On July 18, 2013 the Supreme Court of New Jersey decided State v. Earls, No. A-53-11 (N.J. Sup. Ct. 2013). The court in Earls was deciding “whether people have a constitutional right of privacy in cell-phone location information.” (Id. 2). Justice Rabner, in writing for a unanimous court, acknowledged that Article I, Paragraph 7 of the New Jersey State Constitution offers more protection than the Fourth Amendment of the United States Constitution. (Id.). Furthermore, New Jersey law protects an individual’s right to privacy even if they have to give information to a third-party provider to receive the service (Id. 3, citing State v. Reid, 194 N.J. 386, 399 (2008)).

The standard in New Jersey is whether the government violated an individual’s reasonable expectation of privacy. (Id. 3). In applying this standard to Earls, and reversing the decision of the Appellate Division which found that there was there was not a reasonable expectation of privacy with one’s cell phone, the court found that when a person purchases a cell-phone that person does not “buy [a] cell phone[] to serve as [a] tracking device[] or reasonably expect them to be used by the government in that way.” (Id.). The court acknowledge that New Jersey case law has previously found that when a person signs up for a cell-phone or other providers where that person is required to make certain disclosures that person is not doing so to promote releasing of their personal information. (Id. 27).

The court argued that using a cell phone to determine a person’s location is much more invasive and revealing than other ways to determine location that the court had previously determined required the police to obtain search warrant by showing probable cause (i.e. toll billing, bank, or Internet subscriber records). (Id. 29). The court likened using cell-phone location services to “using a tracking device [that] 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.” (Id., citing United States v. Jones, 565 U.S. ___, ____ (2012) (Alito, J., concurring). The personal information that could be learned by reviewing such information can “provide an intimate picture of one’s daily life.” (Id. 30, citing Jones, at ____ (Sotomayor, J., concurring)).

In acknowledging that the cases from the Supreme Court would have found differently than the Supreme Court of New Jersey, the Supreme Court of New Jersey was once again strengthening Article 1, Paragraph 7 of the New Jersey Constitution in relation to the Fourth Amendment of the U.S. Constitution. The court acknowledged that the ruling in Earls “announces a new rule of law by imposing a warrant requirement.” (Id. 34).

So what does this mean for the people of New Jersey? Can the police never use third-party location information? No. In order for the police to access the location information of a cell-phone they must obtain a search warrant by showing probable cause to the appropriate authority. Absent probable cause police must show that there were exigent circumstances as to why a search warrant was not acquired.  If you have questions we are happy to help call us today at Jayson Law Group LLC. We serve all over New Jersey including Union, Newark, Elizabeth, Hillside and more.