A state Supreme Court precedent set more than 30 years ago may be overturned, if the state attorney general’s office has its way, criminal attorneys in New Jersey report. The precedent, established in the 1982 decision in State v. Hunt, 91 N.J. 338, requires police officers, law enforcement officials, and all other investigators to obtain a warrant before accessing telephone billing records. Now, Assistant Attorney General Ronald Susswein and his supporters think it’s time to do away with the precedent and open the door for warrantless access to these records.
Phone records—especially data collected from cellphones—allow a person to access private messages, location, and personal habits. Due to the sensitive nature of cell phone data and the privacy laws that are granted to all people in a criminal investigation, the state Supreme Court had previously held that the warrantless search and seizure of phone billing records was in violation of the state’s constitution, even though the act is permissible under the Fourth Amendment of the United States Constitution.
“As a result of the Hunt decision, telephone billing records have not been available to prosecutors until the later stages of a criminal investigation, when we already have sufficient information to make an arrest,” Susswein wrote. “The Hunt procedure thus delays investigations as compared to federal practice, where a grand jury subpoena is used to obtain these same third-party telephone billing records near the outset of a criminal investigation.” Susswein has asked prosecutors in the counties to identify test cases that could be used to demonstrate a need to overturn Hunt. He advised against subpoenaing phone records for violent crime investigations, but urged prosecutors to draft model briefs and offered his help whenever needed.
However, those who oppose Susswein’s idea say that more privacy protection is needed in this day and age, not less. As phone technologies advance, especially the technology used for cell phones, more and more data is stored and transmitted over the phone—text messages, email, phone calls, video chats, daily plans and meetings, and so forth. This widespread, daily use of cell phones makes people more vulnerable, should their information be exposed without their knowledge. Obtaining a warrant ensures that the information is not being used or investigated without a reasonable cause for suspicion in an ongoing investigation.
Some criminal attorneys in New Jersey have also pointed out that obtaining a warrant typically takes only a few hours, if that long, so Hunt does not delay the process of an investigation or arrest all that much. Although right now Susswein is only hoping to allow warrantless access to billing records, there is concern that this will lead to a greater push for records access.
The criminal defense attorneys at New Jersey law firm Helmer, Conley, and Kasselman, PA, represent anyone who has been charged with a crime, or who is part of an ongoing criminal investigation. Evidence against you must be collected in a fair and legal manner, and our criminal attorneys will ensure that your rights are not violated during the investigation and court proceedings. For representation or legal advice regarding your case, contact an HCK attorney today.