investigations of serious, violent crimes.”

Peter Aseltine, a spokesman for the Division of Criminal Justice in the Attorney General’s office, described the memo as a “routine” one about litigation strategy that was “not intended for public release.”

The memo indicates that the test case idea was discussed with the County Prosecutors Association at a June 10 meeting.

The Law Journal asked prosecutors for Bergen, Burlington, Camden, Essex and Hunterdon counties for a reaction. Only two responded by press time on Thursday—Burlington and Camden—which declined comment through their respective spokesmen, Joel Bewley and Jason Laughlin.

Defense lawyers and others provided with a copy of the document had largely negative reactions.

Joseph Rotella of Newark, president of the New Jersey chapter of the Association of Criminal Defense Lawyers, called it “disappointing to see that the agency charged with protecting our citizens and enforcing the law would plan to intentionally violate a citizen’s rights just to make them a test case.”

ACDL-NJ vice president Christopher Adams said “if the Attorney General’s office thinks the defense bar and the civil rights bar are going to stand by while they try to strip more of our rights away, they are sadly mistaken.”

Adams, a Holmdel solo, called it intellectually dishonest to say that Hunt causes delays, given that a warrant for phone records can typically be obtained within a few hours.

Since Hunt, phones have to come to contain so much more information, such as email, voice mails, photos and calendar information, that greater privacy protection is warranted, not less, he said.

Though the memo refers solely to billing records, he said he worried about the slippery slope effect.

Former ACDL-NJ president Lawrence Lustberg, of Gibbons in Newark, said, “Assuming that the state can somehow convince the Supreme Court to take another look at Hunt—an assumption which is dubious at best—I look forward to opposing any effort to increase the state’s ability to delve into our personal details, or at least to do so without judicial approval, as the state will apparently seek to do.”

Lustberg said the memo “ignores recent events, and especially those surrounding NSA surveillance, which have united Americans on the left and the right in opposition to granting the government leave to monitor their activities.”

Another ex-ACDL-NJ president, Joseph Hayden, of Roseland’s Walder Hayden, thought the Attorney General “is entitled to have any litigation strategy it wants,” but called the plan to overturn Hunt “ill-advised” and unlikely to succeed.

Assistant Public Defender Dale Jones suspected a “larger agenda” to undo the greater protections provided under the state than the federal constitution, with the memo as “the thin edge of a wedge to try and roll back a generation plus of jurisprudence that began with Hunt.”

Two criminal law professors had differing views.

Seton Hall School of Law’s Jenny Carroll called it “a very aggressive move” and questioned whether it was in the interest of justice. Her concerns include the privacy rights of third parties—to whom the calls were placed—and the resulting creation of two categories of defendants—those whose rights are respected by the prosecution and those whose are not.

She also said she fears that overburdened or inexperienced defense counsel might not effectively oppose attempts to admit unconstitutionally obtained evidence or that defendants might end up taking a plea they would otherwise reject. Defendants in test cases will incur added legal costs or their public defenders will have more work to do, she noted.

Rutgers Law School-Newark Professor George Thomas III, on the other hand, said, “I don’t see anything wrong” and “prosecutors have a right to come up with a novel theory.”

He said he thinks Susswein made a good legal case, adding, “I don’t know why records of numbers called on the telephone are more private than records of banking transactions.”

In his memo, Susswein pointed to State v. McAllister, 184 N.J. 17 (2005), where the court ruled that a grand jury subpoena is sufficient to protect privacy rights in phone records.

“Because the information contained in the third-party financial records of the type at issue in McAllister is at least as revealing of personal activities and lifestyle as the information captured in a monthly telephone bill, there is reason to believe that, if squarely confronted with the issue, the New Jersey Supreme Court will rely on its more recent holding in McAllister as the basis for updating and refining its decision in Hunt,” stated Susswein.

He cited decisions that dispensed with the warrant requirement for other types of records: State v. Domicz, 1888 N.J. 285 (2006), held that electrical bills can be obtained through a subpoena on a utility while State v. Reid, 194 N.J. 836 (2008), allowed prosecutors to subpoena subscriber information from Internet service providers.

Susswein found additional hope in State v. Earls, 214 N.J. 564 (2013), which required police to obtain a warrant before they could track a suspect’s location through cellphone data, even though it relied on Hunt and did not question its continued validity.

Susswein acknowledged that Earls “embraced the fundamental holding in Hunt that people are entitled to assume that the telephone numbers they dial will be recorded solely for telephone company business and not for law enforcement” and echoed language from Hunt about how the phone numbers dialed can “easily reveal the most intimate details of a person’s life.

He was not discouraged, saying that the Earls court analyzed the issue in a way that lumped phone, bank and IP address records together as involving lesser privacy expectations than a person’s physical location by means of GPS tracking.

“In sum, although Earls was considered by prosecutors to be a ‘loss,’ that case can be cited for the proposition that telephone billing records, bank records, and Internet use records are all entitled to the same level of constitutional protection, in terms of the process and standard needed for authorizing law enforcement access to records maintained by third parties, and that this level of protection is less than that needed for obtaining GPS location tracking information,” Susswein reasoned.

In a recent appeal, Susswein took on another precedent, State v. Pena-Flores, 198 N.J. 6 (2009), which required exigent circumstances to search a car without a warrant.

The Appellate Division ruled on May 21 that it had no power to overturn it and termed Susswein’s position in the case, State v. Witt, completely meritless. The state has moved for leave to appeal to the Supreme Court. ■

The reporter can be reached at mgallagher@alm.com.