In State v. Earls, ___ N.J. Super. ___ (App. Div. 2011), the Appellate Division considered an issue that had not been previously resolved in New Jersey:  “whether the use of cell phone site information, obtained by the police without a warrant from a suspect’s cell phone provider to determine his general location, violates the Fourth Amendment or … the New Jersey Constitution.”  Aligning itself with other courts that have considered that issue, the Appellate Division held that “the use of such information to determine a suspect’s general location on public roadways or other places in which there is no legitimate expectation of privacy does not violate the suspect’s constitutional rights.” 

The Middletown Township Police Department was investigating a series of residential burglaries.  During the investigation one victim indicated that his cell phone, which had been stolen, was still in active use.  The police obtained a data warrant to monitor calls on the phone, which led them to discover the identity of the person who had the phone.  After being arrested, that person told the police that he had bought the phone from the defendant.  He also told the police that the defendant had committed several burglaries and was keeping many of the stolen items in a storage unit leased by him or his girlfriend, Desiree Gates.

The police found Gates and told her about their suspicion that stolen property was in the storage unit.  Gates confirmed that she was the girlfriend of the defendant and then went to the storage facility with the police.  Although the defendant paid the rent on the unit and had the only key, it was leased in Gates’s name.  At the facility Gates executed a written consent allowing the police to search the unit.  The police entered the unit and found a significant amount of what seemed to be stolen property.  Based on that discovery and other information from the investigation, the police obtained an arrest warrant for the defendant.  Further, Gates’s cousin told the police that the defendant had threatened Gates, so the police endeavored to find the defendant to arrest him and ensure that he did not harm his girlfriend.

In an attempt to locate the defendant, the police contacted the defendant’s cell phone carrier, T-Mobile.  T-Mobile could determine the defendant’s general location at any time because every seven seconds a cell phone scans for the strongest signal and registers the closest tower by sending a signal to identify itself.  T-Mobile first informed the police that the defendant was in the general area of Route 35 in Eatontown, and an hour and a half later T-Mobile advised the police that the defendant was in Neptune, but the police were not able to locate the defendant.  Later that evening the police again contacted T-Mobile and learned that the defendant was in the general area of Route 9 in Howell.  The police searched the area and found the defendant’s car in the parking lot of a motel.

The police determined which room the defendant was in and called the room and spoke to Gates.  The police then arrested the defendant when he came to the door of his room.  The police saw a flat screen television and luggage in the middle of the room.  Upon entering the room they seized those items and opened a dresser drawer, in which they found stolen property.  After the defendant consented to a search of the luggage from the room, the police discovered more stolen property and marijuana.

The defendant was charged with a number of crimes and filed a motion to suppress the evidence.  The trial court granted the motion in one limited aspect but denied it as to most of the evidence that had been obtained against the defendant.  The defendant then pled guilty to burglary and theft charges but appealed his conviction, arguing that:  1) Gates could not consent to the search of the storage unit; 2) the monitoring of his cell phone location was not permissible under the emergency aid exception to the warrant requirement; and 3) even if the police entry into the motel room was valid, the seizure of the evidence therein was not proper under the plain view exception to the warrant requirement.  The Appellate Division affirmed.

As to the defendant’s first argument, the Appellate Division ruled that Gates – the actual lessee – had the authority to consent to the search of the storage unit even though she did not have a key to the unit.  The court explained that there was sufficient evidence of “mutual use” and “joint access” between the defendant and Gates to justify Gates’s consent to the search.

With respect to the defendant’s argument about the monitoring of his cell phone location, the Appellate Division reviewed caselaw from other jurisdictions that had addressed the validity of electronic tracking of a criminal suspect, including decisions of the United States Supreme Court.  That caselaw demonstrated that courts in other jurisdictions had generally concluded that the use of information derived from a suspect’s cell phone, in order to determine his general location, did not violate the Fourth Amendment.  The Appellate Division ruled that “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.”

Moreover, the court reached a similar conclusion under the New Jersey Constitution, as it stressed that New Jersey courts had “long recognized that the driver of an automobile does not have a constitutionally protected right of privacy in the movements of his car on public roadways.”  The court also recounted that New Jersey courts had permitted police to use modern technology in conducting surveillance in public places.  Accordingly, the Appellate Division declared that “for all the reasons previously set forth 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.”  Narrowing its ruling, the court emphasized that it was not deciding whether a warrant would be needed for the police to obtain cell phone information for the specific location of a suspect, i.e., his or her home.  Rather, the court held only that “the Middletown police did not violate the Fourth Amendment or … 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.”

Lastly, the Appellate Division rejected the defendant’s argument that the plain view exception to the warrant requirement did not support the seizure of the evidence from the motel room.