This case presents a novel constitutional question arising from the execution of a communications data warrant (CDW) that authorized the surreptitious installation of a global positioning system (GPS) device on a vehicle to electronically monitor its movements. The initial plan was to install the device while the vehicle was on a public street or in a public parking lot. When that failed, the State Police decided to install the device while the vehicle was parked on defendant's driveway. The CDW did not expressly authorize entry onto the driveway.
In determining whether the State Police violated defendant's constitutional rights when they went on his driveway to perform the installation, the court considers a series of sub-questions, including: was the portion of the driveway where the subject vehicle was parked part of the "curtilage" of defendant's home? If so, did the State Police have an "implied license" to step onto the private driveway and proceed to the subject vehicle to install the GPS device? If they did not have such license, did the CDW itself implicitly authorize their entry? Or were they required to obtain express judicial authorization to enter onto defendant's residential property, either in the initial CDW application or by going back to the judge who issued the CDW when they abandoned their initial plan to install the device while the vehicle was parked on public property?
The court concludes the driveway was part of the curtilage of defendant's home. The court further holds the State failed to establish that the State Police had "implied license" under the curtilage doctrine to approach the vehicle to install the GPS device, noting the State Police turned away from the pathway leading to the front door as they proceeded to the subject vehicle to attach the device. Additionally, the court holds that the implied license caveat to the curtilage doctrine would not in any event authorize police to enter the driveway for the purpose of installing a GPS device, since that is not something visitors would be expected or permitted to do.
The court thus concludes the State Police entry constitutes a search. The court also holds the CDW did not authorize that search, stressing the plain language of the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution requires a search warrant to particularly, not impliedly, describe the place to be searched.
The court adds that it would have been a straightforward matter for the State Police to supplement the CDW once their initial plan to install the GPS device on public property was frustrated. Recognizing the exclusionary rule serves an educative function, the court reminds police and prosecutors that having a strong basis for obtaining a search warrant does not excuse the requirement to get one before conducting a search. The court explains there is no probable cause exception to the warrant requirement; probable cause is a threshold prerequisite for a warrant, not a substitute for one.
The court notes the State at oral argument acknowledged that going forward, the better practice would be for police to preserve the option to enter upon a target's private property when installing a GPS device by asking the warrant judge for such authority when initially applying for a CDW or by seeking an amendment to the CDW if the practical need to enter upon private residential property later arises. The court adds that such prudence would help to protect both the constitutional rights of the target of the investigation and the admissibility of evidence derived from the GPS tracking.