                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                    State v. Randy K. Manning (A-10-18) (080834)

Argued September 23, 2019 -- Decided January 13, 2020

ALBIN, J., writing for the Court.

        The primary issue in this appeal is whether, during the interim period between
passage of the amendment to the New Jersey Wiretapping and Electronic Surveillance
Control Act (Wiretap Act) in 2010 and the effective date of the Court’s decision in State
v. Earls, 214 N.J. 564 (2013), the constitutional warrant requirement and corresponding
suppression remedy applied to securing cell-phone location information. This appeal also
presents the issues of whether exceptions to the warrant requirement applied to securing
that information and whether those same exceptions also applied to securing call-detail
records under State v. Hunt, 91 N.J. 338 (1982).

       Here, in 2011, after the Wiretap Act amendment went into effect but before the
Court’s decision in Earls, law-enforcement officers -- without a warrant or court order
-- obtained defendant Randy K. Manning’s cell-phone records by submitting an exigent-
circumstances request to a cell-phone service provider. Thus, the constitutional propriety
of the police conduct depends on the application of the exigent-circumstances doctrine.

       On August 16, 2011, shortly after 8:00 a.m., the Bergen County Prosecutor’s
Office investigated the grisly murder of a victim who had died from multiple gunshot
wounds and whose charred body was found in the rear of his Chevy. Detectives secured
a judicially authorized warrant to search the vehicle. By the late afternoon or early
evening of August 16, Detective John Frazer had two pieces of information that made
defendant “a person of interest”: defendant’s fake California license was found in the
Chevy owned by his friend, the victim, and defendant’s timeline of his claimed
whereabouts seemingly conflicted with the victim’s cell-phone records.

       Despite the securing of a search warrant earlier for the Chevy, Detective Frazer
bypassed the warrant/court-order process and, that evening, submitted an exigent-
circumstances request form to AT&T for defendant’s cell-phone records. Detective
Frazer admittedly used the exigent-circumstances request “as an investigatory tool.”
Although the detective stated that applying for a search warrant “was not practical at that
time,” he conceded that he could have applied for a telephonic warrant. He gave no
estimate of the time that it would have taken to apply for a telephonic warrant or to
                                             1
prepare an affidavit for a search warrant. Nor did he estimate the time it would have
taken to secure a warrant, given that a Superior Court judge was on call.

       Based on the cell-phone records, defendant became the target of the investigation.
The next day, Detective Frazer submitted three separate and detailed affidavits in support
of three warrants, including one for a wiretap of, and another for further communications
data from, defendant’s cell phone. According to Detective Gary Boesch, on August 17,
defendant called the Bergen County Police Department and inquired whether the police
wanted to speak with him. The next day Detective Boesch returned defendant’s call. On
August 19, defendant took public transportation to the Hackensack bus terminal, where
Detective Boesch picked him up for questioning.

       The trial court denied defendant’s motion to suppress the warrantless search of his
cell-phone records based on the exigent-circumstances exception. Defendant was
convicted of murder, desecration of human remains, and related crimes. In an
unpublished opinion, the Appellate Division reversed defendant’s convictions on two
grounds and remanded for a new trial. First, the Appellate Division held that the trial
court erred in not granting defendant’s request for jury instructions on aggravated
manslaughter and reckless manslaughter -- lesser-included offenses to the charge of
murder. Second, the Appellate Division held that the failure of the police to secure a
warrant or court order for defendant’s cell-phone records should have resulted in the
suppression of those records.

      The Court granted the State’s petition for certification “limited to the issue of the
admissibility of the defendant’s cell phone records.” 235 N.J. 311 (2018).

HELD: During the three-year interim period between passage of the amendment to the
Wiretap Act in 2010 and the effective date of the Court’s Earls decision in 2013,
individuals possessed a reasonable expectation of privacy in cell-phone location
information cognizable under our State Constitution. As in other contexts, exceptions to
the constitutional warrant requirement -- such as consent or exigent circumstances
-- apply to securing cell-phone records. Therefore, in 2011, our Constitution required
law-enforcement officers to obtain either a warrant or court order for cell-phone location
information in accordance with the standards of N.J.S.A. 2A:156A-29 or to satisfy one of
the exceptions to the warrant requirement. It also follows that, under Article I, Paragraph
7, the exclusionary rule applies to unconstitutional searches and seizures of cell-phone
records. Here, the State did not obtain a warrant or court order and failed to satisfy its
burden of proving that exigent circumstances justified the warrantless search, requiring
suppression of defendant’s cell-phone records.

1. In 2013, in Earls, the Court held that Article I, Paragraph 7 of our State Constitution
afforded individuals a reasonable expectation of privacy in their cell-phone location
information. 214 N.J. at 588. In light of the constitutional right to privacy safeguarded
                                             2
by Article I, Paragraph 7, the Court declared that law enforcement “must obtain a warrant
based on a showing of probable cause, or qualify for an exception to the warrant
requirement,” to secure cell-phone location information. Ibid. The Court determined that
the Earls decision represented a new rule of law and therefore applied the warrant
requirement for cell-phone location information prospectively. Id. at 591. The Court
recognized, however, that since the 2010 amendment to the Wiretap Act, state law had
required law enforcement to secure a court order or a warrant to obtain cell-phone
location information from a service provider. Id. at 589 (citing N.J.S.A. 2A:156A-29).
(pp. 18-23)

2. The Court now holds that the constitutional warrant requirement applied to cell-phone
location information during the three-year interim period between passage of the
amendment to the Wiretap Act in 2010 and the effective date of the Court’s Earls
decision in 2013. However, in light of Earls and the legitimate expectations of law
enforcement under the Wiretap Act, the Court also determines that the standard for
securing a court order for those records during the three-year interim period was the one
set forth in the Act. That is, in the absence of an exception to the warrant requirement, to
secure cell-phone location information from a service provider, law enforcement was
required, at the very least, to obtain a court order based on “specific and articulable facts
showing that there [were] reasonable grounds to believe that the record or other
information . . . [was] relevant and material to an ongoing criminal investigation.” See
N.J.S.A. 2A:156A-29(e). The Court also expressly holds that following the 2010
amendment to the Wiretap Act, law-enforcement officers were justified in relying on
well-established exceptions to the State Constitution’s warrant requirement for securing
cell-phone records, including the exigent-circumstances exception. Cell-phone records
seized in violation of our State Constitution are subject to the exclusionary rule.
(pp. 24-25)

3. When the State invokes the exigent-circumstances exception to justify a warrantless
search it must prove that law-enforcement officers had an objectively reasonable basis to
believe that securing a warrant was not practicable because immediate action was
necessary to stop the flight of a suspect, to safeguard members of the public from a threat
of harm, or to prevent the destruction of evidence. The Court has never held that a
generalized concern about public or police safety or the preservation of evidence would
justify a warrantless search or seizure. (pp. 25-31)

4. Detective Frazer was unable to articulate anything more than a generalized concern
for public safety and the preservation of evidence as reasons for not complying with the
warrant requirement. He did not identify an objectively reasonable basis to believe that
there was a threat to the public or police, or that evidence might be destroyed, in the time
it would have taken to obtain a warrant. After reviewing defendant’s cell-phone records
and determining that defendant was clearly a suspect, the next day Detective Frazer
prepared three separate and detailed affidavits for search warrants. The Prosecutor’s
                                              3
Office did not make any concerted effort to immediately interrogate or detain defendant.
A review of the totality of the evidence reveals that the Prosecutor’s Office was able to
comply with the dictates of the warrant requirement of our State Constitution during the
murder investigation. The State failed to satisfy its burden of proving that the warrantless
search of defendant’s cell-phone records was objectively reasonable to meet the type of
exigency recognized in our jurisprudence. For the reasons expressed, the Court affirms
the judgment of the Appellate Division vacating defendant’s convictions and remands the
matter to the trial court. (pp. 31-36)

       AFFIRMED. The matter is REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.




                                             4
       SUPREME COURT OF NEW JERSEY
             A-10 September Term 2018
                       080834


                 State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                 Randy K. Manning,

               Defendant-Respondent.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                        Decided
 September 23, 2019             January 13, 2020


William P. Miller, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
appellant (Mark Musella, Bergen County Prosecutor,
attorney; William P. Miller, of counsel and on the briefs,
and Catherine A. Foddai, Legal Assistant, on the briefs).

Alison Perrone, First Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Alison Perrone, of counsel and
on the brief, and Michael Confusione, Designated
Counsel, on the letter brief).

Frank Muroski, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Sarah
Lichter, Deputy Attorney General, of counsel and on the
brief).

                          1
              Rubin M. Sinins argued the cause for amicus curiae
              American Civil Liberties Union of New Jersey
              (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins and
              American Civil Liberties Union of New Jersey
              Foundation, attorneys; Rubin M. Sinins, Herbert I.
              Waldman, Annabelle Steinhacker, Alexander Shalom,
              and Jeanne LoCicero, on the brief).


               JUSTICE ALBIN delivered the opinion of the Court.


        Cell-phone records can reveal intimate details about peoples’ lives and

relationships -- the persons and groups with whom they associate, the doctors

they choose, the religious services they attend, the stores they patronize, the

recreational places they visit, and much more.1 See State v. Earls, 214 N.J.



1
    The following is a glossary of terms used in this opinion and their meanings.

“Cell-phone records” refers to both “call-detail records” and “cell-phone
location information.”

“Call-detail records” refers to the phone numbers dialed from and received by
a phone as well as “the date, time, and duration of those calls.” State v.
Lunsford, 226 N.J. 129, 133 (2016).

“Cell-phone location information” refers to both “precision location
information” -- the precise Global Positioning System (GPS) location of a
phone -- and “cell-site records” -- records of when a cell phone connects to a
particular cell tower or antennae, typically the one closest to the phone. State
v. Earls, 214 N.J. 564, 576-77 (2013). Cell-site records provide a historic
record of the precise cell site with which a cell phone connects, and when.
The distance between cell sites can range from miles to a matter of yards,
depending on the number of towers or antennae. Id. at 577-78.
                                         2
564, 586 (2013); State v. Lunsford, 226 N.J. 129, 131 (2016); State v. Hunt, 91

N.J. 338, 345 (1982). In Earls, we recognized that individuals have an

expectation of privacy in cell-phone location information cognizable under the

New Jersey Constitution. 214 N.J. at 588. Accordingly, we held that law-

enforcement officers may secure such information from a cell-phone service

provider only when armed with a judicial warrant supported by probable cause

or when justified by an exception to the warrant requirement. Id. at 588-89.

We applied Earls, decided in 2013, prospectively. Id. at 591.

      We acknowledged, however, that since a January 12, 2010 amendment

to the New Jersey Wiretapping and Electronic Surveillance Control Act

(Wiretap Act), the securing of cell-phone location information required law-

enforcement officials to obtain a court order based on a reasonable-grounds

standard supported by specific and articulable facts, or a warrant. See id. at

591-92; N.J.S.A. 2A:156A-29(c) and (e). That statutory scheme does not

provide for an exigent-circumstances exception (other than in one limited

circumstance) or a suppression remedy for unlawfully acquired cell-phone

location information. See N.J.S.A. 2A:156A-27, -29(c) and (e), -32, and -34.

      In the case before us, in 2011, after the Wiretap Act amendment went

into effect but before our decision in Earls, law-enforcement officers

-- without a warrant or court order -- obtained defendant Randy K. Manning’s

                                        3
cell-phone records by submitting an exigent-circumstances request to a cell-

phone service provider. Defendant was convicted of murder, desecration of

human remains, and related crimes. The Appellate Division reversed, in part,

on the ground that the trial court erred in not suppressing defendant’s cell-

phone records.

      Defendant argues that no legitimate exigency justified the violation of

the Wiretap Act’s warrant/court-order requirement and therefore his cell-phone

records introduced at his murder trial should have been suppressed. The State

contends that the law-enforcement officers faced exigent circumstances that

justified securing the cell-phone records without a warrant or court order based

on the heinous nature of the crime under investigation, the murderer’s fugitive

status and effort to conceal his identity, and the fear that evidence might be

destroyed by the delay in seeking a judicial order.

      The 2010 amendment to the Wiretap Act provided individuals with an

expectation of privacy in their cell-phone location information. Earls, 214 N.J.

at 589. We now hold that the protection against unreasonable searches and

seizures in Article I, Paragraph 7 of our State Constitution also conferred an

expectation of privacy in that information since 2010. Therefore, in 2011, our

Constitution required law-enforcement officers to obtain either a warrant or

court order for cell-phone location information in accordance with the

                                        4
standards of N.J.S.A. 2A:156A-29 or to satisfy one of the exceptions to the

warrant requirement. Here, the constitutional propriety of the police conduct

depends on the application of the exigent-circumstances doctrine.

      In view of the totality of the evidence, we conclude that the State did not

establish that the exigent-circumstances exception justified securing

defendant’s cell-phone records without a warrant or court order. Indeed,

during the period the perpetrator remained at large and the nature of the threat

assessment remained unchanged, law-enforcement officers secured warrants

before and after they obtained defendant’s cell-phone records by an exigent-

circumstances request. The State failed to demonstrate that there was an

objectively reasonable basis to believe that lives might be endangered or

evidence destroyed in the time necessary to secure a warrant. See State v.

Johnson, 193 N.J. 528, 552-53 (2008); State v. DeLuca, 168 N.J. 626, 632-33

(2001).

      Accordingly, the improperly obtained cell-phone records should have

been suppressed. The wrongful admission of that information at defendant’s

trial requires the reversal of his convictions. We are therefore compelled to

remand for a new trial.

                                       I.

      We turn first to the procedural history and facts.

                                        5
      In December 2011, a Bergen County grand jury returned an indictment

charging defendant Manning with twelve offenses, including murder, N.J.S.A.

2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-

degree aggravated arson, N.J.S.A. 2C:l7-l(a); second-degree desecration of

human remains, N.J.S.A. 2C:22-l(a)(l); third-degree hindering apprehension,

N.J.S.A. 2C:29-3(b)(4); and second-degree burglary, N.J.S.A. 2C:18-2.

      Before trial, defendant moved to suppress the admission of his cell-

phone records that were secured, without a warrant or court order, based on an

exigent-circumstances request to his cell-phone provider. The trial court

conducted a suppression hearing at which one witness testified -- Detective

John Frazer of the Bergen County Prosecutor’s Office. The record is mostly

drawn from Detective Frazer’s testimony at the hearing and one of the

affidavits he prepared for warrant applications for phone records and wiretaps.

      Sometime between 4:00 and 4:30 a.m. on August 16, 2011, a resident of

Village Circle West in Paramus was awakened by the sounds of a barking dog

and a car alarm. Looking out his window, he saw a light-skinned man walk

away from a 2001 black Chevy Tahoe with New York license plates. Later

that morning, at approximately 7:56 a.m., the resident called 9-1-1 to report a

suspicious vehicle.

                                       6
      When Paramus Police officers arrived, they peered through the Chevy’s

rear windows and observed a sheet covering what appeared to be burnt human

remains. At least eleven detectives from the Bergen County Prosecutor’s

Office responded to the scene and began their investigation. Detective Frazer

joined his colleagues at approximately 8:30 a.m., remained at that location for

about two hours, and then went to his office. There, in accordance with his

assigned duties, he began to compile information and prepare affidavits for

warrant applications while detectives investigated in the field.

      The Chevy’s license plate number matched a vehicle registered to Rhian

Stoute of Brooklyn, New York. A copy of Stoute’s fingerprints matched the

body in the vehicle. 2 By 10:10 a.m., an autopsy indicated that Stoute had died

from multiple gunshot wounds to the head and torso and that his body had

been set on fire after his death.

      Bergen County detectives spoke with Stoute’s mother, who provided

them with her son’s cell-phone number. At approximately 3:11 p.m.,

Detective Frazer submitted to Sprint Nextel an exigent-circumstances request




2
  Stoute’s prints and booking photo were in the Automated Fingerprint
Identification System because of a prior arrest for weapons possession.

                                        7
for Stoute’s cell-phone records.3 Approximately twenty minutes later, Sprint

Nextel produced Stoute’s cell-phone records. Although the records could not

identify the present location of Stoute’s phone, which was either turned off or

not functioning, they did pinpoint the various cell-site locations with which

Stoute’s cell phone connected the previous day. Assuming that Stoute was in

possession of his cell phone, he traveled in the afternoon from New York City

to various points in Bergen County, visiting in the early evening the vicinity of

Englewood Hospital, where he made his last outgoing call around 7:15 p.m.

That cell phone, however, was in Brooklyn when it received an incoming call

that went unanswered at around 8:20 p.m.

      At approximately 4:30 p.m. on August 16, detectives interviewed

Stoute’s friend Brendan Dunbar, who provided the following information.

Earlier that day, he became concerned about Stoute’s failure to show up for a

meeting and called one of Stoute’s friends -- defendant. Defendant told

Dunbar that he “had been with [Stoute] on August 15, 2011, sometime

between 7:00-8:00 p.m. in Brooklyn,” when Stoute dropped him off at a train

station. Detective Frazer believed that defendant’s purported account to

Dunbar conflicted with Stoute’s cell-site records.


3
  Detective Frazer specifically requested “incoming and outgoing call
data . . . , which included cell sites, subscriber information[,] and precision
location of the mobile device through GPS, for the previous seven days.”
                                           8
      During this period, detectives obtained a judicial warrant to search the

Chevy and discovered a fraudulent California driver’s license between the seat

and center console. Detective Frazer matched the photograph on the license

with a photograph of defendant.

      At approximately 7:39 p.m. on August 16, Detective Frazer submitted an

exigent-circumstances request form to AT&T, seeking information related to

defendant’s cell phone, such as incoming and outgoing calls and cell-phone

location information for August 15 and 16. The exigent-circumstances form

submitted to AT&T stated: “Suspect is armed and considered extremely

dangerous. Poses a threat to law enforcement.”

      Detective Frazer did not claim that defendant was a suspect at that time.

In Frazer’s mind, defendant was only “a person of interest” who might have

critical information about who committed the murder. At that point, no

witness interviewed had indicated that defendant possessed a weapon or had

harmed Stoute. Detective Frazer stated that he submitted the exigent-

circumstances request form as “an investigatory tool,” allowing for the

possibility that the cell-phone records might exculpate defendant.

      Detective Frazer acknowledged that he could have sought a telephonic

warrant from a judge but decided that “[i]t was not practical at that time” and

therefore opted to secure the records “as fast as possible” by means of the

                                       9
exigent-circumstances request. He gave as reasons for the exigency, the need

“to find out in a timely fashion” who killed Stoute and to identify any

witnesses or conspirators. He also explained that the killer had taken steps to

conceal his identity and obstruct the investigation: the “body was badly

burned to deter us from identifying [the victim],” and Stoute’s cell phone was

not found in the car.

      At approximately 8:00 p.m. on August 16, AT&T produced defendant’s

cell-phone records. The cell-site records revealed that defendant’s and

Stoute’s cell phones traveled the same general path on August 15 and were in

the same general location at the time Stoute made his last outgoing call. Those

records also indicated that defendant’s cell phone was pinging off a cell site

about six-tenths of a mile from the location of Stoute’s Chevy at

approximately the same time that the Paramus resident observed a light-

skinned male walk away from the vehicle containing Stoute’s body.4 Based on

the cell-phone records, defendant became the target of the investigation.

      The next day, Detective Frazer submitted three separate and detailed

affidavits in support of three warrants: one for wiretapping calls between

defendant’s phone and another person’s phone, one for receiving


4
  The carrier could not determine the location of defendant’s cell phone at the
time of the exigent-circumstances request because evidently his cell phone was
off.
                                       10
communications data for defendant’s phone and three other persons’ phones,

and another for securing records related to a second phone belonging to Stoute.

At approximately 9:15 p.m. on August 17, a Superior Court judge signed the

requested warrants.

       Despite defendant’s status as a suspect, the Bergen County Prosecutor’s

Office did not act with any sense of urgency to interview or detain him. That

is clear from the testimony of Bergen County Prosecutor’s Detective Gary

Boesch at a Miranda5 hearing conducted before the same judge who later

presided over the suppression hearing. According to Detective Boesch, on

August 17, defendant -- having learned of the ongoing investigation -- called

the Bergen County Police Department and inquired whether the police wanted

to speak with him. Defendant received no response that day. The next day at

approximately 2:30 p.m., Detective Boesch returned defendant’s call, and, at

the detective’s request, defendant agreed to come in for an interview the

following day. On August 19, defendant took public transportation to the

Hackensack bus terminal, where, at approximately 11:00 a.m., Detective

Boesch picked him up and transported him to the Prosecutor’s office for

questioning. During the interrogation, defendant confessed to shooting and




5
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                       11
killing Stoute but maintained that he did so by accident. He also admitted to

setting Stoute’s body on fire. 6

                                      II.

                                      A.

      The trial court denied defendant’s motion to suppress the warrantless

search of his cell-phone records based on the exigent-circumstances exception.

The court concluded that, under the totality of the circumstances, Detective

Frazer acted in an objectively reasonable manner in not securing a warrant or

court order given “the urgency of the situation.” The court catalogued the

exigent circumstances that justified not obtaining a court order: the police

were investigating a murder; the murder weapon had not been recovered; the

perpetrator was potentially armed and dangerous and a threat to the public; the

perpetrator attempted to conceal the crime by burning the body beyond

recognition; and evidence might be lost or destroyed unless the police acted

quickly.

      Significantly, the exigent circumstances enumerated by the trial court

remained unchanged during the period between August 16 and 19, when the

Prosecutor’s Office prepared detailed affidavits in support of search and



6
  At trial, defendant recanted this account and claimed that he observed a
group of men kill Stoute.
                                        12
wiretap warrants -- a point not addressed by the trial court.

                                       B.

       At the conclusion of a jury trial, defendant was convicted of a string of

crimes, including murder, second-degree possession of a weapon for an

unlawful purpose, third-degree arson, second-degree desecration of human

remains, and third-degree hindering apprehension.7 The trial court sentenced

defendant to an aggregate sentence of life imprisonment, subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2. Under the Act, defendant must serve

63.75 years before he is eligible for parole. Ibid.

                                       C.

       In an unpublished opinion, the Appellate Division reversed defendant’s

conviction on two grounds and remanded for a new trial. First, the Appellate

Division held that the trial court erred in not granting defendant’s request for

jury instructions on aggravated manslaughter and reckless manslaughter

-- lesser-included offenses to the charge of murder. It concluded that, in light

of the disputed forensic evidence, defendant’s statement to the police that he

accidentally shot Stoute “was sufficient to compel lesser included jury

instructions.”

       Second, the Appellate Division held that the failure of the police to


7
    The jury acquitted defendant of felony murder and burglary.
                                        13
secure a warrant or court order for defendant’s cell-phone records should have

resulted in the suppression of those records. It acknowledged that our 2013

Earls decision extended our State Constitution’s warrant requirement to cell -

phone location information and permitted exigent applications for that

“information, recognizing the urgent need for such information when a

person’s life is endangered,” citing Earls, 214 N.J. at 589. It pointedly noted

that Earls applied prospectively -- and not to the events that occurred in 2011

in this case.

      The governing law, the Appellate Division reasoned, was the 2010

amendment to the Wiretap Act, which required a warrant, court order, or

consent for cell-phone records and which carved out only one statutory

exigent-circumstances exception -- for cell-phone location information “when

the law enforcement agency believes in good faith that an emergency

involving danger of death or serious bodily injury to the subscriber or

customer requires [immediate disclosure],” citing N.J.S.A. 2A:156A-29(c)(4)

(emphasis added). Defendant’s cell-phone records did not fall within that

statutory exception. Accordingly, in the absence of an applicable statutory

exigent-circumstances exception, the Appellate Division concluded that the

detective’s failure “to apply for a warrant or court order requires suppression

of the cell-phone records.”

                                       14
      Notably, the Wiretap Act does not provide a suppression remedy for a

violation of N.J.S.A. 2A:156A-29 -- a point not addressed by the Appellate

Division.

      We granted the State’s petition for certification “limited to the issue of

the admissibility of the defendant’s cell phone records.” 235 N.J. 311 (2018).

We also granted leave for the American Civil Liberties Union of New

Jersey (ACLU) and the New Jersey Attorney General to participate as

amici curiae.

                                      III.

                                       A.

      The State argues that the Appellate Division erred in suppressing

defendant’s cell-phone records secured through an exigent-circumstances

request. The State concedes that, in 2011, call-detail records “most likely”

were protected by our State Constitution’s warrant requirement, see Hunt, 91

N.J. 338, but submits that cell-phone location information was governed by the

Wiretap Act, which does not provide a suppression remedy for a violation of

N.J.S.A. 2A:156A-29. The State reasons that even if the Bergen County

Prosecutor’s Office lacked exigent circumstances to request defendant’s cell-

phone location information from the service provider, defendant would be

without a suppression remedy under the Act. The State argues that the

                                       15
exigent-circumstances exception applied because of the gruesome nature of the

crime, which included the burning of the victim’s body, and because of the

objectively reasonable belief that defendant was a suspect at large, armed and

dangerous; a threat to the safety of others; and capable of concealing or

destroying evidence relevant to the investigation.

      Amicus Attorney General essentially echoes the arguments advanced by

the State.

                                       B.

      Defendant presents two arguments in support of affirming the Appellate

Division’s suppression of his cell-phone records. First, defendant asserts that

the Wiretap Act was the law governing the acquisition of cell-phone location

information by law enforcement in 2011. He submits that N.J.S.A. 2A:156A-

29(c) of the Wiretap Act required law-enforcement officers to secure a warrant

or court order for such information and provided for an exigent-circumstances

exception in only one circumstance, not relevant here -- in the case of a

subscriber who was in imminent danger. 8 Although defendant stresses the lack

of a general exigent-circumstances exception in N.J.S.A. 2A:156A-29(c), there

is no suppression remedy for a violation of that provision. See N.J.S.A.


8
   Defendant also implausibly argues that Hunt, which required law
enforcement to secure judicial authorization for call-detail records, by its
silence, did not recognize an exigent-circumstances exception.
                                       16
2A:156A-27, -32, and -34.

      Defendant urges the Court to adopt a suppression remedy by reasoning,

from Earls, that the warrant/court-order requirement of N.J.S.A. 2A:156A-

29(c) and (e), protecting cell-phone location information, gave rise to a

reasonable expectation of privacy protected by our State Constitution. On that

basis, defendant contends that the Bergen County Prosecutor’s Office was

constitutionally mandated to secure a warrant or court order and that the

exigent-circumstances exception could not be invoked to obtain cell-phone

location information.

      Defendant nevertheless claims that the State failed to establish exigent

circumstances justifying the acquisition of his cell-phone records, emphasizing

that there was no showing that “the delay necessary to obtain a warrant posed a

threat to law enforcement or the public” and that the investigating detectives

exhibited a lack of urgency in contacting or detaining defendant -- the

supposed prime suspect.

      Amicus ACLU asks this Court to give guidance in analyzing the exigent-

circumstances exception while noting that “[t]he factors which led the trial

court to find such circumstances in this case are hardly extraordinary.” It

posits that bypassing the warrant requirement should occur “only in narrow

circumstances, and not in circumstances that regularly arise in countless

                                       17
criminal investigations.”

                                      IV.

                                       A.

      Article I, Paragraph 7 of the New Jersey Constitution guarantees that

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated; and

no warrant shall issue except upon probable cause.” 9 N.J. Const. art. I, ¶ 7.

Article I, Paragraph 7 generally protects a person’s reasonable expectation of

privacy from untoward government intrusion. State v. Evers, 175 N.J. 355,

368-69 (2003) (“To invoke the protections of . . . Article I, Paragraph 7,

defendant must show that a reasonable or legitimate expectation of privacy

was trammeled by government authorities.” (footnotes omitted)). That

reasonable expectation of privacy extends to an individual’s phone records,

even when in the hands of third-party service providers. Earls, 214 N.J. at 568

(“[I]ndividuals do not lose their right to privacy simply because they have to




9
  The Fourth Amendment of the United States Constitution provides the same
guarantees in nearly identical language. U.S. Const. amend. IV. Because,
historically, this Court’s jurisprudence in construing Article I, Paragraph 7 has
conferred greater privacy rights to a person’s call-detail records and cell-phone
location information than federal law, our focus is primarily on New Jersey
law. See Earls, 214 N.J. at 584; Hunt, 91 N.J. at 345.
                                       18
give information to a third-party provider, like a phone company or bank, to

get service.”).

      Because phone records are protected by Article I, Paragraph 7, law-

enforcement officers must secure a warrant or court order from a judicial

officer authorizing the search of such records or justify the search based on

one of the “specifically established and well-delineated exceptions to the

warrant requirement.” See State v. Hemenway, 239 N.J. 111, 126 (2019)

(internal quotation marks omitted); see also Earls, 214 N.J. at 569.

Compliance with the warrant requirement is not a mere formality but -- as

intended by the nation’s founders -- an essential check on arbitrary

government intrusions into the most private sanctums of people’s lives. See

Katz v. United States, 389 U.S. 347, 356-57 (1967); Johnson v. United States,

333 U.S. 10, 13-14 (1948). The constitutional preference for judicially issued

warrants authorizing searches and seizures is long ingrained in our

constitutional jurisprudence. See State v. Frankel, 179 N.J. 586, 597-98

(2004). Because, under our jurisprudence, searches and seizures without

warrants are presumptively unreasonable, the State bears the burden of

demonstrating by a preponderance of the evidence that an exception to the

warrant requirement applies. Johnson, 193 N.J. at 552. Here, our focus is on

the exigent-circumstances exception.

                                       19
                                       B.

      We begin with a brief review of the constitutional protections addressing

phone records.

      In Hunt, we concluded that the New Jersey Constitution provides greater

protection to telephone communications than the Fourth Amendment as

construed by the United States Supreme Court. 91 N.J. at 345. (“New Jersey

has had an established policy of providing the utmost protection for telephonic

communications.”). We indicated that our citizens have a reasonable

expectation of privacy in call-detail records, 10 in part, because “[t]he telephone

has become an essential instrument in carrying on our personal affairs.” Id. at

346. We determined that Article I, Paragraph 7 of our State Constitution,

unlike federal law, mandates that law enforcement secure judicial

authorization for call-detail records. Id. at 348; see also State v. Mollica, 114

N.J. 329, 344 (1989) (providing that Article I, Paragraph 7 protection of a

guest’s hotel telephone billing records “is the sound and logical continuance of

our broader view of the privacy that surrounds the use of a telephone and the

extended protection that it deserves”).

      The combination of Hunt and Mollica established that the warrant


10
   Hunt used the term “toll billing records” in referring to completed long-
distance telephone calls. For the sake of consistency, we use the current
terminology -- call-detail records.
                                        20
requirement applied to securing call-detail records. We never suggested in

those cases that exceptions to the warrant requirement -- such as consent or

exigent circumstances -- were inapplicable. We now make clear that, as in

other contexts, exceptions to the constitutional warrant requirement apply to

securing cell-phone records, including call-detail records.

      In 2013, in Earls, we held that Article I, Paragraph 7 of our State

Constitution afforded individuals a reasonable expectation of privacy in their

cell-phone location information, at least equal to their privacy interest in call-

detail records. 214 N.J. at 588.11 We noted that cell phones are “an

indispensable part of modern life” and that “details about the location of a cell

phone can provide an intimate picture of one’s daily life.” Id. at 586. Phone

records can reveal highly personal information about individuals’ associations

with people and organizations and trace their whereabouts both day and ni ght.



11
   In Lunsford, we determined that the level of suspicion necessary to obtain
call-detail records is “‘specific and articulable facts showing that there are
reasonable grounds to believe that’ the records sought are ‘relevant and
material to an ongoing criminal investigation.’” 226 N.J. at 155 (quoting
N.J.S.A. 2A:156A-29(e)). We maintained, however, that the greater privacy
interest in cell-phone location information mandated that the State hew to the
probable-cause standard. Id. at 132. Today, therefore, two different standards
apply for obtaining a warrant or court order for call-detail records (specific and
articulable facts showing that the records sought are relevant to an ongoing
criminal investigation) and cell-phone location information (probable cause).
Those same standards apply to the first prong of the exigent-circumstances
exception for call-detail records and cell-phone location information.
                                         21
See ibid. Phone records can track where and when individuals worship, attend

political meetings, seek medical care, shop, spend their recreational time, and

with whom. See ibid. We stated that people “are reasonably entitled to expect

confidentiality” in the highly personal information that can be revealed by

their cell phones and “do not expect law enforcement to convert their phones

into precise, possibly continuous tracking tools.” Id. at 587-88. In light of the

constitutional right to privacy safeguarded by Article I, Paragraph 7, we

declared that law enforcement “must obtain a warrant based on a showing of

probable cause, or qualify for an exception to the warrant requirement,” to

secure cell-phone location information. Id. at 588.12

         We determined that the Earls decision represented a new rule of law and

therefore applied the warrant requirement for cell-phone location information

prospectively. Id. at 591. We recognized, however, that since the 2010

amendment to the Wiretap Act, state law had required law enforcement to

secure a court order or a warrant to obtain cell-phone location information

from a service provider. Id. at 589 (citing N.J.S.A. 2A:156A-29). We noted in

Earls:



12
   Five years after Earls, the United States Supreme Court in Carpenter v.
United States, 585 U.S. ___, 138 S. Ct. 2206, 2217 (2018), recognized that the
Fourth Amendment confers an expectation of privacy on cell-phone location
information.
                                        22
            Since 2010, the [Wiretap Act] has required that police
            get a court order for cell-site information based on less
            than probable cause. See N.J.S.A. 2A:156A-29e. Thus,
            even before today, there was some expectation of
            privacy as to cell-phone location information, and the
            police needed a form of judicial authorization to obtain
            that data.

            [Ibid.]

      The amendment authorized a court to issue an order for cell-phone

location information on a showing of “specific and articulable facts . . . that

there are reasonable grounds to believe that the record or other information . . .

is relevant and material to an ongoing criminal investigation.” N.J.S.A.

2A:156A-29(c)(3) and (e). Law enforcement also can secure a warrant for

such information. N.J.S.A. 2A:156A-29(c)(1). The Wiretap Act does not

afford a suppression remedy when cell-phone records are acquired in violation

of the Act’s warrant/court-order requirement. N.J.S.A. 2A:156A-34 provides

that the only remedies for “nonconstitutional” violations are those found in

N.J.S.A. 2A:156A-27 and -32 (the filing of criminal charges and imposition of

civil penalties). With the word “nonconstitutional,” the Legislature evidently

left open the possibility of a suppression remedy under the constitution, and

therefore presaged our decision in Earls. See N.J.S.A. 2A:156A-27, -29, -32,

and -34.



                                        23
                                       C.

      The issue in this case is whether, in 2011, those statutory safeguards,

along with this State’s avowed “policy of providing the utmost protection for

telephonic communications,” Hunt, 91 N.J. at 345, gave rise to a reasonable

expectation of privacy in an individual’s cell-phone location information

cognizable under Article I, Paragraph 7. We conclude that, during the interim

period between passage of the amendment to the Wiretap Act in 2010 and the

effective date of our Earls decision in 2013, individuals possessed a reasonable

expectation of privacy in cell-phone location information cognizable under our

State Constitution. We now hold that the constitutional warrant requirement

applied to cell-phone location information during the three-year interim period.

However, in light of Earls and the legitimate expectations of law enforcement

under the Wiretap Act, we also determine that the standard for securing a court

order for those records was the one set forth in the Act.

      That is, in the absence of an exception to the warrant requirement, to

secure cell-phone location information from a service provider, law

enforcement was required, at the very least, to obtain a court order based on

“specific and articulable facts showing that there [were] reasonable grounds to

believe that the record or other information . . . [was] relevant and material to

an ongoing criminal investigation.” See N.J.S.A. 2A:156A-29(e).

                                        24
      We expressly hold that following the 2010 amendment to the Wiretap

Act, law-enforcement officers were justified in relying on well-established

exceptions to the State Constitution’s warrant requirement for securing cell-

phone records, including the exigent-circumstances exception. It also follows

that, under Article I, Paragraph 7, the exclusionary rule applies to

unconstitutional searches and seizures of cell-phone records. See Evers, 175

N.J. at 376 (noting that the primary purpose of the exclusionary rule is to deter

unlawful police conduct and compel compliance with commands of the

Constitution). Accordingly, cell-phone records seized in violation of Article I,

Paragraph 7 of our State Constitution are subject to the exclusionary rule.

      We next turn to a discussion of the exigent-circumstances exception.

                                       V.

      Generally, when the State invokes the exigent-circumstances exception

to justify a warrantless search, it must prove by a preponderance of the

evidence that (1) the search was premised on probable cause and (2) law

enforcement acted in an objectively reasonable manner to meet an exigency

that did not permit time to secure a warrant. See In re J.A., 233 N.J. 432, 448

(2018); Johnson, 193 N.J. at 552. For the reasons earlier expressed, because

the events in this case occurred in 2011, during the interim period before Earls,

the first prong is not governed by the probable-cause standard. Rather, the

                                       25
standard is whether law-enforcement authorities possessed “‘specific and

articulable facts showing that there [were] reasonable grounds to believe that’

the [phone] records sought [were] ‘relevant and material to an ongoing

criminal investigation.’” Lunsford, 226 N.J. at 155 (quoting N.J.S.A.

2A:156A-29(e)).

      Turning next to what constitutes an objectively reasonable response to

an exigency, we first acknowledge that the exigent-circumstances exception is

not susceptible to a precise definition because the unique facts of each case

determines whether the need to act without delay is imperative. See Riley v.

California, 573 U.S. 373, 402 (2014) (“[T]he exigent circumstances exception

requires a court to examine whether an emergency justified a warrantless

search in each particular case.”); DeLuca, 168 N.J. at 632 (“[T]he application

of the doctrine of exigent circumstances demands a fact-sensitive, objective

analysis.”). In determining whether exigent circumstances excused law-

enforcement officers from obtaining a warrant, courts may consider such

factors as (1) the seriousness of the crime under investigation, (2) the urgency

of the situation faced by the officers, (3) the time it would have taken to secure

a warrant, (4) the threat that evidence would be destroyed or lost or people

would be endangered unless immediate action was taken, (5) information that

the suspect was armed and posed an imminent danger, and (6) the strength or

                                       26
weakness of the probable cause relating to the item to be searched or seized.

Johnson, 193 N.J. at 552-53; DeLuca, 168 N.J. at 632-33.

      In a case involving the search of the contents of a cell phone, the United

States Supreme Court stated that, for Fourth Amendment purposes, the

exigent-circumstances exception “applies when the exigencies of the situation

make the needs of law enforcement so compelling that [a] warrantless search is

objectively reasonable.” Riley, 573 U.S. at 402 (alteration in original)

(internal quotation omitted) (“Such exigencies could include the need to

prevent the imminent destruction of evidence in individual cases, to pursue a

fleeing suspect, and to assist persons who are seriously injured or are

threatened with imminent injury.”).

      Two recent United States Supreme Court cases illustrate the kind of

exigent circumstances that would justify dispensing with the warrant

requirement for securing cell-phone data from a cell phone seized by the police

(“a suspect texting an accomplice who, it is feared, is preparing to detonate a

bomb, or a child abductor who may have information about the child’s location

on his cell phone”) and for securing cell-phone location information from a

service provider (“searches related to bomb threats, active shootings, and child

abductions”). Id. at 402; Carpenter v. United States, 585 U.S. ___, 138 S. Ct.

2206, 2213 (2018). To be sure, those are extreme examples, and exigency can

                                       27
be premised on less dramatic circumstances. The point generally, however, is

that law-enforcement officers must have “an objectively reasonable basis to

believe that” securing a warrant is not practicable because immediate action is

necessary to stop the flight of a suspect, to safeguard members of the public

from a threat of harm, or to prevent the destruction of evidence. See State v.

Vargas, 213 N.J. 301, 323, 325 (2013).

      Under our jurisprudence, there must be an objectively reasonable basis

for the need for immediate action to justify foregoing the warrant requirement.

See Johnson, 193 N.J. at 553; DeLuca 168 N.J. at 632. We have never held

that a generalized concern about public or police safety or the preservation of

evidence would justify a warrantless search or seizure. Certainly, permitting

warrantless searches and seizures in the absence of an objectively reasonable

necessity would severely undermine the warrant requirement. As the United

States Supreme Court explained, in the case of a murder investigation, “the

mere fact that law enforcement may be made more efficient can never by itself

justify disregard of the Fourth Amendment. The investigation of crime would

always be simplified if warrants were unnecessary.” Mincey v. Arizona, 437

U.S. 385, 393 (1978) (citation omitted).

      We have affirmed, under the rubric of exigent circumstances, the

warrantless entry into a home after police headquarters received a suspicious

                                       28
and unexplained 9-1-1 call from that residence and an officer had an

objectively reasonable basis to believe that a person might be endangered or

incapacitated inside, Frankel, 179 N.J. at 609-10; the warrantless entry into a

home after an anonymous 9-1-1 report of a domestic violence incident by a

man with a gun to ensure the safety of a young boy, State v. Edmonds, 211

N.J. 117, 137-38, 140 (2012);13 and the entry into a hotel room shortly after a

report of an armed robbery inside the room to ensure that no other victims

might be endangered, State v. Hathaway, 222 N.J. 453, 461-63, 478 (2015).14

      In State v. DeLuca, under the exigent-circumstances exception, we

upheld the warrantless search of a pager because the police had a reasonable

belief that delaying the search would result in the destruction of evidence and

allow an armed and dangerous robber to elude capture. 168 N.J. at 633. In

that case, the police arrested the defendant immediately after the armed

robbery of a convenience store, but his accomplice, who the police reasonably

believed was armed, remained at large. Id. at 629-30. The police seized a

pager from the defendant. Id. at 629. The pager received an incoming page

that the police reasonably feared would erase an older one because of the


13
   In Edmonds, we also found that a search of the home that exceeded the
scope of the reported exigency was unreasonable. 211 N.J. at 140.
14
   We analyzed those cases under the public-safety exception, a subset of the
exigent-circumstances doctrine.
                                     29
pager’s limited storage capacity. Id. at 630. An officer scrolled through the

telephone numbers on the pager both to preserve evidence before its

destruction and to secure information while the police were on the heels of an

armed and dangerous accomplice. Ibid. Under the totality of the

circumstances, exigent circumstances justified the warrantless search. Id. at

633.

       Similarly, in State v. Minitee, exigent circumstances justified the

warrantless search of a vehicle abandoned by armed robbers who had fled the

scene. 210 N.J. 307, 321-24 (2012).15 In that case, the vehicle, which could

have been searched at the scene in the immediate aftermath of the robbery

based on exigent circumstances, was towed to police headquarters. See id. at

313, 323. In the meantime, after apprehending one of the perpetrators, the

police remained in active pursuit of another armed robber, investigated

multiple sites, and searched for a missing gun. Id. at 312-14. Under those

fraught circumstances, the vehicle was searched at headquarters for the

missing gun and evidence of the identity of the perpetrator, who was being

pursued. Id. at 322-23.


15
   Minitee was decided under the automobile exception to the warrant
requirement, when that exception had an exigent-circumstances component.
210 N.J. at 319-20; see State v. Witt, 223 N.J. 409, 447 (2015) (holding that
the exigent-circumstances component is no longer necessary for a probable-
cause search of a vehicle when the automobile exception applies).
                                        30
      In all of those cases, there was an objectively reasonable basis to believe

that lives might be endangered or evidence destroyed by the delay necessary to

secure a warrant. 16 In each instance, time was of the essence, and delay was

not a reasonable option.

                                      VI.

                                       A.

      Before reviewing the constitutionality of the warrantless seizure of

defendant’s cell-phone records, we begin with our standard of review. We

defer to the trial court’s factfindings, provided they are “supported by

sufficient credible evidence in the record.” State v. Elders, 192 N.J. 224, 243

(2007) (quotation omitted). In contrast, clearly mistaken factfindings are not

entitled to deference. Id. at 244. We review issues of law de novo and are not

bound to follow the trial court’s or Appellate Division’s interpretive legal

conclusions, unless persuaded that those conclusions are correct. Vargas, 213

N.J. at 327.

                                       B.

      On August 16, 2011, shortly after 8:00 a.m., the Bergen County



16
   The time necessary to secure a warrant includes the time required to prepare
and allow for review of the affidavit in support of the warrant, to contact a
judge, and for the judge to review the papers and issue the warrant. A
telephonic warrant, in most cases, will take less time to secure.
                                        31
Prosecutor’s Office investigated a grisly murder of a victim who had died from

multiple gunshot wounds and whose charred body was found in the rear of his

Chevy. Without a suspect, knowledge of the circumstances surrounding the

crime, or a motive, the detectives evidently had no difficulty securing a

judicially authorized warrant to search the vehicle.

      Stationed in his office, Detective Frazer was tasked with compiling

information gathered in the field and preparing affidavits for warrant

applications. By the late afternoon or early evening of August 16, Detective

Frazer had two pieces of information that made defendant “a person of

interest”: defendant’s fake California license was found in the Chevy owned

by his friend, the victim, and defendant’s timeline of his claimed whereabouts

seemingly conflicted with the victim’s cell-phone records.

      With the limited information at hand, we accept that Detective Frazer

had “specific and articulable facts” to establish that securing defendant’s cell-

phone records was “relevant and material to an ongoing criminal

investigation.” See Lunsford, 226 N.J. at 155 (quoting N.J.S.A. 2A:156A-

29(e)). On that basis, the detective could have sought a court order for the

records.

      Nevertheless, despite the securing of a search warrant earlier for the

Chevy, Detective Frazer bypassed the warrant/court-order process and, that

                                       32
evening, submitted an exigent-circumstances request form to AT&T for

defendant’s cell-phone records. Detective Frazer admittedly used the exigent-

circumstances request “as an investigatory tool.” Although the detective stated

that applying for a search warrant “was not practical at that time,” he conceded

that he could have applied for a telephonic warrant. He gave no estimate of

the time that it would have taken to apply for a telephonic warrant or to

prepare an affidavit for a search warrant, or the difficulty in doing so, given

the limited information he had concerning defendant. Nor did he estimate the

time it would have taken to secure a warrant, given that a Superior Court judge

was on call.

      Detective Frazer and his law enforcement colleagues were, of course,

attempting to apprehend as quickly as possible a killer who was armed and had

tried to conceal his crime. But Detective Frazer was unable to articulate

anything more than a generalized concern for public safety and the

preservation of evidence as reasons for not complying with the warrant

requirement. He did not identify an objectively reasonable basis to believe

that there was a threat to the public or police, or that evidence might be

destroyed, in the time it would have taken to obtain a warrant.

      Presumably, the potential threat posed by the fugitive killer remained a

constant during the three days he was on the lam. Nevertheless, after

                                        33
reviewing defendant’s cell-phone records and determining that defendant was

clearly a suspect, the next day Detective Frazer prepared three separate and

detailed affidavits for search warrants, including one for a wiretap of, and

another for further communications data from, defendant’s cell phone. The

warrants were issued at approximately 9:15 p.m. by a Superior Court judge.

Even after the spotlight was shining on defendant, the Prosecutor’s Office did

not make any concerted effort to immediately interrogate or detain him. After

speaking with the Prosecutor’s Office, defendant took public transportation to

Hackensack to be interviewed the next day.

      We do not defer to the trial court findings because the court failed to

consider critical facts and the applicable law.

      In determining whether Detective Frazer’s warrantless search of

defendant’s cell-phone records on the evening of August 16 was an objectively

reasonable response to an exigency that did not permit time to secure a court

order, we do not view the events through the “distorted prism of hindsight,”

Frankel, 179 N.J. at 599, but we also do not put on blinders. Any

consideration of objective reasonableness must take into account the totality of

the circumstances. Id. at 605. The Prosecutor’s Office obtained a search

warrant earlier in the day on August 16 and three search warrants the next day

when a clear suspect was in sight. The State bore the burden of establishing

                                        34
the existence of an objectively reasonable basis to believe that there was a

threat to members of the public or of destruction of evidence that made the

securing of a court order impracticable. See Johnson, 193 N.J. at 553;

DeLuca, 168 N.J. at 632. Generalized fears do not meet that standard. A

review of the totality of the evidence reveals that the Prosecutor’s Office was

able to comply with the dictates of the warrant requirement of our State

Constitution during the murder investigation. The State failed to satisfy its

burden of proving that the warrantless search of defendant’s cell-phone records

was objectively reasonable to meet the type of exigency recognized in our

jurisprudence.

      No one can doubt the urgency of finding a killer and solving a crime, nor

the demands on law enforcement to do so. Murders and other serious crimes,

including acts of terrorism, occur all too often. The challenges facing law

enforcement in the course of a criminal investigation are many and should not

be minimized. But criminal investigations, even of unsolved murders, must

proceed in accord with the mandates of our Constitution. The warrant

requirement places an independent judiciary as the ultimate arbiter of whether

law enforcement can search a home or seize highly personal records -- unless a

specifically delineated exception permits otherwise. Compliance with the

warrant requirement cannot proceed on a selective basis, as happened here.

                                       35
      On many occasions, we have upheld searches based on exigent

circumstances in situations that demanded an immediate police response to an

objectively reasonable basis to believe that there was a threat to life or the

preservation of evidence. Exceptions to the warrant requirement do not have

endless elasticity. Those exceptions must be constrained within reason,

otherwise they will swallow the rule.

                                      VII.

      For the reasons expressed, we affirm the judgment of the Appellate

Division, suppressing defendant’s cell-phone records, which were secured

without the requisite warrant or court order, and vacating his convictions. 17

We remand to the trial court for proceedings consistent with this opinion.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.




17
  As noted earlier, we did not disturb the Appellate Division’s decision to
vacate defendant’s murder conviction and order a new trial based on the trial
court’s failure to give lesser-included charges to murder.
                                        36
