Just about everyone is acquainted with the convenience of cellphones. But, what happens if they are allegedly used in conjunction with some type of crime? Do the police need to secure a warrant before they can examine telephone records? Can they merely issue a subpoena? Or, are the accused entitled to a certain amount of privacy?
For nearly three decades, the answer was the same. In order to investigate calls made to and from a particular phone number, law enforcement authorities were required to seek out a communications data warrant (CDW). This type of warrant is similar to a search warrant, but pertains to telephone records.
The necessity for a warrant has changed according to a new case just ruled on by the New Jersey Supreme Court. In their decision, State v. Gary Lunsford (075691) (A-61-14), the court considered the need for a warrant during a criminal investigation. The new determination specifies the requirement for a court order.
New Case Deals With Production of Telephone Records
Gary Lunsford was suspected of criminal activity relating to the sale of illegal drugs. In order to investigate their suspicions, law enforcement officials obtained a search warrant for Lunsford’s residence. The search was conducted in Mid-May of 2014.
A little more than a month later, a subpoena was requested by the grand jury and granted to obtain Lunsford’s cellphone records. The initial subpoena not only sought telephone records, but also required information concerning the phone’s global positioning system (GPS). The purpose was to document information regarding the sale of controlled dangerous substances (CDS).
The subpoena was recalled and a new one issued. Precedential case law required the need for a search warrant to obtain GPS tracking details instead of a subpoena. The new subpoena solely requested telephone records. This would include cellphone subscriber information, as well as the calls made back and forth for a specified two week period.
Lansford’s counsel made a motion to quash the subpoena. As we mentioned before, it had always been necessary for the state to seek out a communications data warrant. Why make the process easier?
The law regarding the state’s procurement of telephone records is found here. In short, the State must demonstrate the necessity of the request as it pertains to a criminal investigation. This means providing real facts and showing probable cause. The application must also define a relevant time period.
In its latest ruling, the Court decided it was no longer necessary for the State to obtain a warrant to secure telephone records. However, a subpoena was not enough as it did not require a judge’s signature. Privacy concerns are a constitutional right. In order to obtain telephone records, a court order is required. The judge will review the matter after considering the presented facts and time period.
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At the Law Offices of Beninato & Matrafaljo, we have decades of experience in criminal law. If you have a pending matter and would like us to review your situation, please contact us.
