New Jersey Supreme Court Requires Law Enforcement To Secure A Warrant Before Obtaining Location Data From Wireless Carriers

On July 18, 2013, the New Jersey Supreme Court unanimously found a state constitutional right to privacy protecting a mobile phone user's location data (as broadcast by a powered-on mobile device). The New Jersey Supreme Court's decision in State v. Earls, 2013 WL 3744221 (N.J. 2013), has far-reaching implications in the criminal context, as the Court now requires law enforcement to secure a warrant before obtaining location data from wireless carriers unless there is an applicable warrant exception. This newly-articulated privacy right under New Jersey law may also impact wireless carriers, although the full extent to which remains to be seen. The State v. Earls decision can be contrasted with the recent July 30, 2013 decision of the United States Court of Appeals for the Fifth Circuit, which held that historic mobile call location data is not specifically protected by the Fourth Amendment to the United States Constitution. See In re: Application of the United States of America for Historical Cell Site Data, No. 11-20884, 2013 WL 3914484 (5th Cir. 2013). The differing outcomes from the Fifth Circuit and the New Jersey Supreme Court highlight the broader privacy protections afforded citizens by the New Jersey State Constitution.

Background

In January 2006, the Middletown (N.J.) Police Department was investigating residential burglaries. The police believed Thomas Earls was responsible and was keeping the stolen property in a storage locker he rented with his former girlfriend, Desiree Gates. Gates led the police to the locker, in which the officers found stolen property. The next day, Gates' cousin informed police that she had not seen Gates since Gates had assisted the police with the investigation, and that Earls, having learned of Gates' cooperation, threatened her well-being. Earls, Slip Op. at 5-6.

The police filed a complaint against Earls and obtained an arrest warrant. During a search for Earls and Gates, the police contacted Earls' wireless carrier, and requested the location of Earls' mobile phone. The police did not obtain a warrant for the mobile phone location data. Earls' wireless carrier provided this information three separate times. The location data led the police to a specific radius in which the officers ultimately located Earls' car in the parking lot of a motel. At 3 a.m., the police called the room in which Earls and Gates were staying and asked Gates to come outside. When Earls opened the door, the police arrested him. Inside the room, the police observed several items that...