NJ Supreme Court to Hear Arguments – Should Phone Records be Accessible by Subpoenas or Warrants?

The New Jersey Supreme Court has agreed to hear arguments about the process needed to safeguard state constitutional privacy rights. In New Jersey, a warrant is currently required to access telephone billing records. Another New Jersey Supreme Court ruling from the 1980s, State v. Hunt, established that the New Jersey State Constitution grants privacy protections beyond those guaranteed by the US Constitution as interpreted by the US Supreme Court in Smith v. Maryland.

Gary Lunsford is fighting a Monmouth County subpoena that seeks his call detail records for a two week period along with other information. The New Jersey Attorney General’s office superseded the Monmouth County prosecutor’s office in this case. Assistant Attorney General Ronald Susswein has argued that phone records are comparable to bank, utility, and internet records. Currently, Susswein claims, New Jersey law enforcement cannot access phone records early enough in an investigation to be of benefit. If his argument holds, law enforcement should be allowed to access phone records by subpoena rather than a warrant. New Jersey Superior Court Judge John Mullaney, Jr. had previously agreed with Lunsford’s argument. “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.

In the state’s appeal Susswein asks the Supreme Court to focus on the following question: Is a grand jury subpoena adequate to protect the state constitutional privacy interest in phone records that was recognized in that case?

Lunsford’s attorney, Dean Schneider, had previously cited 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. The original appeal 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.” Schneider has argued that Lunsford’s information in question is 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.”