SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Gary Lunsford (075691) (A-61-14)
Argued February 29, 2016 – Decided August 1, 2016
RABNER, C.J., writing for a majority of the Court.
In this appeal, the Court addresses the standard that should apply when the State seeks telephone billing
records in connection with a criminal investigation.
The police arrested defendant Gary Lunsford after they executed a search warrant at his home based on
suspected criminal activity involving transactions in controlled dangerous substances (CDS). As part of its
continuing investigation, the Monmouth County Grand Jury issued a subpoena duces tecum to a wireless telephone
service provider requesting subscriber information associated with defendant’s cell phone number, which was the
contact for the controlled drug buys that led to defendant’s arrest. The subpoena sought customer and billing
records, as well as call-detail records, which identify the phone numbers of all incoming and outgoing calls as well
as the date, time, and duration of those calls (collectively “telephone billing records” or “telephone toll records”).
Defendant filed a motion to quash, which the trial court granted, stating that, under State v. Hunt, 91 N.J.
338 (1982), a communications data warrant (CDW), which is the equivalent of a search warrant, is needed to obtain
telephone billing records. The Attorney General, who superseded the Monmouth County Prosecutor’s Office to
litigate the constitutional question raised by the trial court’s decision, sought leave to appeal, which the Appellate
Division denied. The Court granted leave to appeal. 223 N.J. 159 (2015).
HELD: As a long-standing feature of New Jersey law, telephone billing records are entitled to protection from
government access under the State Constitution. Because they reveal details of one’s private affairs that are similar
to what bank and credit card records disclose, these areas of information should receive the same level of
constitutional protection and be available based on a showing of relevance. Direct judicial oversight of the process
is required to guard against the possibility of abuse, and in order to obtain a court order requiring production of
telephone billing records, the State must present specific and articulable facts to demonstrate that the records are
relevant and material to an ongoing criminal investigation.
1. In a series of decisions, the Court has recognized a constitutionally protected right to privacy in various types of
personal information. In doing so, the Court has parted company with federal law and relied on the State
Constitution. Early case law gave little attention to the question of the appropriate level of protection to safeguard
an individual’s privacy interest. Later decisions addressed the issue by balancing individual privacy rights with
society’s interest in investigating and halting criminal activity. The Court examines these cases in order to reconcile
the tensions that have developed over time in this area of law. (pp. 9-10)
2. In State v. Hunt, the Court held that defendant had a protectable privacy interest in telephone billing records
under the State Constitution, and thereby departed from federal law, which did not recognize a privacy interest in
such information. Although the Court did not address the specific procedure required for the State to obtain the
information, the Court stated that judicial sanction or a judicial proceeding is necessary. After the decision in Hunt,
the Attorney General consistently sought a warrant in order to obtain telephone billing records. Years later, the
Court extended the State constitutional protections to billing records for a hotel-room phone, and determined that
such records are subject to seizure only on a showing of probable cause and the issuance of a warrant. (pp. 10-16)
3. The Court has also recognized a protectable privacy interest in other information. More particularly, the Court
has held that account holders have a reasonable expectation of privacy in their bank and credit card records. The
Court rejected the position that a showing of probable cause and a search warrant are necessary to obtain these
records, and held that a grand jury subpoena, based on a relevancy standard, is sufficient to protect an individual’s
privacy interest in view of law enforcement’s legitimate investigatory needs. Similarly, the Court has held that a
grand jury subpoena sufficiently protects the privacy interest in utility records and the subscriber information that
individuals supply to an internet service provider. However, in State v. Earls, 214 N.J. 564 (2013), the Court
returned to the question of privacy in the context of cell-phone location information. There, the Court held that
tracking one’s location through a cell phone is a more intrusive and revealing invasion into an individual’s privacy,
and therefore requires that police obtain a warrant based on a showing of probable cause to acquire cell-phone
location information. (pp. 16-26)
4. Telephone billing records reveal information about the account holder even though they do not disclose the
contents of any communications. Bank account records and credit card statements disclose actual content. All of
these records can reveal comparable information, and create similar expectations of privacy. However, the courts
have afforded different levels of protection when production of the information is sought. Bank records can be
obtained through a grand jury subpoena, upon a finding that the records are relevant. To obtain telephone billing
records, the law requires that law enforcement meet a higher threshold and demonstrate probable cause, even though
bank records arguably reveal more information than telephone billing records. To address these inconsistent
standards, the Court must reconcile an individual’s privacy concerns with valid law enforcement aims, including the
practical impact of requiring a search warrant based on probable cause. (pp. 26-29)
5. A requirement that the State demonstrate that telephone billing records are relevant to an ongoing criminal
investigation in order to obtain the records protects individual privacy rights at stake, and recognizes society’s
legitimate interest in investigating criminal activities. To require a showing of probable cause would be contrary to
both the traditional authority of the grand jury and society’s legitimate interest in having officials promptly
investigate and interrupt criminal activity. The Legislature previously unanimously amended N.J.S.A. 2A:156A-
29(e) of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act) to require service
providers to disclose telephone records to law enforcement in response to a grand jury subpoena, which requires
only a showing that the documents are relevant to the investigation. Because the amendment conflicts with the
standard set forth in Hunt and other case law, it has not been followed. However, the amendment reflects the
Legislature’s view of the protection that a reasonable expectation of privacy requires in this area and is entitled to
respectful consideration. Still, the judicial branch has the obligation and the ultimate responsibility to interpret the
meaning of the Constitution and the protections it requires. In the end, the Court is guided by the language and
history of the New Jersey Constitution. (pp. 29-34)
6. To obtain telephone billing or toll records, the State must apply for a court order under N.J.S.A. 2A:156A-29(e)
of the Wiretap Act. As the statute requires, the State must demonstrate specific and articulable facts showing that
there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal
investigation. The requested records must cover a finite period of time which does not extend beyond the date of the
order. Judicial review of such ex parte applications will guard against abuse and root out bulk requests for
information that are not connected to a criminal investigation. In this matter, the Court affirms the trial court’s
decision to quash the grand jury subpoena for telephone billing records, and notes that the State may apply for a
court order to obtain those records in this case, consistent with the principles discussed in this opinion. (pp. 36-37)
The judgment of the trial court is AFFIRMED.
JUSTICE LaVECCHIA, CONCURRING IN PART and DISSENTING IN PART, joined by JUDGE
CUFF (temporarily assigned), concurs in the judgment to the extent that it affirms the trial court’s decision to
quash the grand jury subpoena for telephone billing records. Justice LaVecchia dissents from the portion of the
judgment that permits the State to apply for a court order to obtain those records based on the new procedures that
the Court outlines in its opinion. Justice LaVecchia expresses the view that State v. Hunt established a warrant
requirement for police access to telephone billing records, and that precedent should control this case under a
consistent line of cases addressing access by law enforcement to private telephone records.
JUSTICES PATTERSON, FERNANDEZ-VINA and SOLOMON join in CHIEF JUSTICE
RABNER’s opinion. JUSTICE LaVECCHIA filed a separate, concurring and dissenting opinion in which
JUDGE CUFF (temporarily assigned) joins. JUSTICE ALBIN did not participate.
2
SUPREME COURT OF NEW JERSEY
A-61 September Term 2014
075691
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GARY LUNSFORD,
Defendant-Respondent.
Argued February 29, 2016 – Decided August 1, 2016
On appeal from the Superior Court, Appellate
Division.
Ronald Susswein, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Mr. Susswein, Claudia Joy
Demitro, Ian C. Kennedy, and Jane C.
Schuster, Deputy Attorneys General, of
counsel and on the briefs).
Dean I. Schneider argued the cause for
respondent (Schneider Freiberger,
attorneys).
Kevin H. Marino argued the cause for amicus
curiae Association of Criminal Defense
Lawyers of New Jersey (Marino, Tortorella &
Boyle, attorneys; Mr. Marino, John D.
Tortorella, and Erez J. Davy, on the brief).
Frank L. Corrado argued the cause for amici
curiae American Civil Liberties Union of New
Jersey, Brennan Center for Justice, Electronic
Frontier Foundation and Office of the Public
Defender (Edward L. Barocas, Legal Director,
attorney; Mr. Corrado, Alexander R. Shalom,
Rubin M. Sinins, and Annabelle M. Steinhacker,
on the brief).
1
CHIEF JUSTICE RABNER delivered the opinion of the Court.
For more than three decades, this Court has departed from
federal law and recognized that, under the New Jersey
Constitution, individuals have a reasonable expectation of
privacy in information they provide to phone companies, banks,
and Internet service providers in order to use commercial
services. The Court has consistently applied that principle to
protect personal information from unrestricted government
access. No party in this appeal seeks to disturb that precept,
which is a bedrock feature of New Jersey law.
As a general rule, the greater the degree of intrusion into
one’s private matters by the government, the greater the level
of protection that should apply. This appeal asks the Court to
revisit the standard that should apply to telephone billing
records sought in connection with a criminal investigation. The
appeal also highlights inconsistencies in New Jersey’s case law
on privacy which have developed over time.
Telephone billing records, bank and credit card records,
and Internet subscriber information can all reveal intimate
details about a person’s life. The level of detail disclosed
across all of those areas is relatively similar. Yet our case
law has set different standards that law enforcement officers
must meet to obtain information from those sources. Earlier
2
decisions, with little analysis, required officials to seek a
search warrant supported by probable cause to get access to
telephone billing records; among other things, those records
disclose the telephone numbers dialed to and from a particular
phone but not the content of any conversations. To get access
to bank records, though, which reveal the actual content of
transactions, officials need only use a grand jury subpoena. A
subpoena can be used if the documents are relevant to an ongoing
criminal investigation, a lower threshold than probable cause.
When the Court’s decisions in the area of privacy rights
are read together, they reveal internal inconsistencies. We now
attempt to resolve that tension in the law. Because telephone
billing records reveal details of one’s private affairs that are
similar to what bank and credit card records disclose, we
conclude that both areas of information should receive the same
level of constitutional protection and be available if they are
relevant to an ongoing criminal investigation. More intrusive
records, like cell-phone location information, are entitled to
greater protection and continue to require a search warrant.
To guard against the possibility of abuse in this sensitive
area, however, we retain direct judicial oversight of the
process and require the State to obtain a court order before it
can ask a service provider to turn over telephone billing
records. A judge may enter an order if law enforcement
3
officials offer specific and articulable facts to demonstrate
that telephone billing records are relevant and material to an
ongoing criminal investigation. See N.J.S.A. 2A:156A-29(e). We
believe that this approach not only resolves the tension in
existing case law, but also strikes an appropriate balance
between legitimate privacy rights of individuals and society’s
valid interest in investigating and preventing crime.
We therefore agree with the trial court’s decision to quash
the grand jury subpoena the State served in this case, and
direct that the State may apply for a court order to obtain the
telephone billing records it seeks.
I.
The police arrested defendant Gary Lunsford after they
executed a search warrant at his home on May 15, 2014. As part
of a continuing investigation, the Monmouth County Grand Jury
issued a subpoena duces tecum on June 19, 2014 to Cellco
Partnership, doing business as Verizon Wireless. The subpoena
required Verizon to produce telephone records and global
positioning system (GPS) data associated with defendant’s cell-
phone number; the number was the contact for controlled drug
buys that provided the basis for the search warrant.
Six weeks later, the grand jury recalled the subpoena and
issued a new one that omitted the request for GPS data -- to
comply with State v. Earls, 214 N.J. 564 (2013), which requires
4
a search warrant for cell-phone location information. The new
subpoena sought subscriber information for the cell phone,
namely, billing and customer records, as well as call-detail
records for the two weeks leading up to defendant’s arrest.
Call-detail information includes the phone numbers dialed out
from defendant’s cell phone, the phone numbers dialed in to that
phone, and the date, time, and duration of those calls. That
information is often referred to as “telephone billing records”
or “telephone toll records.”
The State alerted defense counsel that it was seeking
telephone billing records to give defendant the opportunity to
move to quash the subpoena. Defendant filed a motion to quash,
and the trial court granted the motion on January 16, 2015. In
a written opinion, the trial court explained that under State v.
Hunt, 91 N.J. 338 (1982), a communications data warrant, the
equivalent of a search warrant, is needed to obtain telephone
toll records.
The Attorney General, who superseded the Monmouth County
Prosecutor’s Office to litigate the constitutional question this
case raises, sought leave to appeal. The Appellate Division
denied the request. The State then filed a motion for leave to
appeal with this Court, which we granted. 223 N.J. 159 (2015).
5
II.
The Attorney General does not dispute that telephone
billing records are entitled to protection under the State
Constitution. He argues instead that a grand jury subpoena,
based on a relevancy standard rather than probable cause, is
sufficient to safeguard the privacy rights at stake.
For support, the Attorney General traces the evolution of
privacy rights under the State Constitution from Hunt, which
addressed telephone billing records, to the present. He asserts
that although Hunt found that customers enjoy a reasonable
expectation of privacy in telephone billing records, the opinion
did not address whether a grand jury subpoena would adequately
protect that right. By contrast, the Attorney General contends,
more recent case law relating to the privacy rights in bank
records, State v. McAllister, 184 N.J. 17 (2005), Internet
subscriber information, State v. Reid, 194 N.J. 386 (2008), and
cell-phone location information, Earls, supra, 214 N.J. 564,
“strongly suggest . . . that a grand jury subpoena is all that
is needed.” According to the Attorney General, bank and
Internet subscriber records can reveal intimate details about a
customer’s private life that compare to the level of information
disclosed in telephone billing records; as a result, those areas
should be treated similarly under the law. The Attorney
6
General, therefore, argues that this Court should reconcile Hunt
with its more recent opinions.
The Attorney General contends that the grand jury subpoena
process works well to protect State constitutional privacy
rights, that the law in other jurisdictions does not support
sustaining a warrant requirement, and that the legitimate needs
of law enforcement offer further support for the use of grand
jury subpoenas to obtain telephone billing records. In
particular, the Attorney General notes that a probable cause
standard delays prosecutors from gathering toll records at an
early stage in a criminal investigation and, as a result,
lengthens the amount of time needed to conduct criminal
investigations.
Defendant argues that Hunt not only found a reasonable
expectation of privacy under the State Constitution in telephone
billing records but that it also imposed a warrant requirement
for the police to obtain those records. Because call-detail
records can “paint a picture” of defendant’s private life, he
maintains that Hunt was correctly decided and should not be
overturned. Defendant adds that the Attorney General has not
presented any special justification to overturn Hunt.
Defendant also argues that the grand jury subpoena process,
guided by a relevancy standard with no judicial oversight, does
not adequately protect a citizen’s privacy rights. Defendant
7
claims that a warrant requirement is the only way to guarantee
the needed level of protection.
We granted amicus curiae status to (1) the American Civil
Liberties Union of New Jersey, the Brennan Center for Justice,
the Electronic Frontier Foundation, and the Office of the Public
Defender (collectively, the ACLU), which submitted a joint
brief, and (2) the Association of Criminal Defense Lawyers of
New Jersey (ACDL).
Amici expand upon the arguments defendant raises. They
contend that Hunt expressly and correctly imposed a warrant
requirement and should not be overturned. The ACLU argues that
telephone billing records, particularly when collected in bulk,
can reveal intimate private information that only a warrant can
adequately protect. The ACDL, likewise, highlights the
expansive range of information that call-detail records can
reveal. The ACDL also stresses that telephone billing records
are quite revealing in the aggregate and pose particular
concerns for whistleblowers, journalists, people who seek
confidential advice on health issues, and others.
In addition, amici argue that the Attorney General has
misread this Court’s rulings on privacy. They contend that the
privacy interest in telephone billing records recognized in Hunt
is of the highest order, and that just because tracking an
individual’s movements may be more invasive than obtaining
8
telephone toll, bank, or ISP (Internet service provider)
records, it does not logically follow that telephone billing
records merit less protection than cell-phone location data or
should be treated the same as bank or ISP records.
Finally, amici argue that the grand jury process is
controlled by the prosecutor and does not adequately protect the
privacy interests involved.
III.
Over the years, this Court has recognized a
constitutionally protected right to privacy in various types of
information: telephone toll records, bank records, subscriber
information provided to an Internet Service Provider, and cell-
phone location data. See Hunt, supra, 91 N.J. 338; McAllister,
supra, 184 N.J. 17; Reid, supra, 194 N.J. 386; Earls, supra, 214
N.J. 564. In doing so, the Court has parted company with
federal law and relied on the State Constitution.1
Beyond the threshold question of whether a privacy right
exists lies another inquiry: what level of protection is
appropriate to safeguard an individual’s privacy interest?
Early case law gave little attention to the second question.
1 The United States Constitution guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV. Article I, Paragraph 7 of the New Jersey
Constitution contains nearly identical language.
9
Later decisions, dating back a decade, examined the issue by
balancing both individual privacy rights and society’s interest
in investigating and halting criminal activity. Today, we are
called upon to assess and reconcile the tension that has
developed over time in this area.
A.
The Court’s 1982 decision in Hunt marks an important point
in the chronology. The case arose out of an investigation into
an illegal sports gambling operation. Hunt, supra, 91 N.J. at
341. During the investigation, an informant told the State
Police that the defendant conducted a daily gambling business
over two telephone lines. Ibid. A detective asked the
telephone company for telephone billing records for both numbers
for a two-month period, and the company complied. Ibid. The
State Police later obtained court orders for a pen register and
a wiretap. Id. at 342.
Hunt analyzed with care whether the defendant had a
“protectible interest” in telephone billing records under the
Federal and State Constitutions. Id. at 342-43. The Court
quoted Justice Stewart’s observation that a list of dialed
telephone numbers “easily could reveal the identities of the
persons and the places called, and thus reveal the most intimate
details of a person’s life.” Id. at 347 (quoting Smith v.
10
Maryland, 442 U.S. 735, 748, 99 S. Ct. 2577, 2584, 61 L. Ed. 2d
220, 231 (1979) (Stewart, J., dissenting)).
Hunt noted that federal case law did not recognize a
“legitimate expectation of privacy in information voluntarily
turned over to third parties,” id. at 343-44, a principle
commonly referred to as the “third-party doctrine.” As a
result, individuals have no expectation of privacy under federal
law in pen register information (a list of local and long
distance numbers dialed), ibid. (citing Smith, supra, 442 U.S.
at 740, 99 S. Ct. at 2580, 61 L. Ed. 2d at 226-27), or in
financial information that customers convey to banks, id. at 344
n.1 (citing United States v. Miller, 425 U.S. 435, 442, 96 S.
Ct. 1619, 1623, 48 L. Ed. 2d 71, 79 (1976)).
The Hunt Court observed that New Jersey had followed a
different approach and afforded “the utmost protection” against
tapping phones to hear “telephonic communications.” Id. at 345.
The Court also emphasized that telephone customers -- in 1982 --
placed calls “from a person’s home or office, locations entitled
to protection” under the Federal and State Constitutions. Id.
at 347.
The Court specifically rejected the third-party doctrine.
Hunt explained that telephone callers are entitled to assume
that not only the words they utter but also the numbers they
dial in private “will be recorded solely for the telephone
11
company’s business purposes.” Ibid. The Court added, “[i]t is
unrealistic to say that the cloak of privacy has been shed
because the telephone company and some of its employees are
aware of” billing records. Ibid. The Court therefore concluded
that toll billing records were “part of the privacy package” and
were entitled to protection under the State Constitution. Id.
at 347-48.
The bulk of the Court’s thoughtful analysis focused on
whether to diverge from federal law and recognize a privacy
interest in telephone billing records. The opinion devoted
little attention to the steps law enforcement officials must
take to obtain protected billing records. At one point, the
decision observed that allowing “seizures” of telephone billing
records “without warrants can pose significant dangers to
political liberty.” Id. at 347. The passage was a prelude to a
brief discussion of an actual abuse that had occurred: the FBI
obtained toll billing records for columnist Jack Anderson after
he wrote a “column embarrassing to former Vice President Agnew”;
a source whose telephone number appeared in the records then
lost his job as a city attorney. Ibid.
Two paragraphs later, the opinion cited state court
decisions that followed or departed from the federal third-party
doctrine. Id. 348. After siding with the latter group, the
paragraph concluded, “[t]hus we are satisfied that the police
12
wrongfully obtained the toll billing records of the defendant
Hunt in that they were procured without any judicial sanction or
proceeding.” Ibid. (emphasis added). The Court did not
elaborate on the meaning of the phrase.
In reaching its conclusion, the Court in Hunt did not
mention its earlier decision in In re Addonizio, 53 N.J. 107
(1968). In that ruling, the Court addressed a defendant’s
effort to set aside grand jury subpoenas served on a bank and a
brokerage firm for his account records. The defendant attempted
to assert a claim under the Fourth Amendment. Id. at 131.
Chief Justice Weintraub rejected the argument and distinguished
Brex v. Smith, 104 N.J. Eq. 386 (Ch. 1929). In that case, “the
prosecutor, without any judicial process, called upon banks to
deliver” certain account records. Addonizio, supra, 53 N.J. at
134 (emphasis added). “It is enough to say,” the Addonizio
Court explained, that “a grand jury subpoena would be something
else.” Ibid.2 Hunt did not consider the issue or cite
Addonizio.
2 Grand jury investigations, in practice, are directed by the
prosecutor, who ordinarily proposes witnesses to be called and
issues subpoenas in the grand jury’s name. See In re Grand Jury
Subpoena Issued to Galasso, 389 N.J. Super. 281, 293 (App. Div.
2006). But “[t]he grand jury is a judicial, investigative body,
serving a judicial function; it is an arm of the court, not a
law enforcement agency or an alter ego of the prosecutor’s
office.” In re Grand Jury Appearance Request by Loigman, 183
N.J. 133, 141 (2005). The grand jury also operates under the
authority of the Judiciary. See McAllister, supra, 184 N.J. at
13
Justice Pashman authored a concurring opinion in Hunt which
pointedly addressed the risk of abuse: “What is missing from
the majority opinion is a full appreciation of the danger of
political abuse posed by unlimited police access to knowledge of
whom private citizens are calling and therefore of the
importance of the warrant requirement as a check on this
potential for abuse.” Hunt, supra, 91 N.J. at 351 (Pashman, J.,
concurring). The concurrence also directly stated that “police
[must] obtain a warrant before seizing toll billing records.”
Id. at 352. Because “[t]here is no danger that billing records
will be destroyed . . . during the time needed to get a
warrant,” Justice Pashman wrote, the requirement “is at most a
minimal burden that in no way intrudes upon legitimate police
activity.” Ibid.
By contrast, the references to warrants in the majority
opinion offer little analysis and are not as explicit. Viewing
the opinion as a whole, it appears that the parties and the
Court focused on whether New Jersey should recognize a privacy
interest in telephone billing records under the State
42-43 (noting Supreme Court’s supervisory authority over grand
juries); State v. Murphy, 110 N.J. 20, 31-33 (1998) (discussing
statutory responsibility of Court to promulgate rules and
regulations governing State grand juries); N.J.S.A. 2B:22-5
(authorizing Chief Justice to designate judges to “maintain
judicial supervision over the grand jury”).
14
Constitution. Indeed, the majority opinion framed the issue in
the case in just that way. See id. at 342-43 (“The key
questions are whether an individual has a protectible interest
in [toll billing] records under the Fourth Amendment to the
Federal Constitution or Article I, par. 7 of the New Jersey
Constitution.”). It is not possible to tell if the advocates
even argued about what level of protection that right would
require.
The Attorney General explains that, in response to Hunt,
the State took a cautious approach and consistently sought
warrants to obtain telephone toll records.
State v. Mollica, 114 N.J. 329 (1989), decided seven years
after Hunt, cemented a warrant requirement for telephone billing
records. Mollica considered whether to extend State
constitutional protections to billing records for a hotel-room
telephone. In the case, anonymous sources told the FBI that an
individual had operated an illegal bookmaking enterprise from
hotel rooms in Atlantic City. Id. at 335. Without a search
warrant, federal agents obtained the suspect’s telephone records
from the hotel. Ibid. The FBI later turned the records over to
state officials, who used the information to get a search
warrant. Id. at 335-36. The defendants, in turn, challenged
the search and claimed it was based on an unconstitutional
15
seizure of their hotel-room telephone billing records. Id. at
336.
The Court found no basis to distinguish between the
expectation of privacy in billing records for a home telephone
and a phone in a hotel room. Id. at 342. The “broader view of
. . . privacy that surrounds the use of a telephone” applied in
both settings and called for protection under the State
Constitution. Id. at 344-45.
The Court next turned to the process required and briefly
concluded, “[i]t therefore follows ineluctably that the official
seizure of hotel-telephone billing or toll records relating to a
guest’s use of a hotel-room telephone is subject to the
requirements of antecedent probable cause and the issuance of a
search warrant” under the State Constitution. Id. at 345
(citation omitted). For support, the Mollica Court cited only
the passage in Hunt that noted the police wrongfully obtained
billing records because they were procured “without any judicial
sanction or proceeding.” Ibid. (quoting Hunt, supra, 91 N.J. at
348).
The next link in the chain is McAllister, which addressed
bank records in 2005. This time, the Court undertook a
deliberative, two-part analysis: it first considered whether
account holders have a reasonable expectation of privacy in
their bank records, and then assessed what level of protection
16
should apply to that information. McAllister, supra, 184 N.J.
at 19.
At the outset, the Court recounted New Jersey’s departure
from the third-party doctrine. Under federal law, records that
customers voluntarily convey to banks enjoy no Fourth Amendment
protection. See Miller, supra, 425 U.S. 435, 96 S. Ct. 1619, 48
L. Ed. 2d 71. By contrast, Brex and Addonizio took a more
restrictive approach. McAllister, supra, 184 N.J. at 28. Brex
“recognized that account holders expect their banks to keep
their records confidential, even in the face of a government
official’s formal request,” and Addonizio, four decades later,
“implicitly recognized” that interest. Id. at 26-28.
The McAllister Court then directly addressed the privacy
interest in bank records. Id. at 29. The Court began by noting
how revealing the records are:
Bank records, like long distance billing
records, differ from other documents that
memorialize an individual’s affairs. On their
face, bank records are simply a collection of
numbers, symbols, dates, and tables. They are
a veritable chronicle of the mundane: the
payment of a nominal ATM fee, the automatic
deposit of a paycheck, the monthly interest
earned on a savings account. However, when
compiled and indexed, individually trivial
transactions take on a far greater
significance. “In the course of such
dealings, a depositor reveals many aspects of
his personal affairs, opinions, habits and
associations. Indeed, the totality of bank
records provides a virtual current biography.”
17
[Id. at 30-31 (quoting Burrows v. Superior
Court, 529 P.2d 590, 596 (Cal. 1975)).]
The Court also explained that “bank customers voluntarily
provide their information to banks, but they do so with the
understanding that it will remain confidential.” Id. at 31.
The Court therefore held that the State Constitution “recognizes
an account holder’s interest in the privacy of his or her bank
records.” Id. at 32-33.3
Next, McAllister analyzed the level of protection needed to
safeguard that privacy interest “in view of law enforcement’s
legitimate investigatory needs.” Id. at 33. The Court rejected
the ACDL’s position that probable cause was required. See id.
at 24, 33. In doing so, the Court relied on Addonizio, which
explained “that grand juries have never been bound only to
investigate charges that were already supported by probable
cause.” Id. at 33 (citing Addonizio, supra, 53 N.J. at 124).
The McAllister Court quoted Chief Justice Weintraub, who had
observed that “the probable cause required for a search warrant
3 Nowhere does McAllister suggest that customers have a reduced
expectation of privacy because of federal reporting requirements
for certain large cash transactions. See post at __-__ (slip
op. at 13-14). Nor would that logically follow. To the extent
that account holders realize that a cash transaction of more
than $10,000 should result in the filing of a currency
transaction report, how would that affect their reasonable
expectation of privacy in the countless non-cash transactions
that appear in their bank statements? McAllister specifically
focused on the latter, more revealing, transactions.
18
is foreign to this scene . . . . [A grand jury’s] power to
investigate would be feeble indeed if [it] had to know at the
outset everything needed to arrest a man or to invade his home.”
Id. at 33-34 (quoting Addonizio, supra, 53 N.J. at 126).
McAllister affirmed “the expansive investigatory power of
grand juries,” id. at 34, “bounded by relevancy and safeguarded
by secrecy,” id. at 42, and held that a grand jury subpoena
based on a relevancy standard was adequate to protect an
individual’s privacy interest in bank records, id. at 36. A
showing of probable cause, ordinarily required for a search
warrant, was not required. Ibid.
Notably, McAllister contains but a single substantive
reference to Hunt. McAllister simply states that because Hunt
did not involve a grand jury subpoena, the opinion did not
“require[] a different result in this appeal.” Id. at 36.4
State v. Domicz, 188 N.J. 285 (2006), followed soon after
McAllister. In Domicz, the Court held that a grand jury
4 The Court in McAllister declined to require the State to give
notice to the target of the grand jury’s investigation and
invited the Criminal Practice Committee to further study “the
benefits and burdens of enhanced protections for bank records.”
Id. at 42-43. The Criminal Practice Committee later surveyed
prosecutors and defense counsel and concluded that the subpoena
process, without notice, struck “a fair balance between an
account holder’s right to privacy and the legitimate needs of
law enforcement to investigate alleged criminal activity.”
Report of the Supreme Court Criminal Practice Committee 2007-
2009 Term at 133-34 (Feb. 17, 2009).
19
subpoena was sufficient to protect any privacy interest in an
individual’s utility records. Id. at 299-301. In its analysis,
the Court underscored how revealing bank records are:
Bank records may reveal all types of household
items purchased and possessed by a person,
such as furniture, artwork, and electronic
equipment. Through check and debit card
payments, those records may disclose what a
person eats and drinks, what newspapers and
magazines he reads, and even where he
vacations. Bank records also may indicate the
amount of a person’s utility and telephone
bills.
[Id. at 299-300.]
By contrast, utility records expose far less “about a person’s
private life and activities within the home.” Id. at 299. The
Court thus found no basis to treat “utility records differently
from bank records.” Ibid. It upheld the use of a grand jury
subpoena to obtain utility records and did not require the
police to secure a warrant. Id. at 300-01.
Reid, supra, decided in 2008, drew on similar themes and
followed the same two-part approach. In that case, someone had
accessed a company’s website and fraudulently changed the
company’s shipping address. 194 N.J. at 392. A supplier
captured the user’s Internet Protocol (IP) address and reported
it to the owner of the company; the owner later relayed the IP
address to the police. Ibid. The police issued a deficient
subpoena to Comcast, the service provider to which the address
20
was registered, to obtain information about the IP address. Id.
at 392-93. In response, Comcast identified the defendant as the
subscriber of the IP address and provided subscriber information
including her name, address, telephone number, and other account
details. Id. at 393.
The Court again departed from the federal third-party
doctrine and held that subscriber information that individuals
provide to an Internet service provider is entitled to
protection under the State Constitution. Id. at 399. The Court
explained that
ISP records share much in common with long
distance billing information and bank records.
All are integrally connected to essential
activities of today’s society. Indeed, it is
hard to overstate how important computers and
the Internet have become to everyday, modern
life. Citizens routinely access the Web for
all manner of daily activities: to gather
information, explore ideas, read, study, shop,
and more.
. . . .
In addition, while decoded IP addresses do not
reveal the content of Internet communications,
subscriber information alone can tell a great
deal about a person. With a complete listing
of IP addresses, one can track a person’s
Internet usage. “The government can learn the
names of stores at which a person shops, the
political organizations a person finds
interesting, a person’s . . . fantasies, her
health concerns, and so on.” Daniel Solove,
The Future of Internet Surveillance Law, 72
Geo. Wash. L. Rev. 1264, 1287 (2004). Such
information can reveal intimate details about
one’s personal affairs in the same way
21
disclosure of telephone billing records does.
Although the contents of Internet
communications may be even more revealing,
both types of information implicate privacy
interests.
[Id. at 398-99.5]
The Court went on to consider “the type of protection ISP
subscriber information should receive in the face of legitimate
investigative needs.” Id. at 402. The Court revisited
Addonizio, McAllister, and Domicz and concluded, “we see no
material difference between bank records and ISP subscriber
information and decline to treat them differently.” Id. at 404.
In both cases, the Court held, “a grand jury subpoena based on a
relevancy standard is sufficient to meet constitutional
concerns.” Ibid. The Court did not rely on, or even refer to,
Hunt in that discussion.
In 2013, the Court returned to the question of privacy in
the context of cell-phone location information. Earls, supra,
214 N.J. 564. In Earls, the police obtained an arrest warrant
for the defendant because of his role in a series of residential
burglaries. Id. at 570-71. Law enforcement began looking for
the defendant and an ex-girlfriend, whom the defendant allegedly
5 The subpoena in Reid sought subscriber information, not the
subscriber’s Internet search or browsing history. The State has
not argued in this appeal that a grand jury subpoena would be
sufficient to obtain the latter kind of information, which would
directly reveal content.
22
threatened after he learned about her cooperation in the
investigation. Ibid. The police contacted T-Mobile, a cell-
phone service provider, which provided information on three
occasions -- without a warrant -- about the location of a cell
phone believed to be used by the defendant. Id. at 571-72.
That information led to the defendant’s arrest. Id. at 572.
The Court noted that a cell phone automatically registers
or identifies itself with the nearest cell site every seven
seconds, even when no calls are made. Id. at 576-77. With
existing technology in 2013, “cell-phone providers [could]
pinpoint the location of a person’s cell phone with increasing
accuracy,” and in some areas could even locate users within
individual floors and rooms inside buildings. Id. at 577.
The Court reviewed federal law and considered United States
v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55
(1983), and United States v. Karo, 468 U.S. 705, 104 S. Ct.
3296, 82 L. Ed. 2d 530 (1984), which together “found no
reasonable expectation of privacy in the monitoring of tracking
devices in public, as opposed to private, areas.” Earls, supra,
214 N.J. at 580-81. Earls also discussed a more recent
decision, United States v. Jones, 565 U.S. ___, 132 S. Ct. 945,
181 L. Ed. 2d 911 (2012), in which a majority of the United
States Supreme Court held that the installation of a GPS
23
tracking device on a car constituted a trespass on private
property and required a warrant. Earls, supra, 214 N.J. at 582.
Justice Alito, who concurred with three other Justices,
would have analyzed the case under a reasonable-expectation-of-
privacy framework. Jones, supra, 565 U.S. at ___, 132 S. Ct. at
963-64, 181 L. Ed. 2d at 933-34 (Alito, J., concurring). He
observed that “relatively short-term monitoring of a person’s
movements on public streets accords with expectations of privacy
that our society has recognized as reasonable”; “[b]ut the use
of longer term GPS monitoring in investigations of most offenses
impinges on expectations of privacy.” Id. at ___, 132 S. Ct. at
964, 181 L. Ed. 2d at 934 (citation omitted). Justice
Sotomayor, who joined the majority opinion, also concurred
separately. She agreed with Justice Alito’s views on longer
term tracking and added that “even short-term [GPS] monitoring .
. . will require particular attention.” Id. at ___, 132 S. Ct.
at 955, 181 L. Ed. 2d at 925. Both concurrences addressed GPS
monitoring and the details it revealed, not toll billing
records. See, e.g., ibid. (Sotomayor, J., concurring) (“GPS
monitoring generates a precise, comprehensive record of a
person’s public movements that reflects a wealth of detail.”).
Earls reasoned from the concurring opinions in Jones as
well as settled state law. It reiterated that all three types
of information discussed in Hunt, McAllister, and Reid can be
24
very revealing, and compared them to cell-phone location data.
Earls, supra, 214 N.J. at 585.
Using a cell phone to determine the location
of its owner can be far more revealing than
acquiring toll billing, bank, or Internet
subscriber records. It is akin to using a
tracking device and can function as a
substitute for 24/7 surveillance without
police having to confront the limits of their
resources. It also involves a degree of
intrusion that a reasonable person would not
anticipate. See Jones, supra, 565 U.S.
at , 132 S. Ct. at 964, 181 L. Ed. 2d at
934 (Alito, J., concurring). Location
information gleaned from a cell-phone provider
can reveal not just where people go -- which
doctors, religious services, and stores they
visit -- but also the people and groups they
choose to affiliate with and when they
actually do so. That information cuts across
a broad range of personal ties with family,
friends, political groups, health care
providers, and others. See id. at , 132 S.
Ct. at 955-56, 181 L. Ed. 2d at 925 (Sotomayor,
J., concurring). In other words, details
about the location of a cell phone can provide
an intimate picture of one’s daily life.
[Id. at 586 (emphasis added).]
The Court concluded that cell-phone users have a reasonable
expectation of privacy in the location of their cell phones,
which is entitled to protection under the State Constitution.
Id. at 587-88. The sentence underscored in the above passage,
though, does not resolve this appeal because it does not
differentiate among telephone billing, bank, and Internet
records; it merely notes that tracking one’s location through a
25
cell phone is more revealing than the other three kinds of
information.
Earls also separately considered what level of protection
the privacy right required. The Court noted that, “[a]s a
general rule, the more sophisticated and precise the tracking,
the greater the privacy concern.” Id. at 587. “Because of the
nature of the intrusion, and the corresponding, legitimate
privacy interest at stake,” the Court held that the “police must
obtain a warrant based on a showing of probable cause” to get
tracking information through a cell phone, unless exigent
circumstances or another exception to the warrant requirement
applies. Id. at 588. Earls did not rely on Hunt to support
that holding.
B.
The above survey reveals that our jurisprudence is not
internally consistent. Telephone billing records -- a list of
phone numbers dialed out of and in to a phone, along with the
time and duration of those calls -- are, of course, quite
revealing. That is why they are entitled to protection under
the State Constitution, even though they do not disclose the
contents of any communications.
Amici argue that telephone billing records are “content-
laden” and “suggestive” of content, particularly when they are
aggregated. But are telephone billing records more revealing
26
than bank records, which reveal actual content? Bank records
contain not only a tally of dates and dollar amounts; they also
include copies of actual checks that disclose who was paid, for
how much, often for what services, and when. The contents of a
checkbook can expose the doctors we use, the political parties
and religious groups we contribute to, and payments to intimate
associates that are meant to be kept private. Credit card
statements offer similar details. Also, as Reid explained, ISP
subscriber information can disclose comparable personal details;
if matched to an IP address, the information can help track a
person’s Internet usage. Reid, supra, 194 N.J. at 398.
All three areas -- telephone billing records, bank records,
and Internet subscriber information -- are less intrusive than a
device that permits 24/7 tracking. Yet it is hard to
differentiate among the three in terms of the reasonable
expectation of privacy that attaches to each. Bank account
records, credit card statements, and Internet subscriber
information can be just as revealing as telephone billing
information.
The ACDL argues that telephone billing records, which are
expressed in a standardized format, are easy to aggregate and
analyze, particularly in light of modern technology. The ACDL
also contends that society’s reliance on telecommunications has
increased with the rise of mobile phones. But standardized bank
27
records can also be aggregated and analyzed. And just as mobile
phones have arguably increased the amount of data available, the
widespread replacement of cash with credit and debit cards and
mobile payment systems has also added to society’s trail of
financial transactions. See Geoffrey R. Gerdes and Kathy C.
Wong, Federal Reserve Bulletin, Recent Payment Trends in the
United States A77 (Oct. 2008), http://www.federalreserve.gov/
pubs/bulletin/2008/pdf/payments08.pdf (showing nearly three-fold
increase in number of non-cash payments per person in United
States from 1971 to 2006); Federal Reserve System, The 2013
Federal Reserve Payments Study 15 (2014),
https://www.frbservices.org/files/communications/pdf/general/201
3_fed_res_paymt_study_detailed_rpt.pdf (showing approximately
29-percent increase in total non-cash payments in United States
from 2006 to 2012).
Bank records arguably reveal more to law enforcement than
telephone billing records because of the actual content they
contain. Yet our law has given greater protection to telephone
billing records, which do not disclose content. In other words,
if bank records are relevant to an investigation, law
enforcement can seek them with a subpoena; to obtain telephone
billing records, though, officers have been required to meet a
higher threshold and show probable cause.
28
One reason for the disparate approach in our case law is
the manner in which it developed. Hunt and Mollica did not
consider legitimate investigative needs when they together
imposed a warrant requirement to obtain telephone billing
records. McAllister and Reid weighed that concern but did not
wrestle with Hunt. This appeal requires that we do both. We
are called on to analyze and reconcile different strands in the
law -- to assess genuine privacy concerns as well as valid law
enforcement aims across related areas.
To do that, in addition to evaluating how intrusive toll
records can be, as Hunt did, we consider the practical impact of
requiring a search warrant -- based on probable cause -- to
obtain telephone toll records. Probable cause for a warrant
requires proof “to believe that a crime has been or is being
committed at a specific location or that evidence of a crime is
at the place to be searched.” State v. Evers, 175 N.J. 355, 381
(2003) (citations omitted). In the context of a warrant for
telephone billing records, a judge must be convinced that there
is probable cause to believe the records sought contain evidence
of a crime -- not simply that the records are relevant to an
ongoing criminal investigation. To amass enough evidence to
meet the higher standard inevitably slows down investigations in
the early stages, particularly in matters that involve more
complex schemes. That approach runs counter to both the
29
traditional authority of the grand jury, see Addonizio, supra,
53 N.J. at 126, and society’s legitimate interest in having
officials promptly investigate and try to interrupt criminal
activity.
To be sure, if the police choose to use highly intrusive
techniques, like obtaining cell-phone location information, they
must establish probable cause notwithstanding the impact that
standard may have on the pace of an investigation. But when the
police request less intrusive information, a relevance standard
can protect valid privacy concerns and allow appropriate
investigations to proceed.6
6 The dissent focuses on pen registers. Unlike toll billing
records, which present a list of phone numbers dialed after the
fact, a pen register tracks each call as it is made. Law
enforcement officials who monitor a pen register get real-time
information about all local and long distance numbers dialed,
including calls that are not completed. See State v. Feliciano,
___ N.J. ___, ___ (2016) (slip op. at 4 n.1). Pen registers
thus disclose current activity, around the clock, in a manner
that reveals more than toll billing records.
A number of jurisdictions, in fact, require law enforcement
to meet a heightened standard to obtain a pen register, as
compared to toll billing records. See, e.g., State v. Thompson,
760 P.2d 1162, 1168 (Idaho 1988) (pen register), Idaho Code Ann.
§ 19-3004A (2016) (billing records); In re Original
Investigation, Special Grand Jury, 402 N.E.2d 962, 964 (Ind.
1980) (pen register), In re Order for Ind. Bell Tel. to Disclose
Records, 409 N.E.2d 1089, 1090-91 (Ind. 1980) (billing records),
overruled in part on other grounds by S.H. v. State, 984 N.E.2d
630 (Ind. 2013); Dist. Attorney for Plymouth Dist. v. New
England Tel. & Tel. Co., 399 N.E.2d 866, 868-70 (Mass. 1980)
(pen register), Commonwealth v. Vinnie, 698 N.E.2d 896, 909-10
(Mass.), cert. denied, 525 U.S. 1007, 119 S. Ct. 523, 142 L. Ed.
2d 434 (1998) (billing records); Mont. Code Ann. § 46-4-403
30
C.
We are not the only state to consider the standard the
police must satisfy to obtain telephone billing records. In the
three decades since Hunt and Mollica, however, only a handful of
states have imposed a probable cause requirement.
Federal law permits law enforcement to obtain telephone
billing records with a grand jury or trial subpoena or an
appropriate administrative subpoena. See 18 U.S.C.A. §
2703(c)(2). That standard remains in place after Riley v.
California, ___ U.S. , 134 S. Ct. 2473, 189 L. Ed. 2d 430
(2014).
Defendant relies on Riley and contends that it requires the
use of a search warrant to access telephone connection records.
Riley, however, involved a warrantless search of the contents of
a smartphone seized incident to an arrest. As the United States
Supreme Court explained, a search of a modern cell phone can
reveal vast amounts of private personal information, “from the
mundane to the intimate”: photographs, text messages, one’s
Internet browsing history, calendar, personal contacts, historic
location information, various apps, and more. Id. at ___, 134
(2016) (pen register), Hastetter v. Behan, 639 P.2d 510, 512-13
(Mont. 1982) (billing records); Commonwealth v. Mellili, 555
A.2d 1254, 1258-59 (Pa. 1989) (pen register), 18 Pa. Cons. Stat.
§ 5743 (2016) (billing records); but see Hunt, supra, 91 N.J. at
344.
31
S. Ct. at 2489-91, 189 L. Ed. 2d at 446-48. Because smartphones
contain and may reveal “the privacies of life,” the Court held
that law enforcement officers must get a warrant before they may
search the contents of a cell phone seized incident to arrest.
Id. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452
(citation omitted). Riley did not address telephone billing
records and did not alter the prevailing federal standard to
obtain that information.
A large majority of states use the same type of standard
and allow law enforcement to obtain telephone billing
information based on some form of a relevancy standard.7
7 See Henderson v. State, 583 So. 2d 276, 291-92 (Ala. Crim.
App. 1990); Ariz. Rev. Stat. § 13-3018 (2016); State v. Hamzy,
709 S.W.2d 397, 398-99 (Ark. 1986); Conn. Gen. Stat. § 54-47aa
(2016); Del. Code Ann. tit. 11, § 2423(c) (2016); Gibbs v.
State, 479 A.2d 266, 272 (Del. 1984); Fla. Stat. Ann. §
934.23(4) (2016); Figueroa v. State, 870 So. 2d 897, 901 (Fla.
Dist. Ct. App. 2004); Kesler v. State, 291 S.E.2d 497, 504 (Ga.
1982); Idaho Code Ann. § 19-3004A (2016); People v. DeLaire, 610
N.E.2d 1277, 1282-83 (Ill. App. Ct.), appeal denied, 616 N.E.2d
340 (Ill. 1993); In re Order for Ind. Bell Tel. to Disclose
Records, 409 N.E.2d 1089, 1090 (Ind. 1980); State v. Schultz,
850 P.2d 818, 829-30 (Kan. 1993); State v. Marinello, 49 So. 3d
488, 507-10 (La. Ct. App. 2010), cert. denied, 61 So. 3d 660
(La. 2011); Me. Rev. Stat. Ann. tit. 5, § 200-B(2) (2016); Md.
Code Ann., Crim. Proc. § 15-108(a) (2016); Mass. Ann. Laws ch.
271, § 17B (2016); Commonwealth v. Vinnie, 698 N.E.2d 896, 909-
10 (Mass. 1998); Minn. Stat. Ann. § 388.23 (2016); Fraise v.
State, 17 So. 3d 160, 163-64 (Miss. Ct. App. 2009) (non-
narcotics case); Hastetter v. Behan, 639 P.2d 510, 511 (Mont.
1982); Neb. Rev. Stat. Ann. § 86-2,106 (2016); State v. Knutson,
852 N.W.2d 307, 319-20 (Neb. 2014), cert. denied, U.S. ,
135 S. Ct. 1505, 191 L. Ed. 2d 442 (2015); N.H. Rev. Stat. Ann.
§ 7:6-b (2016); State v. Gubitosi, 886 A.2d 1029, 1034-36 (N.H.
2005); People v. Di Raffaele, 433 N.E.2d 513, 516 (N.Y. 1982);
32
Five states require a showing of probable cause. In three
states, the rule is imposed by statute;8 in two, it is based on
case law that interprets the state’s constitution.9
In 2006, the New Jersey Legislature unanimously amended the
Wiretap Act to require service providers to disclose telephone
records to law enforcement in response to a grand jury subpoena.
See L. 2005, c. 270 (codified as amended at N.J.S.A. 2A:156A-
N.C. Gen. Stat. § 15A-298 (2016); N.D. Cent. Code Ann. § 51-34-
04 (2016); State v. Lind, 322 N.W.2d 826, 836-37 (N.D. 1982);
State v. Neely, 2012-Ohio-212, ¶¶ 16-26 (Ohio Ct. App. 2012);
State v. Johnson, 131 P.3d 173, 183-84 (Or. 2006); 18 Pa. Cons.
Stat. Ann. § 5743 (2016); State v. McGoff, 517 A.2d 232, 234
(R.I. 1986); State v. King, 772 S.E.2d 189, 197 (S.C. Ct. App.
2015); Tenn. Code Ann. § 24-7-116 (2016); Tex. Code Crim. Proc.
Ann. art. 18.21, Sec. 5 (2016); Utah Code Ann. § 77-23b-4
(2016); Am. Fork City v. Smith, 258 P.3d 634, 636 (Utah Ct. App.
2011); Va. Code Ann. § 19.2-70.3 (2016); State v. Clark, 752
S.E.2d 907, 921 (W. Va. 2013); Saldana v. State, 846 P.2d 604,
611-12 (Wyo. 1993); see also Williams v. Commonwealth, 213
S.W.3d 671, 683 (Ky. 2006) (embracing third-party doctrine
generally); State v. Plunkett, 473 S.W.3d 166, 175-76 (Mo. Ct.
App. 2015) (same); State v. Rolfe, 825 N.W.2d 901, 910 (S.D.
2013) (following third-party doctrine for ISP records); State v.
Simmons, 27 A.3d 1065, 1070 n.5 (Vt. 2011) (noting no history of
rejecting third-party doctrine); but see Miss. Code. Ann. § 41-
29-536 (2016) (probable cause standard for narcotics cases).
The State canvassed other Attorneys General and represents that
prosecutors in New Mexico use subpoenas to obtain telephone
billing records.
8 Cal. Penal Code § 1524.3 (2016); Mich. Comp. Laws Serv. §
767A.3 (2016); Wis. Stat. Ann. § 968.375 (2016).
9 See People v. Corr, 682 P.2d 20, 26-28 (Colo. 1984); State v.
Eisfeldt, 185 P.3d 580, 585 (Wash. 2008). The State represents
that prosecutors in Alaska and Nevada use search warrants to
obtain telephone billing records; notwithstanding the authority
cited above in note 7, prosecutors in South Carolina and Wyoming
reportedly do so as well.
33
29(f) (2006)). The provision mirrors federal law. See 18
U.S.C.A. § 2703(c)(2). Because the amendment conflicts with the
standard set in Hunt and Mollica, it has not been followed. It
nevertheless reflects the Legislature’s view of what a
reasonable expectation of privacy in this area calls for, and is
entitled to respectful consideration. See Reid, supra, 194 N.J.
at 401 (noting Legislature’s determination to protect against
disclosure of ISP information).
The judicial branch, of course, has the obligation and the
ultimate responsibility to interpret the meaning of the
Constitution and the protections it requires. Asbury Park
Press, Inc. v. Woolley, 33 N.J. 1, 12 (1960). Although the
actions of other states may be informative, in the end we are
guided by the language and history of the New Jersey
Constitution.
D.
We pause to underscore what this case is not about: the
collection of bulk data from telephone service providers for
large numbers of customers, over an extended period of time, by
an agency that does not conduct criminal investigations. Much
has been written about the recent efforts of the National
Security Agency (NSA) to collect large amounts of telephone
metadata on an ongoing basis. The Second Circuit recently found
that the NSA’s program exceeded the scope of what Congress had
34
authorized and violated the Patriot Act. See ACLU v. Clapper,
785 F.3d 787, 826 (2d Cir. 2015). New Jersey’s Attorney General
stresses that the NSA program presents a “markedly different”
practice that is “completely distinct” from the grand jury
subpoena process.
We do not address or sanction the NSA’s practice in this
opinion. The subpoena at the center of this appeal seeks two
weeks of telephone billing records, for a single phone line, in
connection with an ongoing criminal investigation. That is not
the same as an effort by a non-law enforcement agency, acting
outside the criminal arena, to obtain, aggregate, and retain
bulk data about the use of telephone facilities by a large
number of individuals.
E.
We continue to believe that telephone billing records, bank
records, and ISP subscriber information disclose private
information that is entitled to constitutional protection. Our
law, therefore, does not allow police officers simply to contact
a service provider and ask for those records.
As we have noted before, the greater the degree of
intrusion into an individual’s personal affairs, the greater the
privacy concern. See Earls, supra, 214 N.J. at 587. We find
that all three types of records reveal comparable amounts of
private information and are similarly intrusive. Indeed, the
35
language in Hunt, McAllister, and Reid contains similar themes
and examples of the types of personal information that may be
disclosed. See Hunt, supra, 91 N.J. at 347; McAllister, supra,
184 N.J. at 30-31; Reid, supra, 194 N.J. at 398-99. Because the
privacy concerns in all three areas are similar, the records
should receive comparable levels of protection. See Reid,
supra, 194 N.J. at 404 (“[Records that] reveal comparably
detailed information about one’s private affairs . . . are
entitled to comparable protection under our law.”).
Defendant does not acknowledge the inconsistency in our
case law. For that reason, he views the State’s petition as an
effort to overturn Hunt. This appeal, however, viewed in the
context of three decades of jurisprudence, is about reconciling
and restoring consistency to a challenging area of law, which we
have attempted to do.
Looking at the full spectrum of cases the Court has decided
in recent decades, we conclude that the relevance standard
adopted in McAllister and Reid appropriately protects individual
privacy rights in telephone billing records and at the same time
recognizes society’s legitimate interest in investigating
criminal activities.
We also appreciate the possibility for abuse in this
sensitive area. Hunt, supra, addressed that issue decades ago,
91 N.J. at 347, and it remains a concern today. We therefore
36
retain direct judicial oversight as part of the process to
obtain telephone billing records.
We direct that, going forward, the State must apply for a
court order under N.J.S.A. 2A:156A-29(e) to obtain telephone
billing or toll records. In accordance with that statute, law
enforcement must demonstrate “specific and articulable facts
showing that there are reasonable grounds to believe that” the
records sought are “relevant and material to an ongoing criminal
investigation.” N.J.S.A. 2A:156A-29(e). The requested records
must cover a finite period of time which does not extend beyond
the date of the order.
Judicial review of ex parte applications of this type will
help guard against abuses in general and root out bulk requests
for information that are unconnected to a criminal
investigation. In addition, a judge may quash or modify an
order “if the information or records requested are unusually
voluminous,” among other reasons. Ibid.
IV.
For the reasons stated above, we affirm the trial court’s
decision to quash the grand jury subpoena for telephone billing
records. The State may apply for a court order to obtain those
records in this case, consistent with the principles discussed
above.
37
JUSTICES PATTERSON, FERNANDEZ-VINA and SOLOMON join in
CHIEF JUSTICE RABNER’s opinion. JUSTICE LaVECCHIA filed a
separate, concurring and dissenting opinion in which JUDGE CUFF
(temporarily assigned) joins. JUSTICE ALBIN did not
participate.
38
SUPREME COURT OF NEW JERSEY
A-61 September Term 2014
075691
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GARY LUNSFORD,
Defendant-Respondent.
JUSTICE LaVECCHIA and JUDGE CUFF (temporarily assigned),
concurring and dissenting.
We concur in the judgment that affirms the trial court’s
decision to quash the grand jury subpoena for telephone billing
records. We respectfully dissent from the portion of the
Court’s judgment that permits the State to apply for a court
order to obtain those records based on the new procedures
outlined in the Court’s opinion.
This appeal is about where one puts one’s marker on
privacy. For the telephone billing records in issue in this
matter, we place our marker where this Court placed it over
thirty years ago in State v. Hunt, 91 N.J. 338 (1982). Hunt
established a warrant requirement for police access to telephone
billing records. The line of cases that began with Hunt and
continued with State v. Mollica, 114 N.J. 329 (1989), and State
1
v. Earls, 214 N.J. 564 (2013), should, in our view, include this
appeal as part of that chain.
I.
In Hunt, supra, this Court rejected United States Supreme
Court precedent, believing that “[i]t is unrealistic to say that
the cloak of privacy has been shed” because telephone billing
records were disclosed to the telephone company and its
employees. 91 N.J. at 347. Because of the wealth of
information that they reveal, the Court said that telephone
billing records are “part of the privacy package.” Ibid. As
such, law enforcement could not obtain those records “without
any judicial sanction or proceeding.” Id. at 348.
For us there can be no sincere question whether Hunt
imposed a warrant requirement for access to telephone billing
records that include information about calls sent, received, and
the length of time spent on each such call. The Court
unmistakably understood its own precedent as requiring a warrant
and not something less. See Chief Justice Robert Wilentz, The
New Constitution, 49 Rutgers L. Rev. 887, 888 (1997) (stating,
in speech delivered at Princeton University in 1985, “[W]e held
that the state’s obtaining a defendant’s telephone bills without
a warrant (order by a judge) simply by asking the telephone
company to turn the bills over, or obtaining them in some other
way without a warrant, constituted an unreasonable seizure under
2
the New Jersey Constitution, rendering any evidence derived from
those telephone bills inadmissible at trial”).
If it is arguable, at all, from the very language of Hunt
itself, any doubt about the judicial process that the Hunt Court
had in mind was cleared up by Mollica. That opinion began with
this sentence: “In this case federal law-enforcement officers
without a search warrant obtained hotel billing records relating
to the use of an occupant’s room telephone.” Mollica, supra,
114 N.J. at 334 (emphasis added). The Court asked whether
Hunt’s protection reached “transient accommodations, such as
hotel rooms, and . . . hotel telephone toll records that are
kept in the regular course of a hotel’s business to reflect for
billing purposes the use of hotel-room telephones by guests.”
Id. at 340-41.
The Court said that it did, declining “to endorse . . . a
shallow constitutional distinction between a home on the one
hand and motel rooms on the other.” Id. at 342 (quoting People
v. Oliver, 338 N.W.2d 167, 173 (Mich. 1983)). That the hotel
staff in addition to the telephone company “creat[ed] an extra
circle of persons who have access to toll records for business
purposes, [did] not alter this perception.” Id. at 343.
Accordingly, this Court declared that government seizure of
those records “is subject to the requirements of antecedent
probable cause and the issuance of a search warrant.” Id. at
3
345 (emphasis added). In making that pronouncement, Mollica
cited to Hunt’s language that telephone billing records were
wrongfully obtained “without any judicial sanction or
proceeding.” Ibid. That, in our view, nullifies any argument
that “judicial sanction or proceeding” means anything other than
a warrant supported by antecedent probable cause.
The State now argues that the warrant requirement should be
tossed aside. According to the State, the warrant requirement
is too burdensome. After all, a federal statute allows federal
officers to obtain telephone billing records on the strength of
a grand jury subpoena, see 18 U.S.C.A. § 2703(c)(2), and so does
a New Jersey statute that was designed to mimic the federal
standard, see N.J.S.A. 2A:156A-29(f). Because federal
authorities can obtain telephone billing records early in joint
federal-state conspiracy investigations, and because those
records will not be admissible in state court, the State
contends that the option to prosecute any part of the case in
state court is foreclosed. Our warrant requirement, in the
State’s view, serves as a roadblock to joint federal-state
investigations.
The difficulty with the State’s position is that it has
been advanced before, thoroughly considered, and rejected. The
warrant requirement was not some ill-considered aside by this
Court. Writing for the Court in Mollica, Justice Handler was
4
expressly aware of the practical implications that follow from
imposing a warrant requirement under Article I, Paragraph 7 when
none is required under the Fourth Amendment. Ironically for the
State, Mollica is “the seminal case” on the issue. Wayne A.
Logan, Dirty Silver Platters: The Enduring Challenge of
Intergovernmental Investigative Illegality, 99 Iowa L. Rev. 293,
311 (2013).
When states, like New Jersey, began to impose more
protective procedures under their state constitutions, it
constituted a twist on the old “silver platter” doctrine.
Before the Fourth Amendment applied to the states, evidence
would pass from state officers -- unburdened by the Fourth
Amendment -- to federal authorities on a silver platter.
Mollica, supra, 114 N.J. at 346-47. But as judicial federalism
gained a foothold, “evidence [could] now flow to state officers
from federal officers governed by more lenient standards.” Id.
at 351. The Mollica Court detailed the jurisdictional limits of
a state constitution, which “ordinarily governs only the conduct
of the state’s own agents or others acting under color of state
law.” Id. at 345. Just as a state constitution does not
constrain officers of other states, “state constitutions do not
control federal action.” Id. at 352. Thus, it does not offend
the New Jersey Constitution when an officer of another
jurisdiction transfers criminal evidence to New Jersey law
5
enforcement, so long as that out-of-state officer obtained the
evidence lawfully and independent of New Jersey authorities.
Id. at 353.
Applying those principles to the case at hand, the Mollica
Court explained that the telephone billing records “were
obtained by federal agents exercising federal authority in a
manner that was in conformity with federal standards and
consistent with federal procedures.” Id. at 354. Once legally
seized, nothing prevented the federal agents from turning over
the telephone record evidence to state authorities, even if its
seizure violated state constitutional standards. Id. at 355.
But that turnover was subject to a “vital” limitation: “When
such evidence is sought to be used in the state, it is essential
that the federal action deemed lawful under federal standards
not be alloyed by any state action or responsibility.” Ibid.
Mollica’s holding and analysis remained tethered to Hunt’s
warrant requirement, mindful of the burdens that the warrant
requirement would impose on joint federal-state investigations.
See id. at 356 (recognizing that “antecedent mutual planning,
joint operations, cooperative investigations, or mutual
assistance between federal and state officers may sufficiently
establish agency and serve to bring the conduct of the federal
agents under the color of state law”). Thus, when it comes to
telephone billing records, our Court in Hunt and Mollica could
6
not have been clearer: A warrant supported by probable cause is
required. And, equally clear is this: The Court knew precisely
the burdens that a warrant requirement for telephone billing
records would impose on joint federal-state investigations.
Mollica addressed the prime concern that, the State now
asserts, renders the warrant requirement unworkable, namely that
federal officers can obtain telephone billing records before
their state counterparts. To us, Hunt resolved the issue. And
Mollica reaffirmed it. Both treated the privacy interest in
telephone billing information equally, and the privacy interests
were not place-based. In each, the Court demanded a probable
cause showing and review by a judicial officer before the State
could trench on the private matters disclosed through the
telephone billing records. Certainly, the warrant requirement
and its probable cause standard might impede joint federal-state
operations, but the privacy interest was great enough, in our
Court’s view, to justify that impediment.
That was our law, our proud law. The State’s argument does
not justify tossing aside the standard that has governed in this
State for more than thirty years. In any case where this Court
imposes a warrant requirement under Article I, Paragraph 7, and
that requirement is lacking under federal law, federal law
enforcement officers will be able to proceed more quickly than
their New Jersey counterparts. Federal officers may choose not
7
to wait for a warrant, and that will mean that, in cooperative
investigations, the seized evidence will be inadmissible in a
New Jersey prosecution. That is a necessary and established
consequence of doing business under a privacy-protective state
constitution. The State’s recycling of the same complaints
about that consequence does little to advance its argument that
Hunt is “unworkable in practice.”
II.
The State also asserts that New Jersey is an outlier, a
fringe jurisdiction. It argues that law enforcement can obtain
telephone billing records almost everywhere else on the
authority of a grand jury subpoena grounded in a relevancy
finding, but we require a warrant.
In our view, that argument sets a false equivalency. The
starting point for any nationwide comparison is not all fifty
states but those states that have departed -- like we have --
from Fourth Amendment law that holds that “a person has no
legitimate expectation of privacy in information he voluntarily
turns over to third parties.” Smith v. Maryland, 442 U.S. 735,
743-44, 99 S. Ct. 2577, 2582, 61 L. Ed. 2d 220, 229 (1979); see
also United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619,
1624, 48 L. Ed. 2d 71, 79 (1976). Only about eleven states have
done so. See Stephen E. Henderson, Learning from All Fifty
States: How to Apply the Fourth Amendment and Its State Analogs
8
to Protect Third Party Information from Unreasonable Search, 55
Cath. U. L. Rev. 373, 376 (2006). It is thus entirely
unsurprising that most states require only a grand jury
subpoena. That simply mirrors the federal standard. In those
states, there is no protectable privacy interest in telephone
billing records under either the Fourth Amendment or the state
constitution’s search-and-seizure provision; accordingly, it
should be easier for law enforcement to obtain those records.
Once the comparison point is properly cut down, the
analysis is more balanced. In some states, like ours, that have
rejected the third-party doctrine, and have in turn found a
protectable privacy interest in certain telephone records, a
warrant supported by probable cause is required before the
government can access such information. See, e.g., State v.
Rothman, 779 P.2d 1, 7 (Haw. 1989) (recognizing expectation of
privacy in “telephone numbers [persons] call on their private
lines” and requiring government to obtain warrant before
“tap[ping] . . . private telephones to obtain such information,
or requir[ing] the telephone company to supply such
information”); State v. Thompson, 760 P.2d 1162, 1167 (Idaho
1988) (“Since there was no warrant based on probable cause for
the installation and use of the pen register in this case, the
information obtained by its use should have been excluded from
the determination of probable cause for the issuance of the
9
wiretap orders.”); State v. Gunwall, 720 P.2d 808, 813 (Wash.
1986) (holding that Washington Constitution “prevent[s] the
defendant’s long distance home telephone records from being
obtained from the phone company, or a pen register from being
installed on her telephone connections, without a search warrant
or other appropriate legal process first being obtained”). In
others, however, a subpoena bounded by a relevancy standard may
do the job, at least in the grand jury context. See People v.
Mason, 989 P.2d 757, 761-62 (Colo. 1999).
In its rush to resolve what it views as a tension in our
case law, the majority creates another one. Presumably after
this appeal, the State will still use a communications data
warrant to install a pen register or a trap-and-trace device so
that it can track, in real time, calls made and received.
Although some courts have recognized a distinction between real-
time and historical data, we have not. See Hunt, supra, 91 N.J.
at 344 (“The expectation of privacy in a pen register, both
subjectively and objectively, is substantially similar to that
in toll billing records.”); see also People v. Larkin, 239 Cal.
Rptr. 760, 762 (Ct. App. 1987) (“A pen register, providing
information about outgoing and incoming calls, involves the same
privacy rights as toll information in phone company records.”);
Stephen E. Henderson, Beyond the (Current) Fourth Amendment:
Protecting Third-Party Information, Third Parties, and the Rest
10
of Us Too, 34 Pepp. L. Rev. 975, 1016 (2007) (“[T]he acquisition
of telephone numbers dialed in real time via a pen register is
equivalent to the acquisition of those numbers from a telephone
company record. Therefore, the constitutional restraint on
government access should be identical. Both processes acquire
the same information, and it is no more invasive to have
information captured in real time.”).
Even those federal courts that have avoided following Smith
and Miller third-party-doctrine principles when it comes to
location information require a warrant for such requests by law
enforcement. See United States v. Graham, 796 F.3d 332, 345
(4th Cir. 2015) (holding that because users have a reasonable
expectation of privacy in historical cell-site information,
“[i]ts inspection by the government, therefore, requires a
warrant, unless an established exception to the warrant
requirement applies”).
Notably, this Court’s decision in Earls, supra, did not
draw a distinction between a real-time request for cell-site
information and historical data. 214 N.J. at 588. And such a
distinction can prove highly superficial. For data to be
historical, it need not be far removed in time. When a law
enforcement officer requests a cellular provider to relay a
target’s telephone records in hour-by-hour intervals, it is
technically a request for historical records. Any delay -- no
11
matter how short -- can turn data into historical data. See
State v. Perry, 776 S.E.2d 528, 535 (N.C. Ct. App. 2015)
(calling location information “historical” when “evidence
show[ed] AT&T emailed the delayed recorded information to [law
enforcement] every fifteen minutes”).
The incongruity we see in the outcome reached by the
majority, at the State’s urging, is that, under the majority’s
new holding, to follow a suspect’s telephone activity as it
happens requires a judicial warrant based on probable cause.
But if the police want the suspect’s telephone records two or
three minutes after the call is completed, a warrant based on
probable cause is not necessary. It is not the move from a
warrant to a judicially reviewed subpoena that is the most
troubling. After all, a subpoena is a commonly used device to
request documents. It is the lessening of the standard from
probable cause to relevancy. Now a watered-down grand jury
subpoena will suffice for telephone billing records, so long as
there is judicial oversight to ensure that a relevancy standard
is met, somehow, for the particular investigation. Because
relevancy sweeps broadly, particularly at the beginning stages
of a criminal investigation, one must ask what exactly is the
point then of an Article I, Paragraph 7 privacy interest.
Relevance governs the breadth of a grand jury’s subpoena power
anyway. Pressler & Verniero, Current N.J. Court Rules, comment
12
2 on R. 1:9-2 (2015) (“With respect to grand jury
investigations, relevance continues to constitute the standard
for appropriate issuance of a subpoena duces tecum . . . .”).
In reaching its conclusion, the majority places a good deal
of weight on this Court’s decision in State v. McAllister, 184
N.J. 17, 32-33 (2005), in which the Court recognized an Article
I, Paragraph 7 privacy interest in bank records. That interest
was protected by only a grand jury subpoena based on a relevancy
standard. Id. at 36. Next in line was State v. Reid, 194 N.J.
386 (2008). There, the Court determined that subscriber
information held by an Internet Service Provider was also
protected by the New Jersey Constitution. Id. at 399. Pointing
to McAllister, the Court said a grand jury subpoena was
sufficient to protect that interest. Id. at 403-04.
From those cases, the majority sees a need to make our
privacy law jurisprudentially consistent. Hunt, it says, is out
of tune with the rest of our law. To accomplish that, the
majority drops the level of protection for telephone records and
says that for those records a relevancy standard is more than
enough. Because McAllister and Reid held a grand jury subpoena
sufficient, we should do the same here. We disagree.
In our view, the State benefited in McAllister from the
reality of a reduced expectation of privacy that bank records
have due to the well-known regulatory review and reporting
13
requirements on transactional behavior. 31 U.S.C.A. § 5313(a)
grants the Secretary of the Treasury broad authority to
prescribe when domestic financial institutions involved in
monetary transactions must “file a report on the transaction.”
See also 31 C.F.R. § 1010.311 (“Each financial institution other
than a casino shall file a report of each deposit, withdrawal,
exchange of currency or other payment or transfer, by, through,
or to such financial institution which involves a transaction in
currency of more than $ 10,000, except as otherwise
provided[.]”). The Treasury Secretary may, moreover, “require
any financial institution, and any director, officer, employee,
or agent of any financial institution, to report any suspicious
transaction relevant to a possible violation of law or
regulation.” 31 U.S.C.A. § 5318(g)(1); see also 31 C.F.R. §
1020.320(a)(1) (enforcing that requirement). The Court’s lesser
concern with bank customer privacy expectations and rights was
registered by its willingness to allow subpoenas without prior
notice to the target. McAllister, supra, 184 N.J. at 42.
That lesser concern with privacy rights is a far cry from
the traditional respect shown to telephone records and suggests
that bank records should be regarded as the outlier case, not
Hunt or Mollica. Reid relied on McAllister in the new world of
internet subscriber information. Given its limited scope -- the
State concedes that a search warrant is required to gain access
14
to a full internet search history -- Reid should hardly be
regarded as the “new” assessment of privacy rights historically
respected in this State. Nothing in either McAllister or Reid
suggests that we intended to turn the entirety of our privacy
law on its head.
It is particularly perplexing that the Court holds as it
does now, at a time when we are more dependent on our telephones
than ever before. We are in contact all the time through cell
phones. And the associational concerns that drove Hunt, and
were present in Earls too, are no less weighty today. See Hunt,
supra, 91 N.J. at 351-52 (Pashman, J., concurring); Earls,
supra, 214 N.J. at 586. Our jurisprudence now protects, through
a warrant requirement, the location of those phones but not who
we are calling or who is calling us. The majority asserts that
it is striving for consistency in our jurisprudence as
justification for tossing aside Hunt and Mollica. To us,
consistency is to be found in answering the question here in the
same way we have dealt with the protection of privacy interests
in telephone information in Hunt, Mollica, and Earls. A warrant
issued on the basis of probable cause should remain the
prerequisite to access telephone billing records. This case
should have been an unremarkable application of a consistent
line of cases addressing law enforcement access to private
telephone records.
15
III.
In sum, even if we are an outlier compared to those
jurisdictions that allow law enforcement access to telephone
billing records through means short of a warrant issued on
probable cause, that alone is not a reason to change our law.
This Court has been a leader in privacy rights, proudly
proclaiming that Article I, Paragraph 7 is not simply “a
procedural matter” but “a reaffirmation of the privacy rights
guaranteed to our citizens and of our duty as judges to secure
them.” State v. Eckel, 185 N.J. 523, 540 (2006). It did not
bother us that we were an outlier in Hunt. And it did not
bother us that we were an outlier in Mollica. Why then should
it bother us now? So fixated on aligning our state
jurisprudence with the federal standard, we fear the State, and
now the majority, has sacrificed our law for the sake of that
uniformity. We are unpersuaded that any legitimate basis for
overturning our precedent -- for that is what is happening here
no matter how the analysis is dressed up -- is present here.
Accordingly, we respectfully dissent.
16
State v. Gary Lunsford (075691)
Court: Supreme Court of New Jersey
Date filed: 2016-08-01
Citations: 226 N.J. 129, 141 A.3d 270
Copy CitationsCombined Opinion