On June 5, 2015 the New Jersey Supreme Court granted certification to hear our client Gary Lunsford’s case involving the warrantless search of his cell phone records. This case has already been heard by the Monmouth County Superior Court where we won an astounding victory for our client when Judge Mullaney granted our motion to quash the subpoena for telephone records. The New Jersey Law Journal recently ran an article, the contents of which are reprinted below:
Justices to Mull Warrantless Access to Phone Records
Michael Booth, New Jersey Law JournalJune 12, 2015
The New Jersey Supreme Court has agreed to hear arguments over whether prosecutors should be allowed to obtain criminal suspects’ telephone records without first obtaining a warrant.
The court agreed to hear the state’s appeal in a test case, State v. Lunsford, on June 5.
The Attorney General’s Office has superseded the Monmouth County Prosecutor’s Office in the case, in which the defendant, Gary Lunsford, is fighting a subpoena of his Verizon cellphone records.
Assistant Attorney General Ronald Susswein said in papers filed last year in Superior Court that the Attorney General’s Office intervened “for the limited purpose of litigating whether the New Jersey Constitution allows prosecutors to use a grand jury subpoena duces tecum rather than a communications data warrant to obtain telephone connection records.”
Susswein also was the author of a June 2010 memo addressed to county prosecutors that sought their help in persuading the court to revisit its 1982 ruling in State v. Hunt, where the court ruled that law enforcement must obtain a warrant before demanding access to suspects’ telephone billing records.
Paul Loriquet, a spokesman for Acting Attorney General John Hoffman, said the office is “gratified” that the court agreed to hear the state’s appeal.
“We are not asking the court to reconsider whether the state constitution affords protection to telephone connection records kept by a telephone service provider. Rather, the issue is what process is needed to safeguard those state constitutional privacy rights,” Loriquet said in a statement.
He said that in prior rulings involving Internet records and banking and financial records, the court has rejected arguments that warrants based on probable cause are required to obtain those records.
“We believe the same rule should apply to telephone billing information, and that the New Jersey statute that expressly authorizes prosecutors to obtain telephone connection records by grand jury subpoena is constitutional,” Loriquet said.
Susswein’s memo, a copy of which was obtained by the Law Journal last year, complained that sinceHunt, prosecutors have had to convince a judge to find probable cause in order to secure a warrant. As a result, prosecutors have not been able to obtain defendants’ phone records “until the later stages of a criminal investigation, when we already have sufficient information to make an arrest and to obtain a search warrant to search the premises where the subject telephone is located,” Susswein wrote.
“The Hunt procedure thus delays investigations as compared to federal practice, where a grand jury subpoena is used to obtain these same third-party telephone billing records near the outset of a criminal investigation,” Susswein said in the memo.
Lunsford is seeking to quash a Monmouth County grand jury subpoena that asks for billing records, customer records and call detail records. The subpoena seeks his mobile network and identification number, Social Security number, date of birth and call detail records for a two-week period in May 2014, along with other information.
In addition to commanding production of account information such as name, number and status, the subpoena requires the phone company to turn over “all other account information” associated with Lunsford’s cellphone number.
An earlier version of the subpoena, which was withdrawn, also sought GPS tracking data.
Lunsford’s motion accused the prosecution of “engaging in a fishing expedition by issuing such an overly broad subpoena” and seeking production of “sensitive information in which the cellphone owner has a protected privacy interest.”
Lunsford’s lawyer, Dean Schneider of Schneider Freiberger in Red Bank, cited and attached to the motion the U.S. Supreme Court’s June 2014 ruling in Riley v. California, which held that a warrant is generally needed to search the digital information on an arrestee’s cellphone.
Prosecutors in Lunsford are after the same information at issue in Riley, “seeking to paint a picture of the private life and movements of the cell owner and to reach into a private and now protected area of the cell owner’s life,” Schneider argued.
In January, Superior Court Judge John Mullaney Jr. ruled in Lunsford’s favor, saying law enforcement needed to get a warrant before obtaining the cellphone records.
“Even by retrieving the phone numbers of incoming and outgoing calls, and how long the conversations lasted, the viewer can still take a look into the private life of the individual,” Mullaney wrote.
“Although this court understands that the state seeks to obtain only the call detail records of the defendant’s phone, it cannot consciously accept that a grand jury subpoena duces tecum is sufficient to safeguard the state constitutional privacy rights of the defendant,” he said.
Susswein said in his brief that he was not requesting that Mullaney overturn or disregard Hunt—which he acknowledged Mullaney lacks authority to do—but to answer a question the Hunt court did not address: Is a grand jury subpoena adequate to protect the state constitutional privacy interest in phone records that was recognized in that case?
Susswein argues that the state is asking for the application of post-Hunt precedent that allows law enforcement to obtain financial transaction information from banks, utility records and Internet usage records by way of grand jury subpoenas. He contends those records are comparable to the phone records sought from Lunsford.
Schneider did not return a call seeking comment.
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