State v. Earls
420 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.
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