State v. Earls

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: Chief Justice RABNER delivered the opinion of the Court.
• Citation: 70 A.3d 630,214 N.J. 564
• Decision Date: 18 July 2013
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Thomas W. EARLS, Defendant–Appellant.

214 N.J. 564
70 A.3d 630

STATE of New Jersey, Plaintiff–Respondent,
v.
Thomas W. EARLS, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Oct. 22, 2012.
Reargued Jan. 29, 2013.
Decided July 18, 2013.

[70 A.3d 631]

Alison S. Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Brian J. Uzdavinis, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).

Rubin M. Sinins, Newark, argued the cause for amici curiae The American Civil Liberties Union of New Jersey Foundation and The Association of Criminal Defense Lawyers of New Jersey (Edward L. Barocas, Director, attorneys; Mr. Sinins, Mr. Barocas, Alexander R. Shalom, Jeanne M. LoCicero, and Jeffrey S. Mandel, Manalapan, on the briefs).

Grayson Barber and Alan Butler, a member of the California bar, argued the cause for amicus curiae Electronic Privacy Information Center (Ms. Barber, attorney; Ms. Barber, Mr. Butler, and Marc Rotenberg, a member of the Massachusetts and District of Columbia bars, and the United States Court of Appeals, on the briefs).

Chief Justice RABNER delivered the opinion of the Court.

[214 N.J. 568]Advances in technology offer great benefits to society in many areas. At the

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same time, they can pose significant risks to individual privacy rights. This case highlights both principles as we consider recent strides in cell-phone technology. New improvements not only expand our ability to communicate with one another and access the Internet, but the cell phones we carry can also serve as powerful tracking devices able to pinpoint our movements with remarkable precision and accuracy.

In this appeal, we consider whether people have a constitutional right of privacy in cell-phone location information. Cell phones register or identify themselves with nearby cell towers every seven seconds. Cell providers collect data from those contacts, which allows carriers to locate cell phones on a real-time basis and to reconstruct a phone's movement from recorded data. Those developments, in turn, raise questions about the right to privacy in the location of one's cell phone.

Historically, the State Constitution has offered greater protection to New Jersey residents than the Fourth Amendment. Under settled New Jersey law, individuals do not lose their right to privacy simply because they have to give information to a third-party provider, like a phone company or bank, to get service. See State v. Reid, 194 N.J. 386, 399, 945 A.2d 26 (2008). In addition, New Jersey case law continues to be guided by whether the government has violated an individual's reasonable expectation of privacy.

Applying those principles here, we note that disclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual. With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used [214 N.J. 569]by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.

We also recognize that cell-phone location information can be a powerful tool to fight crime. That data will still be available to law enforcement officers upon a showing of probable cause. To be clear, the police will be able to access cell-phone location data with a properly authorized search warrant. If the State can show that a recognized exception to the warrant requirement applies, such as exigent circumstances, then no warrant is needed.

Having a clear set of rules serves two key goals. It protects legitimate privacy interests and also gives guidance to law enforcement officials who carry out important public safety responsibilities. Because today's decision creates a new rule of law that would disrupt the administration of justice if applied retroactively, the rule will apply to this defendant and prospective cases only.

The issue before the Court arises in the case of a burglary investigation. In an effort to locate the target and his girlfriend, whose safety was in question, the police obtained cell-phone location information from T–Mobile on three occasions during the same evening—without first getting a court order or a warrant.

The trial court found that defendant had a reasonable expectation of privacy in his cell-phone location information but admitted the evidence under the emergency aid exception to the warrant requirement. The Appellate Division affirmed on different grounds. It concluded that defendant

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lacked a reasonable expectation of privacy in his cell-phone location information and that the police lawfully seized evidence in plain view. The panel had no reason to consider the emergency aid doctrine.

Because we find that cell-phone users have a reasonable expectation of privacy in their cell-phone location information, and that police must obtain a search warrant before accessing that information, we reverse the judgment of the Appellate Division. To determine whether the emergency aid doctrine or some other [214 N.J. 570]exception to the warrant requirement applies to the facts of this case, we remand the matter to the Appellate Division for further proceedings.

I.

We draw the following facts from testimony at the suppression hearing in this case. In January 2006, Detective William Strohkirch of the Middletown Township Police Department was investigating a series of residential burglaries. After a victim told Strohkirch that a cell phone stolen from his home was still active, a court-ordered trace of the phone led the police to a bar in Asbury Park. Strohkirch and two other officers found an individual at the bar with the phone, and they arrested him. He told the police that his cousin, defendant Thomas Earls, had sold him the phone. He added that defendant had been involved in residential burglaries and kept the proceeds in a storage unit that either defendant or his former girlfriend, Desiree Gates, had rented.

The police found Gates the next day at her cousin's home, and Gates agreed to cooperate in the investigation. Gates confirmed that she had leased a storage facility in Neptune, which defendant had paid for, and the trial court found that she consented to a search of the unit. That issue is not before us.

Several detectives accompanied Gates and her cousin to the storage unit. Because defendant had the only key to the unit, the officers cut the lock. Inside, the police found various items they believed were stolen, including golf clubs, flat-screen televisions, expensive jewelry, and sports memorabilia. Gates denied any knowledge of the items.

Strohkirch spoke with Gates's cousin the following day, January 26, 2006. She said that she had not seen Gates since the visit to the storage unit and was concerned about Gates's safety. According to the cousin, defendant learned about Gates's cooperation and threatened to harm her. The cousin also relayed that defendant and Gates had “some domestic violence situations” in the past. Strohkirch was able to locate an Asbury Park police report from [214 N.J. 571]December 2005, which outlined an allegation by Gates that defendant had assaulted her.

At some point on January 26, 2006, the police filed a complaint against defendant for receiving stolen property and obtained an arrest warrant. Strohkirch then began to search for defendant and Gates to ensure her safety and to execute the warrant.

In an effort to locate them, the police contacted T–Mobile, a cell-phone service provider, at about 6:00 p.m. At three different times that evening, T–Mobile provided information about the location of a cell phone the police believed defendant had been using. First, at around 8:00 p.m., T–Mobile told the police that the cell phone in question was in the “general location” of Highway 35 in Eatontown.¹ The

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police searched the area but did not find defendant or Gates.

Second, at about 9:30 p.m., the police again contacted T–Mobile, which reported that the cell phone was being used in the area of Routes 33 and 18 in Neptune. The police searched that area in response but did not find defendant. Finally, after the police called T–Mobile at around 11:00 p.m., the carrier reported that a cell-site tower in the area of Route 9 in Howell had been used. At no point did the police seek a warrant for the three traces.

[214 N.J. 572]Local police departments assisted Strohkirch throughout the evening. At around midnight, the Howell Police Department located defendant's car at the Caprice Motel on Route 9 in Howell. A local officer stayed in the area to watch the car. Meanwhile, Strohkirch and Detective Deickman of the Middletown Police drove to the motel together. When they arrived at about 1:00 a.m., the officer on site reported that he had not seen any movement and that all of the motel rooms were dark.

The officers decided to call for backup from the Howell Police Department out of concern for a potential hostage situation. At about 1:30 a.m., additional officers arrived, but they left the scene because of an emergency elsewhere in Howell. Strohkirch and Deickman remained and called for additional officers from their department. Strohkirch testified that he did not believe that two officers could safely apprehend defendant.

At about 3:00 a.m., two hours after Strohkirch and Deickman first arrived at the motel, two police officers from Middletown arrived. At that point, Deickman spoke with a clerk in the motel office who confirmed where Gates and defendant were staying. Deickman called their room from the clerk's...