Supreme Court of New Jersey Increases Protections for Cellphone Billing Records in State of New Jersey v. Lunsford

By Eric R. Breslin

Cellular telephone billing records are another mundane aspect of modern life. They arrive monthly in the mail or online and hardly anyone I know (at least) spends any great amount of time reviewing them for accuracy or content. In most households, they go into the “to be paid” pile, where they reside until processing.

But telephones are no longer just telephones and cellular telephone bills, if parsed thoroughly and knowingly, can reveal on their face a startling amount of personal information and can provide entrée to much more. In 2016, cellular telephones must be viewed as small super computers and cellular telephone bills can yield as much information as banking or credit cards records can, if not more.

So, what should the government have to do in order to gain access to this potential treasure trove? This was the question addressed by the Supreme Court of New Jersey last month in State of New Jersey v. Lunsford.

Mr. Lunsford, it was alleged, was in the illegal drug business. As is often the last act in this type of drama, the police arrested him and executed a search warrant on his home. A short time later, a grand jury in Monmouth County issued a subpoena duces tecum to his wireless telephone service provider seeking information related to his cellular telephone. This information included customer billing records well as “call-detail records” which identify the numbers and timing of all incoming and outgoing calls.

Mr. Lunsford filed a motion to quash arguing that this information could not be subpoenaed, but need to be obtained only via a communications data warrant, the equivalent of a search warrant. This motion to quash was granted and after some procedural issues, the case ended up in the Supreme Court of New Jersey.

In an opinion written by Chief Justice Rabner, the Supreme Court agreed with the trial court, holding that due to many personal private affairs they provide access to, cellular billing records are worthy of constitutional level protection.

Thus, in order to gain access to these records, law enforcement must show relevance and this showing must receive the imprimatur of direct judicial oversight of the entire process. In short, a warrant is needed, not just a subpoena. And in obtaining such a warrant, the State is tasked with showing “specific and articulable” grounds to demonstrate that these records are relevant and material to an ongoing investigation.

A victory for privacy and process.

If you are interested in New Jersey search and seizure issues, I invite you to follow me on Twitter at @erb789.

Duane Morris’ Michael E. Clark to Present at ABA’s Foreign Corrupt Practices Act Mock Trial Institute

Duane Morris special counsel Michael E. Clark, who is this event’s co-chair, will also present during several sessions at the American Bar Association’s (ABA) First Annual Foreign Corrupt Practices Act Mock Trial Institute, to be held on November 16–17, 2016, in Houston, Texas.

On Wednesday, November 16, Mr. Clark will participate in the following sessions: “Jury Selection and Voir Dire,” at 8:30 a.m.; “Initial Jury Charge and Opening Statements” at 10:00 a.m.; “Government Witness Two: FBI Agent” at 10:45 a.m.; and “Defense Witness One – Henry Hornsby” at 2:00 p.m. On Thursday, November 17, Mr. Clark will be a panelist on the topic, “Session One: Discussion of Key Strategies, Issues and Themes in the FCPA Trial,” at 8:30 a.m.

Continue reading Duane Morris’ Michael E. Clark to Present at ABA’s Foreign Corrupt Practices Act Mock Trial Institute

The Supreme Court of New Jersey Narrows the State’s Expungement Statute

N.J.S.A 2C: 52-2(a) permits the Superior Court to expunge convictions of certain classes of offenses under certain enumerated circumstances. As one example, the applicant seeking the remedy must have been “convicted of a crime,” but “…not convicted of any prior or subsequent crime.” The statute also bars from eligibility those who plead guilty in one proceeding to multiple offenses committed within a short period of time.

But what exactly does this last limitation mean in practice? Last week, the Supreme Court of New Jersey addressed and answered this question in In the Matter of the Expungement Petition of J.S. (A-84-13) and In the Matter of the Expungement of the Criminal Records of G.P.B, (A-2-14). So now while a quantum of doubt has been eliminated (and that is always a good thing), the statute is now more restrictive (and, for defense practitioners, this is decidedly not a good thing). Continue reading The Supreme Court of New Jersey Narrows the State’s Expungement Statute

Supreme Court of N.J. Issues Two Significant Search and Seizure Opinions

Partner Eric R. Breslin, in Newark, discusses the uptick in the Fourth Amendment search and seizure and ancillary privacy litigation in the last few years in the New Jersey courts. In just April and May 2015, the state Supreme Court issued two significant opinions that would impact both the Fourth Amendment and proper admission into evidence of monitored telephone calls from State of New Jersey v. Ricky Wright and State of New Jersey v. Kingkamau Nantambu. Even through a quick look at the court’s docket for the upcoming term has shown even more decisions coming.

To read the full text of the article, please visit the Duane Morris website.

Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The “private search doctrine” is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a “search” and discovers some species of contraband or proof of illegal conduct.   That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue. Continue reading Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

Can an audio tape with a two minute “gap” in it be admitted into evidence?: The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Audio tapes and video tapes are a frequent coin of the realm in both federal and state criminal practice. It is increasingly rare to find a major prosecution in which the government’s discovery does not now include some form of recording. There are multiple paths of varying effectiveness through which intrepid defense counsel can seek to exclude this evidence. One of the more straightforward is if the recording in question can be argued to have been incomplete in some way.
Now, one might assume that a partial recording, even if relevant, would be so inherently suspect as to preclude admission under Rule 403 of the Federal Rules of Evidence or one of its state law counterparts. But this would be a perilous assumption. Incomplete or partial tape recordings can be admitted, once authenticated and found to be trustworthy, although it can be a challenging and convoluted analysis. One such scenario was addressed last week by the Supreme Court of New Jersey in State of New Jersey v. Kingkamau Nantambu. Continue reading Can an audio tape with a two minute “gap” in it be admitted into evidence?: The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).

18 U.S.C. 2113 (e) has a long and venerable history, even by the storied standards of the federal criminal code. It was originally enacted in 1934 in response to “an outbreak of bank robberies committed by John Dillinger and others” Carter v. United States of America, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting).

In addition to robbing banks, these malefactors would, logically enough, then seek to avoid apprehension. In order to do this, they would frequently pause to take hostages, thus distracting and/or hamstringing pursuing law enforcement. Continue reading Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).

Duane Morris Partner Joseph M. Burton Discusses the “4 Steps to Getting Serious About Law Firm Cybersecurity”

The need for better cybersecurity, along with the responsibility to safeguard client and firm information from the risk of loss from cyberattack, has been the focus of considerable discussion by law firms for the past four years. While some law firms have recently awakened to this key issue, significant further work needs to be undertaken. Let’s look at the progress (or lack thereof) of law firm security over this four-year period — and four ways firms could improve both the speed and effectiveness of their cybersecurity going forward.

To read the full version of the article written by Duane Morris partner Joseph M. Burton, please visit the Law Practice Today website.

Duane Morris Partner Eric Breslin Appointed to New Jersey Supreme Court Criminal Practice Committee

Eric Breslin, a partner with law firm Duane Morris LLP, has been appointed to the New Jersey Supreme Court Criminal Practice Committee. Breslin, a litigator in the firm’s Newark office, will serve on the committee through August 2015.

The Criminal Practice Committee reviews cases and issues referred to it by the state Supreme Court and makes recommendations regarding revisions and amendments to the New Jersey Rules Governing Criminal Practice. The rules dictate practice and procedure in all criminal proceedings in the state’s courts, including the municipal courts.

Continue reading Duane Morris Partner Eric Breslin Appointed to New Jersey Supreme Court Criminal Practice Committee

Duane Morris Partner Mauro M. Wolfe Named to Council of Urban Professionals’ CUP Catalysts: Change Agents 2013 | Law

Duane Morris partner Mauro M. Wolfe has been named to the Council of Urban Professionals’ second annual list of CUP Catalysts: Change Agents 2013 | Law. The list highlights and celebrates the accomplishments of diverse leaders across the legal sector who have achieved extraordinary success in business and have made a significant impact on their community. These individuals will be recognized at CUP’s 4th Annual Lawyers Forum on October 29, 2013.

The CUP Catalysts: Change Agents 2013 | Law list comprises 15 legal professionals, between the ages of 35-50, who serve at senior levels of organizations, and who have been nominated by their colleagues and peers. For the full list of CUP Catalysts in Law, visit the Council of Urban Professionals’ website.