On August 1, 2016, the New Jersey Supreme Court decided the case of State v. Lunsford. In a 5-2 decision, the Court held that telephone billing records should be available to police based on a showing of relevance, as opposed to the higher “probable cause” standard generally required for a search warrant to issue.
The underlying facts were that after the police arrested the defendant, law enforcement sought and the Monmouth County Grand Jury issued a subpoena to a wireless telephone service provider requesting subscriber information associated with defendant’s cell phone number. The cell phone number that law enforcement had was the mode of contact that was used for the alleged 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.
Recently retired Monmouth County Judge Mullaney granted the defense motion to quash the subpoena, stating that, under State v. Hunt, a 1982 New Jersey Supreme Court case, a communications data warrant (CDW), which is the equivalent of a search warrant, is needed to obtain telephone billing records. In issuing their decision, the majority noted that the Hunt Court did not address the specific procedure required for the State to obtain the information at issue, but only that a judicial sanction or a judicial proceeding, as opposed to a grand jury subpoena, is necessary.
The majority noted that bank records can be obtained through a grand jury subpoena, upon a finding that the records are relevant. In announcing the change of law at the heart of the case, the majority reasoned that 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. In address these inconsistent standards, the Court chose to give less privacy protections to billing records. An alternative would have been to bestow greater privacy protections upon bank records. Admittedly, though, bank records were not the issue before the Court so any such change of law would have had to come from a later case. Unfortunately for advocates of maximum privacy protections, that day will not soon come in light of the Lunsford decision.
The majority went on to hold that: 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. 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.
The majority reasoned that 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. Skeptics would counter that there is very little public oversight regarding the statistics related to these ex parte applications. Therefore, there is still the potential for abuse from prosecutors and judges.
In dissent, Justice LaVecchia was joined by Judge Cuff, who has now been replaced on the Supreme Court by Justice Timpone. In disagreeing with the majority, they expressed the view that State v. Hunt established a warrant requirement for police access to telephone billing records and that precedent should control.
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