It’s getting to where I feel like a broken record even to myself… but this stuff’s important, thus the cases will keep coming, and so we soldier on. But I will try and be brief.
I have previously posted against categorical prohibition of geofence warrants, worked through the dizzying array of opinions in the Fourth Circuit’s Chatrie en banc, considered a somewhat better decision by the Superior Court of New Jersey Appellate Division (including working through how the ABA Criminal Justice Standards handle location information), and looked at an opinion by the Supreme Court of Ohio holding that a single datum of location is unprotected.
Today, we are back to that ‘Part 3,’ because there is a new opinion by the NJ Superior Court’s Appellate Division… and this time it is precedential, whereas the previous Van Salter was unpublished. The opinion is State v. Bryant, No. A-1399-24 (N.J. Super. Ct. App. Div. Dec. 4, 2025), and while it would have been nice if the court could have referred to its own Van Salter… yeah, we just said that one was unpublished. (Maybe there ought not be unpublished opinions, but that’s too much of a tangent for today.)
Bryant involves a home invasion robbery and sexual assault. And just when we thought humans couldn’t get any worse (I know… we didn’t actually think that, but still)… this crime was the brain child of the victim’s father. That’s right—dad needed money, he thought his daughter and her family (her husband and two young children) would have it, and so he sent two men who not only robbed at gunpoint, but one of whom sexually assaulted her. We didn’t need a reminder that humans can be absolutely awful, but we got one anyway.
Fortunately, the perps used cell phones—including to phone the victim’s dad—and were caught on cameras, so they will be held accountable, and that’s going to stick despite the appellate court now tossing the results of some cell tower dumps. (The state was able to prove inevitable discovery even as to the helpful cell phone evidence.) What’s key about Bryant in terms of legal precedent is that it follows the Van Salter line—tower dumps (like other geofence requests) can be constitutional. That’s good. And it’s also good the court held that the request here—a request covering a 193 square mile search area, resulting in 10,477 hits, and asking for social security numbers and dates of birth for every hit—was bogus.
What’s less good, just like in Van Salter, is that the court did not attempt to discern how private/protected is this location information, nor did it provide any sort of algorithm for what hit ratio ought to be necessary for access. Instead, the court held that tower dumps require warrants, and it seemed to think probable cause was a no brainer—we know there was a robbery and sexual assault—and that particularity was the problem. Now, in a sense, we don’t so much care whether the ‘problem’ is considered one of justification standard (e.g., probable cause) or one of particularity—the two certainly dance together, with a warrant needing to specify with particularity things officers have probable cause to seize. But consider where its analysis led the Bryant court:
“There was no probable cause to believe that thousands of individual cell phone users were involved in the home invasion, robbery, and sexual assault that took place at a particular apartment on November 29, 2020.”
True. But imagine the police were able to narrow the request so it would have resulted in only ten hits. There would also not be “probable cause to believe that [ten] cell phone users were involved in the home invasion, robbery, and sexual assault,” as police suspected only three. That just doesn’t seem like the right question. The question is whether this invasion of privacy is reasonable, and I submit—as I’ve argued before—that hinges on (1) how private is this location information and (2) what hit ratio (imagined here as 3 to 10) the request can manage.
If, say, police can narrow down the suspects in a crime of three to ten persons, that of course is not proof beyond a reasonable doubt. Nor would it be reasonable to arrest all ten—that “probable cause” would be lacking. But some would urge permitting the search of ten homes: ‘Look, police have narrowed down the potential suspects from millions to ten; surely it is reasonable to search ten homes to solve a rape!’ One can also argue otherwise, but we see that “probable cause” is a slippery—albeit critical—concept, something we’ve long witnessed in Supreme Court decisions dealing with everything from administrative searches to street crime, and in the Court’s stubborn (and correct) unwillingness to assign probabilities to the constitutional requirement.
And if police can, in a serious crime committed by three, narrow down the suspects to ten persons and so want the mobile phone location records for those ten persons for a period of a few hours on a single day? I’d like police to get them. That’s reasonable to me, especially after a legislature does its job of declaring a system for figuring it to be so. (The state and federal legislatures haven’t done that job, to be clear; I’m saying they could and they should.)
In other words, we cannot know whether it is unreasonable for police to access data about ten, ten thousand, or even ten million persons in order to solve a crime… without knowing how private/protected is that data. If, say, it is merely one’s name (e.g., Stephen Henderson), search away. So, that the police request in Bryant was sufficiently egregious as to make for an easy case will not make the opinion do the necessary work when the more difficult case comes along.
I would again urge the system of the ABA Criminal Justice Standards, in which the decision-maker first decides both how private is the particular information requested and thus how protected it ought to be. Then the decision-maker can think on what hit ratios or other methods can satisfy that level of protection. I’ve written that up in my previous post and other work, so I won’t repeat the full argument here.
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