State of NJ, In the Interest of J.A. New Jersey Supreme Court Decision June 6, 2018
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
New Jersey State police use “find my iPhone” App to locate a defendant who allegedly stole a victim’s cell phone and other personal belongings. In this case the police enlisted the victim whose cell phone was stolen to activate the “find my iPhone “technology on a local computer. The program/technology lead the police to the defendant’s home. The police climbed into an unlocked window without a warrant arguing that there was “immediate action required because:
- the phone was turned off,
- they thought the phone would be destroyed, and
- they were in the middle of a ‘hot’ pursuit.
This Supreme court decision entirely sidesteps the policy argument regarding the technology used to locate the phone, and the police unlawfully climbing in the window of a private citizen’s residence. The. The Supreme Court said there was absolutely no exigent circumstances that would allow the police to climb into the house!!However while they were standing in the living room the brother showed up, who allegedly gave them permission to search the house. The NJ Supreme Court reasoned the brother’s consent stopped the police illegal entry into the house. Further, the brother’s cooperation with the police stopped any additional illegal conduct on behalf of the police.
The big issue in this case that the New Jersey Supreme Court avoided what is the use of the Apple iPhone software that brought the police to the house, and the possible use of any other independent software that the police and law-enforcement community uses as mechanisms to search and locate cell phones and the users of the cell phones. I have written prior blogs on this issue concerning “stingray” and other law-enforcement tools that the state local and federal law enforcement offices are using to locate defendants and track defendants without warrants through the cell phones.
This topic is a hotly contested issue that will be coming up again and again. In this case the police enlisted the victim and allowed her on a separate computer to use the “find my iPhone “ application. In this case the non state action of the victim to bring the police to the scene where the alleged stolen phone was located is a bigger question. The subsequent conduct was the subject of the motion to suppress however the Supreme Court ignored the technology aspect of this case. They really limited their conversation to the family member of the defendant who cooperated and assisted the police once he came home and found the police in their living room.
Ironically, Justice Albin wrote a dissenting opinion arguing that the police presence in the house when the brother arrived, with the defendant handcuffed on the living room sofa, was clearly coercive and as such the entire search should have been deemed an unconstitutional search. I agree with the minority opinion as well!
Jeffrey S. Hark, Esq.
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856-354-0050 Office