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<div class="">July 18, 2013</div>
<h1>New Jersey Supreme Court Restricts Police Searches of Phone Data</h1>
<h6 class="">By
<span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/z/kate_zernike/index.html" rel="author" title="More Articles by KATE ZERNIKE"><span>KATE ZERNIKE</span></a></span></h6>
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<p>
Staking out new ground in the noisy debate about technology and privacy
in law enforcement, the New Jersey Supreme Court on Thursday ordered
that the police will now have to get a search warrant before obtaining
tracking information from cellphone providers. </p>
<p>
The ruling puts the state at the forefront of efforts to define the
boundaries around a law enforcement practice that a national survey last
year showed was routine, and typically done without court oversight or
public awareness. With lower courts divided on the use of cellphone
tracking data, legal experts say, the issue is likely to end up before
the United States Supreme Court. </p>
<p>
The New Jersey decision also underscores the extent of the battles over
government intrusion into personal data in a quickly advancing digital
age, from small town police departments to the <a title="Articles about the surveillance." href="http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_security_agency/index.html">National Security Agency’s surveillance</a> of e-mail and cellphone conversations. </p>
<p>
Several states and Congress are considering legislation to require that
warrants based on probable cause be obtained before investigators can
get cellphone data. Montana recently became <a title="Article about the measure." href="http://blogs.wsj.com/law/2013/06/21/montana-requires-warrants-for-cell-phone-tracking/">the first state to pass such a measure into law</a>. The California Legislature approved a similar bill in 2012, but <a title="Article about the veto." href="http://rt.com/usa/california-privacy-bill-law-520/">Gov. Jerry Brown vetoed it</a>, saying it did not “strike the right balance” between the needs of law enforcement and the rights of citizens. </p>
<p>
The <a title="Article about the ruling." href="http://www.abajournal.com/news/article/cops_cant_search_cellphone_seized_during_arrest_florida_supreme_court_says_/">Florida Supreme Court ruled in May that the police could seize a cellphone</a>
without a warrant, but needed a warrant to search it. And a case before
the United States Court of Appeals for the Fourth Circuit, in Richmond,
Va., is weighing whether investigators acted legally when they got a
court order, but not a warrant, to obtain 221 days of cellphone location
data for suspects in an armed robbery case in Maryland. </p>
<p>
“This type of issue will play out in many jurisdictions for the simple
reason that cellphones are so prevalent in daily life,” said Peter G.
Verniero, a former New Jersey attorney general and State Supreme Court
justice. “The decision affects just about everybody.” </p>
<p>
“Law enforcement is trying to keep up with technology, as well they
should,” he added. “It’s very legitimate for law enforcement to use
technology, but this court decision is a strong reminder that
constitutional standards still apply. The courts have to adapt, and law
enforcement has to adapt.” </p>
<p>
The ruling involved a case that began with a string of burglaries in
homes in Middletown, N.J. A court ordered the tracing of a cellphone
that had been stolen from one home, which led to a man in a bar in
nearby Asbury Park, who said his cousin had sold him the phone, and had
been involved in burglaries. The police then used data they got from
T-Mobile to locate the suspect, Thomas W. Earls, at three points on a
subsequent evening, tracking him to a motel room where he was found with
a television and suitcases full of stolen goods. </p>
<p>
In a unanimous decision, the State Supreme Court said that when people
entered cellphone contracts, “they can reasonably expect that their
personal information will remain private.” </p>
<p>
The justices recognized that this departed somewhat from federal case law. But they relied in part on <a title="Article about the ruling." href="http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?pagewanted=all">a United States Supreme Court decision last year</a>
that the police could not attach a Global Positioning System to a
suspect’s car without a warrant. A cellphone, the New Jersey justices
said, was like a GPS device. </p>
<p>
“Using a cellphone to determine the location of its owner can be far
more revealing than acquiring toll billing, bank, or Internet subscriber
records,” said the opinion, written by Chief Justice <a href="http://topics.nytimes.com/top/reference/timestopics/people/r/stuart_rabner/index.html?inline=nyt-per" title="More articles about Stuart Rabner." class="">Stuart Rabner</a>.
“Details about the location of a cellphone can provide an intimate
picture of one’s daily life and reveal not just where people go — which
doctors, religious services and stores they visit — but also the people
and groups they choose to affiliate with. That information cuts across a
broad range of personal ties with family, friends, political groups,
health care providers and others.” </p>
<p>
Besides establishing a firmer legal bar for the police to obtain
cellphone data, the Supreme Court also remanded the case to the appeals
court to determine whether the evidence collected using the cellphone
records could be admitted in court under an “emergency aid exception” to
the requirement for a warrant. </p>
<p>
Last year, <a title="Article on the survey." href="http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?pagewanted=all">the American Civil Liberties Union reviewed records</a>
from more than 200 local police departments, large and small, and found
that they were aggressively using cellphone tracking data, so much so
that some cellphone companies were marketing a catalog of “surveillance
fees” to police departments, to track suspects or even to download text
messages sent to a phone that had been turned off. Departments were
using the information for emergency and nonemergency cases. </p>
<p>
Some departments had manuals advising officers not to reveal the
practice to the public. Others defended its use. The police in Grand
Rapids, Mich., for example, had used a cellphone locator to find a
stabbing victim who was in a basement hiding from his attacker. </p>
<p>
The law has been slow to keep up. The Florida decision in May rejected
the reasoning of a lower court that had based its approval of cellphone
tracking on a 1973 United States Supreme Court case that allowed heroin
found in a suspect’s cigarette pack to be introduced as evidence.
“Attempting to correlate a crumpled package of cigarettes to the
cellphones of today is like comparing a one-cell organism to a human
being,” the decision said. </p>
<p>
Nationally, court decisions about cellphone tracking have considered
whether it comports with the Fourth Amendment, which guards against
unreasonable searches and seizures. But the justices in New Jersey based
their decision on the State Constitution, which affords greater privacy
protection. The state court has previously ruled in favor of electronic
privacy. In 2008, it said that police had to obtain a subpoena from a
grand jury to obtain Internet provider records. </p>
<p>
“The inescapable logic of this decision should be influential beyond New
Jersey because it makes complete sense as to an individual’s reasonable
expectation of privacy,” said Rubin Sinins, who filed a friend of the
court brief on behalf of the American Civil Liberties Union and the New
Jersey Association of Criminal Defense Lawyers. </p>
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