State v. Lunsford

• Decision Date: 01 August 2016
• Citation: 141 A.3d 270,226 N.J. 129
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Gary LUNSFORD, Defendant–Respondent.
• Court: New Jersey Supreme Court

226 N.J. 129

141 A.3d 270

STATE of New Jersey, Plaintiff–Appellant

v.Gary LUNSFORD, Defendant–Respondent.

Supreme Court of New Jersey.

Argued Feb. 29, 2016.

Decided Aug. 1, 2016.

Corrected Aug. 3, 2016.

Ronald Susswein, Assistant Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Mr. Susswein, Claudia Joy Demitro, Ian C. Kennedy, and Jane C. Schuster, Deputy Attorneys General, of counsel and on the briefs).

Dean I. Schneider, Red Bank, argued the cause for respondent (Schneider Freiberger, attorneys).

Kevin H. Marino argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Marino, Tortorella & Boyle, attorneys; Mr. Marino, John D. Tortorella, and Erez J. Davy, Chatham, on the brief).

Frank L. Corrado, Wildwood, argued the cause for amici curiae American Civil Liberties Union of New Jersey, Brennan Center for Justice, Electronic Frontier Foundation and Office of the Public Defender (Edward L. Barocas, Legal Director, attorney; Mr. Corrado, Alexander R. Shalom, Rubin M. Sinins, Newark, and Annabelle M. Steinhacker, on the brief).

Chief Justice RABNER delivered the opinion of the Court.

For more than three decades, this Court has departed from federal law and recognized that, under the New Jersey Constitution, individuals have a reasonable expectation of privacy in information they provide to phone companies, banks, and Internet service providers in order to use commercial services. The Court has consistently applied that principle to protect personal information from unrestricted government access. No party in this appeal seeks to disturb that precept, which is a bedrock feature of New Jersey law.

As a general rule, the greater the degree of intrusion into one's private matters by the government, the greater the level of protection that should apply. This appeal asks the Court to revisit the standard that should apply to telephone billing records sought in connection with a criminal investigation. The appeal also highlights inconsistencies in New Jersey's case law on privacy which have developed over time.

Telephone billing records, bank and credit card records, and Internet subscriber information can all reveal intimate details about a person's life. The level of detail disclosed across all of those areas is relatively similar. Yet our case law has set different standards that law enforcement officers must meet to obtain information from those sources. Earlier decisions, with little analysis, required officials to seek a search warrant supported by probable cause to get access to telephone billing records; among other things, those records disclose the telephone numbers dialed to and from a particular phone but not the content of any conversations. To get access to bank records, though, which reveal the actual content of transactions, officials need only use a grand jury subpoena. A subpoena can be used if the documents are relevant to an ongoing criminal investigation, a lower threshold than probable cause.

When the Court's decisions in the area of privacy rights are read together, they reveal internal inconsistencies. We now attempt to resolve that tension in the law. Because telephone billing records reveal details of one's private affairs that are similar to what bank and credit card records disclose, we conclude that both areas of information should receive the same level of constitutional protection and be available if they are relevant to an ongoing criminal investigation. More intrusive records, like cell-phone location information, are entitled to greater protection and continue to require a search warrant.

To guard against the possibility of abuse in this sensitive area, however, we retain direct judicial oversight of the process and require the State to obtain a court order before it can ask a service provider to turn over telephone billing records. A judge may enter an order if law enforcement officials offer specific and articulable facts to demonstrate that telephone billing records are relevant and material to an ongoing criminal investigation. See N.J.S.A. 2A:156A–29(e). We believe that this approach not only resolves the tension in existing case law, but also strikes an appropriate balance between legitimate privacy rights of individuals and society's valid interest in investigating and preventing crime.

We therefore agree with the trial court's decision to quash the grand jury subpoena the State served in this case, and direct that the State may apply for a court order to obtain the telephone billing records it seeks.

I.

The police arrested defendant Gary Lunsford after they executed a search warrant at his home on May 15, 2014. As part of a continuing investigation, the Monmouth County Grand Jury issued a subpoena duces tecum on June 19, 2014 to Cellco Partnership, doing business as Verizon Wireless. The subpoena required Verizon to produce telephone records and global positioning system (GPS) data associated with defendant's cell-phone number; the number was the contact for controlled drug buys that provided the basis for the search warrant.

Six weeks later, the grand jury recalled the subpoena and issued a new one that omitted the request for GPS data—to comply with State v. Earls, 214 N.J. 564, 70 A. 3d 630 (2013), which requires a search warrant for cell-phone location information. The new subpoena sought subscriber information for the cell phone, namely, billing and customer records, as well as call-detail records for the two weeks leading up to defendant's arrest. Call-detail information includes the phone numbers dialed out from defendant's cell phone, the phone numbers dialed in to that phone, and the date, time, and duration of those calls. That information is often referred to as “telephone billing records” or “telephone toll records.”

The State alerted defense counsel that it was seeking telephone billing records to give defendant the opportunity to move to quash the subpoena. Defendant filed a motion to quash, and the trial court granted the motion on January 16, 2015. In a written opinion, the trial court explained that under State v. Hunt, 91 N.J. 338, 450 A. 2d 952 (1982), a communications data warrant, the equivalent of a search warrant, is needed to obtain telephone toll records.

The Attorney General, who superseded the Monmouth County Prosecutor's Office to litigate the constitutional question this case raises, sought leave to appeal. The Appellate Division denied the request. The State then filed a motion for leave to appeal with this Court, which we granted. 223 N.J. 159, 121 A. 3d 384 (2015).

II.

The Attorney General does not dispute that telephone billing records are entitled to protection under the State Constitution. He argues instead that a grand jury subpoena, based on a relevancy standard rather than probable cause, is sufficient to safeguard the privacy rights at stake.

For support, the Attorney General traces the evolution of privacy rights under the State Constitution from Hunt, which addressed telephone billing records, to the present. He asserts that although Hunt found that customers enjoy a reasonable expectation of privacy in telephone billing records, the opinion did not address whether a grand jury subpoena would adequately protect that right. By contrast, the Attorney General contends, more recent case law relating to the privacy rights in bank records, State v. McAllister, 184 N.J. 17, 875 A. 2d 866 (2005), Internet subscriber information, State v. Reid, 194 N.J. 386, 945 A. 2d 26 (2008), and cell-phone location information, Earls, supra, 214 N.J. 564, 70 A. 3d 630, “strongly suggest ... that a grand jury subpoena is all that is needed.” According to the Attorney General, bank and Internet subscriber records can reveal intimate details about a customer's private life that compare to the level of information disclosed in telephone billing records; as a result, those areas should be treated similarly under the law. The Attorney General, therefore, argues that this Court should reconcile Hunt with its more recent opinions.

The Attorney General contends that the grand jury subpoena process works well to protect State constitutional privacy rights, that the law in other jurisdictions does not support sustaining a warrant requirement, and that the legitimate needs of law enforcement offer further support for the use of grand jury subpoenas to obtain telephone billing records. In particular, the Attorney General notes that a probable cause standard delays prosecutors from gathering toll records at an early stage in a criminal investigation and, as a result, lengthens the amount of time needed to conduct criminal investigations.

Defendant argues that Hunt not only found a reasonable expectation of privacy under the State Constitution in telephone billing records but that it also imposed a warrant requirement for the police to obtain those records. Because call-detail records can “paint a picture” of defendant's private life, he maintains that Hunt was correctly decided and should not be overturned. Defendant adds that the Attorney General has not presented any special justification to overturn Hunt.

Defendant also argues that the grand jury subpoena process, guided by a relevancy standard with no judicial oversight, does not adequately protect a citizen's privacy rights. Defendant claims that a warrant requirement is the only way to guarantee the needed level of protection.

We granted amicus curiae status to (1) the American Civil Liberties Union of New Jersey, the Brennan Center for Justice, the Electronic Frontier Foundation, and the Office of the Public Defender (collectively, the ACLU), which submitted a joint brief, and (2) the Association of Criminal Defense Lawyers of New Jersey (ACDL).

Amici expand upon the arguments defendant raises. They contend that Hunt expressly and correctly imposed a warrant requirement and should not be overturned. The ACLU argues that telephone...