NJ: Getting GPS location data from cell phone provider so defendant could be located to be arrested did not violate Fourth Amendment

Getting GPS location data from cell phone provider so defendant could be located to be arrested did not violate the Fourth Amendment or the N.J. Constitution. State v. Earls, 420 N.J. Super. 583, 22 A.3d 114 (2011):

Similarly, in Devega, the police ascertained a murder suspect’s general location on a public highway by having his cell phone provider “ping” his phone. 689 S.E.2d at 299. In rejecting the defendant’s argument that his trial counsel had been ineffective in failing to move for suppression of evidence on the theory that such electronic monitoring violated the Fourth Amendment, the court stated:

“The GPS tracking device [and ‘ping’ information] in the case at bar is simply the next generation of tracking science and technology from the radio transmitter ‘beeper’ in Knotts, to which the Knotts Fourth Amendment analysis directly applies.” … Because the warrantless monitoring of his cell phone location revealed the same information as visual surveillance, there was no Fourth Amendment violation.

[Id. at 300 (quoting Stone, supra, 941 A.2d at 1250).]

We conclude, as did the courts in Forest and Devega, that the use by the police of information obtained from T-Mobile concerning defendant’s general location, derived from signals emitted by his cell phone, which together with visual surveillance resulted in discovery of his car in a motel parking lot, did not violate any legitimate expectation of privacy defendant may have had regarding the location of his car. As in Knotts, “[w]hen [defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction … and the fact of his final destination” at the motel, 460 U.S. at 281-82, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them,” id. at 282, 103 S. Ct. at 1086, 75 L. Ed. 2d at 63.

We reach the same conclusion under Article I, paragraph 7, of the New Jersey Constitution. …

I can’t decide whether this case is correct as far as it goes. Five years ago, I wouldn’t have thought about it like I do now, and I am troubled by the future. Everybody should be. While we wring our hands over the planted GPS case, what of using the fact that all cell phones sold in the U.S. since 2008 have GPS in them? Can the government uniformly follow anybody by the GPS in their telephones without a warrant? It’s a Brave New World, and it scares the hell out of me.