New Jersey Decision on Cell Phone Location Tracking

State v. Thomas W. Earls (A-53-11) (068765) (July 18, 2013) (7-0):

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. 3Under 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 (2008). In addition, New Jersey case law continues to be guided by whether the government has violated an individual’s reasonable expectation of privacy.

...

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 exception to the warrant requirement applies to the facts of this case, we remand the matter to the Appellate Division for further proceedings.

... We granted defendant’s petition for certification “limited to the issues of the validity of defendant’s arrest based on law enforcement’s use of information from defendant’s cell phone provider about the general location of the cell phone and the application of the plain view exception to the warrant requirement.” 209 N.J. 97 (2011). 
... Article I, Paragraph 7 of the New Jersey Constitution is nearly identical to the Fourth Amendment. Despite the similarity in language, the protections against unreasonable searches and seizures “are not always coterminous.” State v. Hunt, 91 N.J. 338, 344 (1982). ...
...

For the reasons discussed, we conclude that Article I, Paragraph 7 of the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone. Users are reasonably entitled to expect confidentiality in the ever-increasing level of detail that cell phones can reveal about their lives. Because of the nature of the intrusion, and the corresponding, legitimate privacy interest at stake, we hold today that police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.

...

Our ruling today is based solely on the State Constitution. We recognize that Jones and Smith [U.S. Supreme Court decisions interpreting the 4th Amendment to the U.S. Constitution], to the extent they apply,would not require a warrant in this case.

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Professor Jonathan Turley on the George Zimmerman Trial

In Why was Zimmerman overcharged? USA Today (July 14, 2013), Jonathan Turley writes:

"With the verdict, the Zimmerman case entered the realm of legal mythology -- a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and sound bites long ago programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.

"Criminal cases make for perfect and often dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters -- discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. Zimmerman and Martin became proxies in our national debate over race. There was little patience or need for the niceties of rules of proof and adjudication."

Turley then recounts a variety of blunders by the prosecution but concludes:

"Ultimately, it was the case and not the prosecutors that were weak."

Turley then explains why he thinks the evidence did not support guilt beyond a reasonable doubt. But he ends with this observation:

"Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law."

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