UPDATED MAY 9, 2019

Article by Daniel A. Levy, Esq.

As a New Jersey criminal defense attorney, I am sometimes asked, “can police track my cellphone without a warrant?” I discussed this topic in an earlier article titled, Can police track my cellphone without a warrant? In that article, I discussed the several cases that were on appeal because police gathered the location data from the cell phone companies without a warrant.

The New Jersey Supreme Court has now made a ruling in the case of State v. Earls on this issue. In that case, the defendant was a suspect in a series of robberies. The police asked T-Mobile for the cell phone location data, which they provided. This data is location information that is sent to and from the cell phone. Essentially, everyone’s cell phone carrier is storing data on each customer that says the locations of where each customer’s cell phone is located at regular, short intervals of each day. The police used this location information to tie the defendant to the robberies and obtain an arrest warrant.

The prosecutor’s theory was that no one has any kind of expectation of privacy in their location while in public places. So a warrant was not required. The defense argues that people DO have an expectation of privacy in their cellphone location data, which is stored privately at the cellphone carrier’s facility. If warrants are not obtained, argues the defendants, police can track the locations of almost any person at any time, for no reason at all, and with no judicial oversight.

The Chief Justice wrote:

Using a cellphone to determine the location of its user can be far more revealing that acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate.

Rabner noted that cellphones and other mobile devices provide “an intimate picture of one’s daily life,” including which “shops, doctors, religious services, and political events” one uses and attends. “This is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cellphone,” he said.

The Court held that the ruling would apply to the defendants of the cases on appeal and prospective cases going forward. The State Attorney General has 30 days to issue guidelines to local law enforcement on how to comply with this ruling.

Interestingly, the court in this case seems to depart somewhat from federal law and the U.S. Supreme Court case in U.S. v. Jones, 132 S. Ct. 945 (2012). In that case, the Supreme Court held that attaching a GPS locator on a suspect’s car was not allowed because it was a trespass on the person’s property, in violation of the 4th Amendment. However, the U.S. Supreme Court also held that a suspect has no reasonable expectation of privacy in his location in a public place. Therefore, it appears that the New Jersey Supreme Court is interpreting the State Constitution as providing a somewhat higher degree of privacy protection than the U.S. Constitution.

Remember, the police and prosecutors have teams of people working to put alleged criminals in jail. In the process, they may overstep their bounds or arrest innocent people.  If you have any question or you or a loved one were accused of a crime, please do not hesitate to contact us for a 100% free consultation.

Raff & Raff, LLP
Attorneys at Law
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Paterson, NJ 07505

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