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Privacy and Cell Phone Records

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“ No one buys a cell phone to share detailed information about their whereabouts with the police.” State v. Thomas Earls (A-53-11)

On July 18, 2013 the New Jersey Supreme Court decided that the police need a search warrant before they can use cell phone records to track a user’s whereabouts.
“[ W}e 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”
The police were seeking the defendant as the target an investigation in a series of burglaries. A cooperating witness had given them information and a relative told the police the defendant learned of the cooperation and threatened to harm the witness.

After obtaining an arrest warrant for the burglaries , the police began a search for the defendant to ensure the safety of the witness and to execute the warrant. The police learned of a cell phone in his possession, and without first obtaining a search warrant, they contacted T Mobil three times in one night and each time were told of his specific location. AS a result they found the defendant and arrested him..

The New Jersey Constitution Article I, Paragraph 7 is nearly identical to the Fourth Amendment of the United States constitution but on a number of occasions, the New Jersey Supreme Court has found that the State Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment of the U.S Constitution .

The Court held that an individual’s privacy interests under New Jersey law does not turn on whether he or she is required to disclose information to third-party providers to obtain service. . Just as customers must disclose details about their personal finances to the bank that manages their checking accounts, cell-phone users have no choice but to reveal certain information to their cellular provider.

When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. If a customer does not disclose his personnel information he will be denied service; it is not a voluntary act
The New Jersey court focused on reasonable expectation of privacy concerns under Article I, Paragraph 7 of the New Jersey Constitution which protects an individual’s privacy interest in the location of his or her cell phone.
The Court pointed out that as a general rule, the more sophisticated and precise the tracking, the greater the privacy concern. The issue as framed by the Court before was can person reasonably expect that their personal information will remain private..
A basic cell phone operates like a scanning radio using radio waves to communicate between a user’s handset and a telephone network and to connect with the local telephone network, the Internet, or other wireless networks,
Cell phones can be tracked when they are used to make a call, send a text message, or connect to the Internet -- or when they take no action at all, so long as the phone is not turned off. Thus without a warrant the police are able to track the customers whereabouts
People buy cell phones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cell phone to share detailed information about their whereabouts with the police.

Although individuals may be generally aware that their phones can be tracked, most people do not realize the extent of modern tracking capabilities and reasonably do not expect law enforcement to convert their phones into precise, possibly continuous tracking tools. And wherever those mobile devices may be, they continuously identify their location to nearby cell towers so long as they are not turned off.

“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.”
The court concluded 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.

David P Donnelly
NJ criminal defense

Of Counsel
O'Mara Law Firm
25 Sycamore Ave. Suite #2
Little Silver, NJ 07734
732-822-8542

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