Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
Issue: What does New Jersey Law Enforcement have to do to get your cell phone records??
Do they have to get a warrant signed off by a judge or is a Grand Jury Subpoena enough?
The New Jersey Supreme Court decides law enforcement needs to get a warrant signed off by a Judge!
On August 1, 2016, the New Jersey Supreme Court decided New Jersey law enforcement must follow the longstanding procedures to obtain a communications data warrant when law-enforcement wants cell phone billing records which always include incoming and outgoing calls use by the defendant to conduct drug transactions.
In this case the defendant had his cell phone searched based on suspected criminal activity. Initially the Monmouth County prosecutors office issued grand jury subpoenas to a cell phone provider requesting the defendant’s billing information related to his/her cell phone number. On that bill information pertaining to all the defendant’s incoming and out going called numbers and duration of those calls is located. Once the prosecutors office obtained all of the incoming and outgoing calls and date and time of those calls they then attempted to arrest other individuals that the defendant was “transacting business with”. As a matter of procedure when the Monmouth County Prosecutors Office issue the subpoena to Verizon Wireless for the cell phone billing records they noticed the defendant and his attorney. They did provide the defense attorney the opportunity to quash the subpoena. The trial court entertain a motion and did in fact quash the subpoena on January 16, 2015.
The trial court based its decision on the New Jersey Supreme Court decision of State v. Hunt , 91 NJ 338 (1982). The case was then taken over by the Attorney General’s office who appeal the denial of the request for the subpoena by the trial court. The Appellate Division denied the request to appeal and the Attorney General’s office filing a motion for leave to appeal to the New Jersey Supreme Court. The essence of the defendant’s argument is that a affidavit in support of the search warrant and review by the neutral and attached judge “process” outlined in the Communications Data Warrant procedure is required here. The call detail records in the billing records “paint a very specific picture of the defendants private life”. The defendant argued the warrant requirement established in Hunt and the New Jersey Communications Date Warrant is an adequate means of protection against the unfettered investigatory demands of law-enforcement.
The court recognized the constitutionally protected right to privacy in various types of personal information including now the privacy interest attached to cell phone records and cell phone as a GPS locating devise. The court recognize the tension developed between investigating criminal activity while balancing the individual privacy rights of persons in possession of cell phones.
The court commenced its analysis with the foundational case of State v. Hunt, 91 NJ 338, (1982) which established the greater entitlement to privacy under New Jersey law to phone records. That court established the communications data warrant procedure mandating law-enforcement obtain a separate warrant in order to obtain telephone billing records. The long-standing independent judiciary review requirement based on law enforcement showing of probable cause in the form of an affidavit prior to the issuance of a warrant was extended to hotel room phones as well.
The court recognized the protectable privacy interest in account holders of cell phone records similarly to New Jersey citizens reasonable expectation of privacy in their bank account and credit card records. However the court previously did not require a separate Communications Data Warrant for the bank and credit card record information. The court allowed grand jury subpoenas based on a relevancy standard to be sufficient to protect the individuals privacy interest in view of law enforcement legitimate investigatory need. Obviously, the evidence produced through the grand jury subpoena could be squashed by the court on the appropriate motion of a defendant if and when such evidence is attempted to be introduced to a jury at the time of trial. This would become the subject of a rule 104 evidentiary airy hearing and the standard burden of proof would be relevancy versus prejudicial a fact. That is exactly what happened here at the trial level.
However cell phone bills, similar to telephone records, are now being viewed differently. The long standing position regarding telephone billing records is that the law requires law-enforcement to meet the higher threshold to demonstrate probable cause before a neutral and detached judge. The prior case law addressing this issue again balanced the individuals privacy concerns against invalid law enforcement Ames. That case law requires the search warrant based on probable cause via affidavit to be presented to the judge.
Prior to addressing the cell phone record issue the New Jersey Supreme Court turn to it’s a own decision in State v Earle, 214 NJ 564 (2013) which required law enforcement to obtain a search warrant from a judge prior to making any attempts to track a defendant’s location through a cell phone.
This New Jersey Supreme Court then turned to the legislatures previous amendment to New Jersey’s Wiretap and Electric Surveillance Control Act. The legislature amended the wiretap Act to enable law enforcement to obtain telephone records through a grand jury subpoena only. This Supreme Court found the lower level of judicial review, after-the-fact, inconsistent with its decision in Hunt respecting New Jersey citizens privacy interest related to cell phone tracking. The Court determined it had an independent obligation and responsibility to interpret the meaning of New Jersey’s constitution and the protections it affords to New Jersey residents. As a result, this court determined that the state must apply for a court order under the New Jersey CDW Act in order to secure cell phone billing records. As per the Act the State must demonstrate to a judge specific and articulable facts showing there is a reasonable grounds to believe that the phone records sought are relevant and material to an ongoing criminal investigation. The requested records must cover a finite period of time which does not extend beyond the date of the order. This court believes judicial review of such warrant applications and made ex-parte (without defense counsel and or his/her attorney) will guard against abuse and route out bulk request for information that are not connected to the criminal investigation.
Jeffrey S. Hark, Esq.