Defendant Thomas Earls was arrested while in possession of stolen property by police who used location information which they received from his cell phone provider without obtaining a warrant. Earls moved to suppress the evidence arising out of his arrest, and his case ultimately went to Supreme Court of New Jersey.
EPIC filed a supplemental “friend of the court” brief to the Court, arguing that individuals have a legitimate expectation of privacy in the location data on their cell phones. The Court made note of the recent GPS tracking case, United States v. Jones, but ultimately based its decision on the New Jersey Constitution, and held that “that police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.”
Following re-argumentation in the case, in July 2013 the N.J. Supreme Court reversed the Appellate Division and found, under the State Constitution’s privacy protections, “that individuals have a reasonable expectation of privacy in the location of their cell phones.” They noted that EPIC had provided “helpful details about the current state of cell-phone technology,” which apparently helped it understand the issue in light of GPS tracking jurisprudence, rather than only analogizing to how courts apply the third-party doctrine to the placing of traditional phone calls. It remanded to the Appellate Division questions of whether an emergency or other exemption might apply. In a per curiam decision, the Appellate Division held that these exceptions did not apply and the resulting search was constitutionally impermissable.
Was defendant’s arrest valid where law enforcement officers used information from defendant’s cell phone provider about the general location of the cell phone; and did the plain view exception to the warrant requirement apply in these circumstances?
The issue presented in Earls is whether the government can constitutionally obtain and use locational information from a defendant’s cell phone provider to track a suspect’s location without a warrant under the Fourth Amendment. The government engages in this investigatory technique frequently, although its constitutionality is still in question in many courts.
Thomas Earls, the defendant in State v. Earls, was a suspect in a string of residential burglaries. In order to locate Earls, police contacted his cell phone carrier. Because every seven seconds, a cell phone scans for the strongest signal and then identifies itself with that cell phone tower, the police could use these tower logs to track Earls’ approximate location. The cell phone carrier notified the police three separate times of Earls’ location; on the third the police found Earls’ car in a motel parking lot within the targeted area. The police found Earls inside his hotel room along with a flat screen television and other stolen property.
Earls filed a motion to suppress this evidence. The court denied this motion after a three-day evidentiary hearing. Earls then entered a plea bargain, agreeing to seven years of imprisonment. After this, he filed a motion to reopen his appeal challenging the court’s denial of his motion to suppress.
The N.J. appellate court denied this motion and ruled that the locational tracking was constitutional because the police monitoring took place on public highways, based in large part on United States v. Knotts and United States v. Karo. However, on January 23, 2012, the U.S. Supreme Court decided Jones. In this decision, a majority of the Court stated that some types of locational tracking, even when done entirely on public highways, can infringe upon a reasonable expectation of privacy. Thus, the ruling in Earls must be re-evaluated.
EPIC has an interest in promoting privacy in digital spaces by upholding robust Fourth Amendment protections. Location privacy is becoming an important issue in Fourth Amendment law as more devices store location data that can later be recovered, intercepted, or otherwise obtained by law enforcement or private parties. EPIC recently filed a “Friend of the Court” brief in US v. Jones, a Supreme Court case involving a Fourth Amendment challenge to the government’s unwarranted use of GPS tracking technology during a criminal investigation.
The New Jersey Supreme Court held oral arguments in Earls on October 21, 2012. Then on November 21, 2012, the Court requested additional briefing on six specific questions related to the retroactive application of the warrant requirement, the current state of technology of related to cell phone location tracking, and the reasonable expectation of privacy in cell phone location under federal and state constitutions.
New Jersey Supreme Court
- Superior Court of New Jersey Appellate Division Per Curium, Unpublished 2014
- New Jersey Supreme Court Decision Following Reargument, 2013
- Opinion, App. Div. 2011
- EPIC Supplemental Brief
- ACLU-NJ Supplemental Brief
- Second Supplemental Brief on Behalf of the State of New Jersey
- Defendant Earls’ Letter in Response to the Court’s Order Requesting Supplemental Briefing
- Order Requesting Supplemental Briefing
- Supplemental Brief on Behalf of Defendant-Petitioner
- Supplemental Brief on Behalf of the State of New Jersey
- EPIC Amicus Brief
- ACLU-NJ Amicus Brief
New Jersey Appellate Court
- Lower Court Opinion, State v. Earls, 22 A.3d 114 (2011).
Related Cases: Reasonable Expectation of Privacy
- United States v. Katzin, 732 F.3d 187 (3d Cir. 2013).
In United States v. Katzin, the United States Court of Appeals for the Third Circuit held that police must obtain a warrant before attaching a GPS device to a vehicle. In light of United States v. Jones, in which the Supreme Court held that attaching a GPS device to a vehicle constituted a search under the Fourth Amendment, the Third Circuit held that such a search did not fit any exception to the warrant requirement. The Court rejected the government’s arguments that a “reasonable suspicion” or “probable cause” justified the warrantless search. Katzin, 732, F.3d at 198-203. Unlike a pat-down or automobile search, which are limited to a discreet moment in time and to finding evidence already in existence, the Court found that a GPS search was “vastly broader.” Id. at 200-01. The court quoted Sotomayor’s concurrence in Jones to establish that GPS tracking can generate a detailed record of people’s associations. The Court further distinguished a GPS search as creating “a continuous police presence for the purpose of discovering evidence that may come into existence . . . at some point in the future.” Id. at 203. The Third Circuit is currently hearing an en banc review of the Katzin decision and heard oral argument in the case on May 28, 2014.
- United States v. Jones, 132 S.Ct. 945 (2012).
In United States v. Jones, the Supreme Court unanimously ruled that the FBI violated the Fourth Amendment when it attached a GPS device to a suspect’s car and tracked his movements for 28 days. In the five-Justice majority opinion, Justice Scalia argued that because the police physically invaded the suspect’s car to attach the device, the government had violated the suspect’s property-based Fourth Amendment rights and the Court need not determine if the government had violated a reasonable expectation of privacy. Id. at 953. Justice Alito, joined by three Justices, authored a concurrence arguing that the majority had decided the case “based on 18th-century tort law,” which obscured the true issue in the case of whether the government’s electronic GPS surveillance violated a citizen’s reasonable expectation of privacy. Id. at 957-58. Alito concluded that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” and in this case the 28 day surveillance had violated the Fourth Amendment. Id. at 964. Justice Sotomayor joined the majority opinion’s narrow ruling, but in a separate concurring opinion supported much of the substance of Justice Alito’s concurrence. Id. at 954-955. Jones was decided on narrow grounds, but with five Justices acknowledging a reasonable expectation of privacy in the collection and aggregation location data which could be observed by the public, the case signals a significant development in Fourth Amendment law.
- United States v. Jacobsen, 466 U.S. 109 (1984).
In United States v. Jacobson, the Supreme Court ruled that where a private party searches a package and reveals that information to the government, the government’s subsequent warrantless search is reasonable so long as it does not “exceed the scope” of the private search. In Jacobson, employees of a private shipping company partially tore a package open and discovered a white powder. Id. at 111. The company repacked the package and called a DEA agent who, without a warrant, searched the package and tested the powder to determine if it was cocaine. Id. The Supreme Court addressed the issues of whether either of these two actions by the agent, opening the package and testing the substance, violated the Fourth Amendment. Id. at 118. As an initial matter, the Court held that a private search of the package cannot violate the Fourth Amendment, as there is no state action. Id. at 113. The Court found that because of search by the private actors, the owner of the package no longer had a reasonable expectation that the government would not search the package. Id. at 119. Next, the Court ruled that testing the substance to determine if it was cocaine did not violate the Fourth Amendment, as there is no reasonable expectation of privacy in whether a substance one possesses is or is not cocaine. Id. at 123. The Court analogized the test to using drug-sniffing dogs to smell airport luggage for drugs, which does not require a warrant. Id. at 124. Because “the federal agents did not infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct,” the warrantless search did not violate the Fourth Amendment.
- United States v. Karo, 468 U.S. 705 (1984).
In United States v. Karo, the Supreme Court held that: (1) the installation of a “beeper” tracking device into a container that is then transferred to an individual does not interfere with his or her privacy or possessory interests and thus does not constitute a search or seizure for Fourth Amendment purposes; and (2) police must obtain a warrant before using a “beeper” tracking device to obtain location information from inside a private residence. The Court reaffirmed its holding in Knotts that there is no legitimate expectation of privacy in one’s movements while traveling on public highways. Karo, 468 U.S. at 720-21 (citing United States v. Knotts, 460 U.S. 276, 281-82 (1983)). In Knotts, the Court held that information obtained from a beeper tracking device that could have been observed with the naked eye from a public place did not present a Fourth Amendment interest. In Karo, the Court held that a warrant was required to use the same device to obtain information that could not be seen with the naked eye from outside a private residence. Karo, 468 U.S. at 714-15. However, the Court decided that the warrant to search the suspect’s home, obtained using information from the unconstitutional search, was nonetheless valid because “the officers could have secured the warrant without relying on the beeper to locate [the evidence] in the house sought to be searched.” Id. at 719.
- United States v. Knotts, 460 U.S. 276 (1983).
In United States v. Knotts, the Supreme Court held that monitoring the signal of a beeper, placed inside of a container, to track the container’s location as it traveled in a defendant’s vehicle to his home, was not a “search” or “seizure” under the Fourth Amendment. Knotts, 460 U.S. at 276. The Court reversed the Eight Circuit’s decision to suppress evidence obtained from tracking the beeper. It held that “a person travelling in an automobile on public thoroughfares has no expectation of privacy in his movements from one place to another.” Id. at 281-82. Justice Rehnquist, writing for the majority, wrote that when the defendant “traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction . . . and the fact of his final destination.” Id. The Court held that because all of the information collected from the beeper was information that police could have observed from the public places along the defendant’s route, the fact that they used technology to gather this information did not change the fact that the defendant had no reasonable expectation of privacy in his movements. Id. at 282.
Related Cases: Cell Site Location Information
- In re US for Historic CSLI, No. 11-mc-00223 (previously 10-mc-00891, 00990, 00998) (S.D. Tex. Nov. 11, 2011), rejection of the government’s Section 2703(d) application on appeal to the Fifth Circuit, Case No. 11-220884.
- In re US for an Order Authorizing Release of Historical Cell-Site Info., 2011 U.S. Dist. LEXIS 93494 (E.D.N.Y. Aug. 22, 2011).
- In re US Order Authorizing Release of Historical Cell-Site Info., 736 F. Supp. 2d 578 (E.D.N.Y. 2010).
- In re US for an Order: Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 2006 U.S. Dist. LEXIS 45643 (N.D. Ind. July 5, 2006).
- In re Application of US for an Order Authorizing Installation and Use of a Pen Register, 402 F. Supp. 2d 597 (D. Md. 2005).
- In re Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 134 (D.D.C. 2006).
- In re United States, 411 F. Supp. 2d 678 (W.D. La. 2006).
- In re US for an Order Authorizing Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202 (E.D.N.Y. 2008).
- In re US for an Order Authorizing Use of a Pen Register, 396 F. Supp. 2d 294 (E.D.N.Y. 2005).
- People v. Hall, 14 Misc. 3d 245 (N.Y. Sup. Ct. 2006), aff’d People v. Hall, 86 A.D.3d 450 (N.Y. App. Div. 1st Dep’t 2011).
Related Cases: Third Party Doctrine
- Smith v. Maryland, 442 U.S. 735 (1979).
- United States v. Miller, 425 U.S. 435 (1976).
Print Media and Blogs
- In New Jersey, a Win for Privacy, N.J. Star-Ledger, July, 21, 2013.
- N.J. Supreme Court Says Police Need Warrants to Track Suspects’ Cellphones, Anthony Campisi, Northjersey.com, July 19, 2013.
- N.J. High Court: No Cell Phone Tracking Without Warrant, Chris Mondics, Philly.com, July 20, 2013.
- New Jersey Court: No Cellphone Tracking Without Warrant, Associated Press, July 19, 2013.
- New Jersey Supreme Court Rules Warrants Needed for Phone Tracking, John Ribeiro, PC World, July 19, 2013.
- N.J. Court: Police Need Warrant for Your Cell Phone Data, Loreno Franceschi-Bicchierai, Mashable, July 19, 2013.
- Police Can Use Cell Phone Signal to Find a Suspect, State Appeals Court Rules, MaryAnn Spoto, N.J. Star-Ledger, July 12, 2011.
- Cell Phone Data and Expectations of Privacy, Peter A. Crusco, Texas Lawyer, Oct. 27, 2011.
- Court Rules that Warrant is Required for Stored Cell Site Location Information, Greg Nojeim, Center for Democracy and Tech., Sept. 12, 2011.
- Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional, Julia Angwin, Wall St. J., Nov. 16, 2011.
- Texas Judge Says Warrantless Cellphone Tracking Violates Fourth Amendment, Saga Continues, Amar Toor, Endgadget, Nov. 18, 2011.
- DoJ: Stingray Cellphone Tracking Device Falls Under Fourth Amendment, but Don’t Ask About It, Amar Toor, EndGadget, Nov. 6, 2011.
- Feds Shift Defense of Cellphone Tracking, Jennifer Valentino-Devries, Wall St. J., Nov. 3, 2011.
- Feds’ Use of Fake Cell Tower: Did It Constitute a Search?, Kim Zetter, Wired, Nov. 3, 2011.
- Cell Phone Surveillance System, Bruce Schneier, Schneier on Security, Oct. 31, 2011.
- Netizen Report: Occupy the Net Edition, Rebecca MacKinnon, Global Voices Online, Oct. 19, 2011.
- It’s Time for Congress to Prohibit and Criminally Punish the Sale of our Cell Phone Records: “Pretexting” for Phone Numbers is a Serious Privacy Violation, Anita Ramasastry, Findlaw, Jan. 23, 2006.
Law Review Articles and Books
- Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact, 26 Berkeley Tech. L.J. (forthcoming Mar. 2012).
- Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L. Rev. 2105 (2009).
- Whitfield Diffie & Susan Landau, Communications Surveillance: Privacy and Security at Risk, 52 Comm. of the ACM 11 (2009).
- Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008).
- R. McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409 (2007).
- Jerry Kang & Dana Cuff, Pervasive Computing: Embedding the Public Sphere, 62 Wash. & Lee L. Rev. 93 (2005).
- Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557 (2004).
- Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, 52 Stan. L. Rev. 1373 (2000).
- Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998).