On its own initiative, the appeals court invited the ACLU-NJ to weigh in as a friend-of-the-court in this case. This case involves the scope of consent in a cell phone search. Although the defendant had signed a generic, legalistic form giving police permission to search his phone, his verbal statements to the detective made clear he only consented to a search of his phone records. In addition, the detective repeatedly clarified that he only wanted phone records. The ACLU-NJ argued that consent to search, as a waiver of a constitutional right, must be interpreted restrictively. The ACLU-NJ cited New Jersey’s heightened protections in the search and seizure context and substantial social science and psychology research that shows how people feel they must obey officers – especially in the context of racial profiling and over-policing of communities of color. In light of this, and to protect against abusive police actions, the ACLU-NJ argued that where there are two different types of consent to search given at the same time, the more limited one must always apply.
The case was argued on December 4, 2017, and a decision is pending.