State v. Earls420 N.J. Super. 583 (App Div. 2011)
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
Relevant Facts:
The defendant was suspected of committing numerous residential burglaries. Officers obtained an arrest warrant for the defendant and couldn’t locate him. Thus, the police contacted T–Mobile, which was defendant’s cell phone carrier. T–Mobile was able to determine defendant’s general location at any given time because every seven seconds, a cell phone scans for the strongest signal, which is usually from the nearest tower, and then registers with that tower by sending in a signal to identify itself. Officers contact T-Mobile to get defendant’s exact location. After the third contact with T-Mobile, officers located defendant’s car in a motel parking lot and subsequently arrested the defendant.
The trial court determined during a suppression hearing:
That a person generally would have a constitutionally protected privacy interest in preventing his cell phone provider from disclosing the general area where he is located, but that the police inquiries to T–Mobile concerning defendant’s whereabouts were justified under the emergency aid exception to the warrant requirement because the police had an objectively reasonable basis for believing defendant planned to cause physical harm to Gates. Therefore, the court concluded that the police “lawfully obtained” information about defendant’s presence in the general area of the motel and thus lawfully entered defendant’s motel room to arrest him.
The Defendant on appeal argued:
That the monitoring of defendant’s cell phone location was not justified under the emergency aid exception to the warrant requirement, and the police used information obtained from T–Mobile concerning the location of his cell phone to assist in determining where he could be found, the evidence found in the motel room must be suppressed as a fruit of the illegal search of his cell phone information.
The Appellate Division discussed two United States Supreme Court cases that specifically found that the use of beepers and other electronic tracking device used to track defendants did not violate their fourth amendment rights:
The Supreme Court of the United States first addressed the validity of electronic tracking of a criminal suspect in United States v. Knotts, 460 U.S. 276, 103S.Ct. 1081, 75 L.Ed.2d 55 (1983). In that case, the government obtained information that three individuals were engaged in the manufacture of illicit drugs.Id. at 278, 103 S.Ct. at 1083, 75 L.Ed.2d at 59–60. One of the chemicals used in this manufacturing process was chloroform. Ibid. With the consent of the seller of the chloroform, the government installed a beeper in a container of chloroform that was subsequently sold to one of the participants in the drug manufacturing enterprise, Armstrong, who drove his car to the residence of another participant, Petschen, and transferred the container to his car. Ibid.Petschen then drove his car to a cabin occupied by the third participant, defendant Knotts. Ibid. The government was able to track the transportation of chloroform first to Petschen’s house and then to Knotts’s cabin by means of intermittent visual surveillance of Armstrong’s and Petschen’s cars and also by the electronic signals emanating from the beeper. Ibid. Based partly on that evidence, the government obtained a warrant for the search of Knotts’s cabin, which revealed evidence that resulted in his conviction for a drug offense. Id. at 279, 103 S.Ct. at 1084, 75 L.Ed.2d at 60. The court stated that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. at 1085, 75 L.Ed.2d at 62. The court reasoned that the movements of Armstrong’s and Petschen’s cars that eventually led the police to Knotts’s cabin could have been tracked through visual surveillance on public roads and that the “enhancement” of natural, visual surveillance capabilities with the use of “science and technology” did not raise a Fourth Amendment problem. Id. at 282, 103 S.Ct. at 1086, 75 L.Ed.2d at 63.
The Court next addressed the issue of electronic tracking in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). In that case, the government was told by an informant that Karo and three confederates had ordered from him fifty gallons of ether, which is used to extract cocaine from clothing. Id. at 708, 104 S.Ct. at 3299, 82 L.Ed.2d at 537. With the informant’s consent, the government installed a beeper in one of the cans used to transport the ether. Ibid. For the **122 next five *596 months, the government used the beeper, together with visual surveillance, to track the movement of the ether. Id. at 708–10, 104 S.Ct. at 3300, 82 L.Ed.2d at 537–38. During part of this time, the ether was stored in public storage facilities and at other times in private residences. Ibid. The ether was eventually transported to a private residence in Taos, New Mexico. Id. at 709, 104 S.Ct. at 3300, 82 L.Ed.2d at 538.Based partly on evidence obtained through use of the beeper, the government secured a warrant to search the Taos residence. Id. at 710, 104 S.Ct. at 3300, 82 L.Ed.2d at 538. The execution of this warrant revealed cocaine and drug paraphernalia. Ibid. The lower federal courts invalidated the warrant on the ground that it was obtained based on information revealed by the beeper. Id. at 710, 104 S.Ct. at 3301, 82 L.Ed.2d at 538. The Court reaffirmed its holding in Knotts that the use of a beeper or other electronic tracking device for surveillance of a suspect’s or contraband’s movements along highways or in other public places does not violate the Fourth Amendment. See id. at 714–15, 104 S.Ct. at 3302–03, 82L.Ed.2d at 540–42. The Court also concluded that the government had obtained sufficient evidence through such means to uphold the validity of the warrant for the search of the Taos residence. Id. at 719–21, 104 S.Ct. at 3305–06, 82 L.Ed.2d at 544–45. In reaching this conclusion, the Court stated that “it is evident that under Knotts there was no violation of the Fourth Amendment” in the use of the beeper to monitor the movement of the truck on public highways until it reached the Taos residence. Id. at 721, 104 S.Ct. at 3306, 82 L.Ed.2d at 545.
The Appellate Division also looked at other jurisdictions application of the law to similar facts:
Courts in other jurisdictions have relied upon Knotts in concluding that the use of information derived from a suspect’s cell phone to determine his general location does not violate the Fourth Amendment. See, e.g., United States v. Forest, 355 F.3d 942, 950–52 (6th Cir.2004), remanded on unrelated sentencing grounds, 543 U.S. 1100, 125 S.Ct. 1050, 160 L.Ed.2d 1001 (2005); Devega v. State, 286 Ga. 448, 689 S.E.2d 293, 300–01 (2010); Stone v. State, 178 Md.App.428, 941 A.2d 1238, 1249–50 (2008).
The Appellate Division found that:
The defendant had no constitutionally protected privacy interest in preventing T–Mobile from disclosing information concerning the general location of his cell phone. Therefore, we uphold the validity of defendant’s arrest based partly on that information without considering the applicability of the emergency aid exception.
The use by the police of information obtained from T–Mobile concerning defendant’s general location, derived from signals emitted by his cell phone, which together with visual surveillance resulted in discovery of his car in a motel parking lot, did not violate any legitimate expectation of privacy defendant may have had regarding the location of his car.
That a person has no reasonable expectation of privacy in their movements on public highways or the general location of their cell phone, and therefore, there is no basis in this context for construing the New Jersey Constitution more expansively than the Fourth Amendment.
We only hold that the Middletown police did not violate the Fourth Amendment or Article I, paragraph 7, of the New Jersey Constitution in utilizing the cell-site information provided by T–Mobile to assist in locating defendant to execute the warrant for his arrest.
This Case was appealed to the NJ Supreme Court and arguments were heard last week.