On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1340.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Skillman and Roe.
The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).
The primary issue presented by this appeal is whether the use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, violates the Fourth Amendment or Article I, paragraph 7, of the New Jersey Constitution. We conclude that the use of such information to determine a suspect's general location on public roadways or other places in which there is no legitimate expectation of privacy does not violate the suspect's constitutional rights.
Defendant was indicted for burglary, in violation of N.J.S.A. 2C:18-2; theft of movable property, in violation of N.J.S.A. 2C:20-3(a); receiving stolen property, in violation of N.J.S.A. 2C:20-7(a); and possession of marijuana, in violation of N.J.S.A. 2C:35-10(a)(3). Defendant filed a motion to suppress the evidence against him. Following a three-day evidentiary hearing, the trial court delivered a comprehensive oral opinion granting the motion in one limited respect, but denying the motion as to most of the evidence against defendant. Defendant then entered into a plea bargain under which he agreed to plead guilty to the burglary and theft charges, and the State agreed to recommend an aggregate sentence of seven years imprisonment, with three years of parole ineligibility. The trial court sentenced defendant in accordance with the plea bargain to an extended seven-year term, with three years of parole ineligibility, for burglary, and a concurrent five-year term, with two-and-a-half years of parole ineligibility, for theft of movable property.
Defendant filed an appeal from the judgment of conviction, which we heard on an excess sentence calendar. See R. 2:9-11. We affirmed defendant's sentence as not excessive by an oral opinion and order entered on June 23, 2009.
Defendant subsequently filed a motion to reopen his appeal to challenge the denial of his motion to suppress, which we granted. The State has not cross-appealed from the part of the trial court order suppressing a limited part of the evidence against defendant.
The searches that revealed the evidence upon which defendant's convictions are based were the result of a Middletown Township Police Department investigation of a series of residential burglaries. The victim of one of the burglaries reported that a cell phone taken from his home was still in active use. The police obtained a communications data warrant authorizing them to monitor the incoming and outgoing calls on this phone, which enabled the police to determine the identity of the person in possession of the phone. When the police arrested that person, he told them he had purchased the phone from defendant. That person also told the police defendant had been engaged in a series of residential burglaries and that he kept many of the items he had stolen in a storage unit leased either by defendant or his girlfriend, Desiree Gates.
The police subsequently located Gates and told her they believed defendant was keeping stolen property in a storage unit she had leased with him. Gates stated that she and defendant previously had a boyfriend-girlfriend relationship and confirmed they had leased a storage unit together. After Gates agreed to cooperate with the police, she showed them the storage facility where she and defendant had leased a unit. Although defendant paid the rent for the unit, it was leased solely in Gates' name, and Gates stored her summer clothing in it. However, defendant retained the sole key.
After the police arrived at the storage facility with Gates, she executed a written consent for the police to search the unit. Since Gates did not have a key, she also executed a form provided by the storage facility authorizing the breaking of the lock. Pursuant to these authorizations, the police entered the unit, where they discovered a substantial quantity of what appeared to be stolen property, including golf clubs, electronic equipment such as flat screen televisions, expensive jewelry, and sports memorabilia. Gates told the police the storage unit had contained only her property the last time she had been there and that she was unaware defendant was using it to store stolen property. The police seized the apparent stolen items and returned to police headquarters in the late afternoon.
Based on the evidence discovered in the storage unit and other evidence gathered in their investigation, the police obtained a warrant for defendant's arrest. In addition, Gates' cousin told the police defendant had threatened to harm Gates when he found out Gates had allowed the police access to the storage unit and that she had not seen Gates since the search of the unit. Consequently, Gates's cousin expressed concern about Gates's safety. The police undertook to find defendant both to execute the arrest warrant and to assure that he did not harm Gates.
In an effort to locate defendant for these purposes, the police contacted T-Mobile, which was defendant's cell phone carrier. T-Mobile was able to determine defendant's general location at any given time because every seven seconds, a cell phone scans for the strongest signal, which is usually from the nearest tower, and then registers with that tower by sending in a signal to identify itself. See In re Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 750 (S.D. Tex. 2005). T-Mobile first notified the police around 8 p.m. that defendant was in the general area of Route 35 in Eatontown and then, after the police again contacted T-Mobile around 9:30 p.m., it notified them that defendant was in the general area around Routes 33 and 18 in Neptune. However, the police were unable to locate defendant in either of those areas. Around 11 p.m., the police again contacted T-Mobile, which notified them that defendant's cell phone was emitting signals in the general area of Route 9 in Howell. A search of that area revealed defendant's car in a motel parking lot.
By speaking with the clerk in the motel office, the police were able to determine the room in which defendant and Gates were staying. The police called the room, spoke to Gates, and later arrested defendant when he came to the door. At that time, the police observed a flat screen television and luggage in the middle of the room. The police entered the room and seized those items, which they brought back to police headquarters. While in the room, the police opened a dresser drawer in which they found a pillowcase filled with stolen property, which they also brought back to police headquarters.
After the police brought defendant to headquarters, he signed written consents for the police to search the luggage seized in the motel room. The searches of the luggage ...