NJ High Court Takes Up Police Cellphone Tapping

     TRENTON – The New Jersey Supreme Court will decide whether police can obtain search warrants for cellphone bills without first getting a judge’s approval, a change that could drastically open up such searches.
     The case, State v. Gary Lunsford, involves a narcotics investigation, in which prosecutors attempted to obtain cell phone billing and call records without going through the traditional warrant process. Lunsford, 24, from Asbury Park, was arrested in May 2014 for distributing cocaine.
     During the subsequent prosecution, a Monmouth County grand jury granted a subpoena for Lunsford’s Verizon cell phone billing and call records, which prosecutors sought to paint a picture of Lunsford’s private life.
     Lunsford’s attorney Dean Schneider, of Schneider Freiberger, had argued that the subpoena was too broad and invasive to grant, and that prosecutors were asking a superior court judge to overrule both the New Jersey Supreme Court, which had previously decided subpoenas required going through a judge, and the U.S. Supreme Court, which last year ruled similarly.
     Schneider cited the 1982 case, State v. Hunt, in which New Jersey Supreme Court said warrantless subpoenas of phone records (albeit not of cellular ones) were unconstitutional. He also cited last year’s Riley v. California decision by the U.S. Supreme Court, which unanimously held that warrantless cell phone searches were unconstitutional. In the opinion, Chief Justice John Roberts said “opposition to such searches was in fact one of the driving forces behind the Revolution itself.”
     A Jan. 16 ruling by Monmouth Superior Court Judge John Mullaney Jr. upheld Lunsford’s motion to quash. Mullaney wrote that “[I] cannot consciously accept that a grand jury subpoena duces tectum is sufficient to safeguard the state constitutional privacy rights of the defendant.”
     Mullaney admitted in the ruling that warrantless searches would help speed police investigations, but found that police efficiency did not outweigh warrant requirements, noting that New Jersey law was even more protective of privacy than even the U.S. Constitution.
     On June 5, the New Jersey Supreme Court agreed to hear the case. Oral arguments have not yet been scheduled.
     “This is good news for us,” Schneider said in an interview, “even though it was the prosecutors who appealed. We wanted to get it resolved.”
     Judicial opinions on the issue have varied over the years. Besides the Hunt and Riley cases, the 5th Circuit Court of Appeals also in 2013 weighed in, ruling that court orders were all that were required to obtain cell phone records.
     Lunsford remains in jail.
     “The state is basically saying that a grand jury is essentially a branch of the judiciary. And we just think that’s wrong,” Schneider told Courthouse News.
     Typically, a warrant requires a judge or other judicial officer to weigh probable cause to justify further investigation, which can be a more timely process than a grand jury subpoena. Further, the subpoena does not require notification be provided to the target of the investigation.
     The Lunsford case has received great attention because of its alleged use by state prosecutors as a “test case” for whether warrantless cellphone searches would be allowed.
     Last summer, a leaked memo to county prosecutors obtained by the New Jersey Law Journal revealed that the New Jersey Assistant Attorney General Ronald Susswein wanted to take on the Lunsford case specifically to litigate the decades-old Hunt case to allow cell phone searches without having to obtain communications data warrants.
     The attorney general’s office has not commented on the memo, but in his brief before the court Susswein wrote that “the apparent inconsistency” of state law made it hard to determine whether grand jury subpoenas were allowable in certain circumstances. “The time has come, therefore, to stop assuming what the State Constitution requires and instead ask this court for a definitive ruling on this important question,” he wrote.
     Calls to the attorney general’s office were not returned. Susswein was named New Jersey Law Journal’s “attorney of the year” in May, partly for his efforts to overturn legal precedent in the Lunsford case.
     Alexander Shalom, senior staff attorney for the ACLU-NJ, said the civil rights organization has watched the Lunsford case but has not yet decided on whether it will file an amicus brief. Amicus briefs are due within 75 days of the state Supreme Court agreeing to hear the case. “We take a strong interest in all cases in which the state attempts to roll back privacy protections,” he said in an interview.

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