By Donald Scarinci | July 24th, 2013 - 10:13am
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Police must obtain a warrant in order to track a person’s cell phone location, according to the Supreme Court of New Jersey. The decision, which received national media attention, may set the bar across the nation, as courts grapple with the issue of cell phone privacy.

While the U.S. Supreme Court has held that police must obtain a warrant to track a suspect using a GPS device, it has not yet considered the use of cell phone data. Therefore, the decision of the Supreme Court of New Jersey is making waves.

The case, State v. Earls, involved a burglary investigation targeting Thomas Earls as the perpetrator. In order to locate him, police requested location data from his cell phone provider, T-Mobile, without securing a warrant. The trace eventually led police to a motel. Police called the room and asked Earls to come outside.

When he opened the door, the police arrested him. The police saw a flat-screen television and several pieces of luggage on the floor of the room, later determined to contain stolen property. Earls sought to suppress the evidence, arguing that the police should have obtained a warrant before tracking his location via cell-tower information.

The NJ Supreme Court ultimately held that the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone. Accordingly, law enforcement must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to track a suspect using a cell phone.

The justices began their opinion by highlighting that cell phones can reveal a lot about us. "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," Chief Judge Stuart Rabner wrote.

"Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used 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,” the justices concluded.

The state Supreme Court acknowledged that the opinion announces a new rule of law by imposing a warrant requirement. It will take effect in New Jersey next month.

How the decision will reverberate across the country remains to be seen. Federal courts considering warrantless cell phone tracking under the Fourth Amendment are divided.  However, as the justices acknowledged in this case, the New Jersey Constitution historically offers greater protection.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

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