Kathleen Hopkins
December 8, 2014
This article originally appears at the following website: app.com
Whom do you call on your cellphone?
How long do you spend talking to them?
How often do you talk to them?
And how far must the government go to find out this information?
The last question is one that will be considered by a judge in Monmouth County in a case that legal experts say will have statewide implications on individual privacy rights — and is being used by the state to push the boundaries of what law enforcement officers can view without a warrant.
It comes at a time when the FBI has criticized Apple and Google for developing smartphone encryption that would hamper law enforcement efforts to gain access to information, such as photos, messages and Web histories that are stored on smartphones, even with a search warrant. Apple also announced that it would no longer unlock iPhones at the request of law enforcement officials.
The Monmouth County case, to be considered later this month by Superior Court Judge John T. Mullaney Jr., involves Gary Lunsford, a 24-year-old Asbury Park man who is facing cocaine distribution charges after being arrested with another man in May.
It is one that is known as a “case of first impression,” meaning it raises a legal issue that has never before been considered by New Jersey courts.
In it, the state Attorney General’s Office is seeking to buck a state Supreme Court ruling that has for decades required law enforcement officers to first go to a judge to get a warrant before they can obtain an individual’s telephone billing records in the course of a criminal investigation.
The Attorney General’s Office, seeking to have that requirement overturned, has taken on the Lunsford matter as a test case.
But defense attorneys are concerned that allowing law-enforcement officers access to cellphone records in criminal investigations without first obtaining a warrant would erode individual privacy rights.
“What prevents them from just going on a fishing expedition?” asks Dean I. Schneider, a Red Bank attorney representing Lunsford. “It’s like the police having the right to enter your home without probable cause and look around. It’s a fundamental privacy right.”
A 1982 state Supreme Court ruling in a case known as State vs. Hunt said that individuals have privacy interests in their telephone billing records that are protected by the New Jersey constitution, and that seizure of those records by law enforcement without a warrant “can pose significant dangers to political liberty.”
Assistant Attorney General Ron Susswein now argues in court papers that the state’s highest court never considered whether a person’s privacy interests can be equally protected through the process of getting a grand jury to issue a subpoena to obtain those records.
In June, Susswein sent a memorandum to New Jersey’s county prosecutors seeking a case that could put that question before a court and eventually lead to the state’s highest court reconsidering its decision in the Hunt case.
That question is now before Mullaney in the Lunsford case, for which a hearing is scheduled on Dec. 24.
Susswein argues in court papers that the issuance of a grand jury subpoena adequately protects a person’s privacy rights because grand jury proceedings are secret.
But criminal defense attorneys see it differently.
“We’re saying we disagree with that — that you’re trampling on the rights of an individual, and those rights can only be protected by getting a warrant,” Schneider said.
Joseph D. Rotella, a Newark attorney who is president of the Association of Criminal Defense Lawyers of New Jersey, explained the difference between a grand jury subpoena and a warrant.
“If the prosecutor thinks that you may have committed a crime, they can bring it before a grand jury investigating its case to obtain the information, and unless the grand jury returns an indictment, you would never know what (information) the government collected,” Rotella said. “They don’t even need reasonable suspicion.”
To obtain a warrant, law enforcement must convince a judge that there is probable cause to believe a crime has been committed or is being committed and that the information being sought is needed to investigate the crime, Rotella said.
“It prevents overreaching by the government against its citizens,” Rotella said of the judicial review needed to obtain a warrant.
“Cellphones provide a window into your life — who you’re talking to and how often you speak to them,” Schneider said. “The state has no right to know who you are talking to. Before they can infringe upon that fundamental (privacy) right, they have to show probable cause to a judge and get a warrant.”
“We’re seeking to get the court to re-examine the decision in State vs. Hunt in light of more recent New Jersey Supreme Court rulings regarding other third-party business records, including bank records and Internet service provider records, where the New Jersey Supreme Court ruled a grand jury subpoena is sufficient to protect our state constitutional privacy requirements,” said Peter Aseltine, a spokesman for the attorney general’s Division of Criminal Justice.
Those include the state Supreme Court’s ruling in 2005 in State vs. McAllister, which said a grand jury subpoena is all that is needed to obtain an individual’s financial records from banks and credit-card companies; the high court’s ruling in 2008 in State vs. Domicz in 2006, which said the same thing about obtaining an individual’s electricity usage records from a utility; and a similar decision by the high court in 2008 in State vs. Reid, pertaining to records from Internet service providers.
A 2013 state Supreme Court ruling in State vs. Earls, however, held that a warrant is still required to obtain any cellular telephone records that reveal a person’s whereabouts.
In the Lunsford case, the state is not seeking information about the defendant’s whereabouts when he was using his cellular telephone but instead is seeking billing and call-detail records.
Schneider points out in his legal filing that the U.S. Supreme Court, in a landmark ruling in June in a case known as California vs. Riley, declined to approve a warrantless search of data contained in a cellular telephone of someone who had just been arrested.
But Susswein, arguing for the attorney general in his brief, said enabling law enforcement to obtain cellular telephone billing records by grand jury subpoena instead of a warrant would speed investigations by making necessary information available early on, long before investigators are able to uncover enough probable cause to obtain a warrant.
“The inability to help identify potential targets and witnesses near the outset of an investigation can significantly lengthen the time needed to complete a thorough investigation, perhaps by as long as weeks or even months,” Susswein wrote in his brief. “Aside from undermining the interests of public safety by allowing criminal conspiracies to continue to operate while the investigation runs its course, the delay occasioned by the Hunt warrant requirement can, ironically, work against the interests of persons who might quickly be exonerated and thus spared the anxiety and expense of a more protracted investigation.”
Defense attorneys say shortcuts for police should not come at the expense of individual rights.
“It’s so simple to get a warrant,” Schneider said.
“To me, all they are trying to do is to make it less burdensome for them to do their job and make it easier for them to get the information they want,” said Rotella.
Contributing: USA Today
Kathleen Hopkins: (732) 643-4202;
Anyone wishing further information on privacy rights and search and seizure law is invited to contact attorney Dean I. Schnieder through his law firm’s website: www.schneiderfreibergerlaw.com.
