COUNSEL'S COLUMN

By Frank Gennaro
Deputy Attorney General
New Jersey Division of Criminal Justice

COURT RULES OUT WARRANTLESS SEARCHES
OF ELECTRIC USAGE RECORDS

In a case decided in May 2005, the New Jersey Superior Court, Appellate Division ruled that warrantless searches of an individual’s electric usage are violative of the New Jersey Constitution. In State v. Domicz, the Court was confronted with a State Police investigation of a suspected indoor marijuana grow.

The State Police detective had information that the defendant was receiving a large quantity of plant growth equipment. This information was corroborated by a subpoena sent to the equipment company. Armed with this information, the detective, In May 2000, conducted a warrantless thermal scan of the defendant’s home. This scan did not reveal an unusual amount of heat escaping from the home. The detective then subpoenaed electric usage records for defendant’s home, as well as for two comparable homes in the area.

Conceding that they did not have probable cause for a warrant to search defendant’s home, detectives conducted a “knock and talk” with defendant in his home. According to the detective, the defendant consented to a search of his home and admitted to having 40 marijuana plants growing therein. The defendant, at the motion to suppress evidence, contended that his consent was not voluntary, and, in fact, that it was not sought until after the police had searched his home.

The defendant was charged with maintaining a controlled dangerous substance production facility. The Trial Court denied the motion to suppress evidence, and the defendant appealed.

The Appellate Division ruled that both the thermal scan and the search of electric usage records were unlawful searches, as they were done without search warrants. With regard to the thermal scan, the Court held that, even though the Supreme Court of the United States did not mandate search warrants for thermal scans until June of 2001, this ruling was predictable as it did not constitute a departure from previous law.

With regard to the practice of obtaining electric usage records by subpoena, the Court held that such a warrantless search violates the New Jersey Constitution. In so doing, the Court declared that there is a legitimate expectation of privacy in one’s electric usage records. The Court related the electric usage issue to the policies covering thermal scans and telephone billing records.

The Appellate Division remanded this case to the Trial Court for a new motion to suppress evidence. In this new motion, the Trial Court was directed to re-examine the issues of the voluntariness of the consent, the potential tainting of the consent by what the Court determined were two illegal searches and the credibility of the police witnesses in light of the illegal searches.

The State intends to seek Certification of this case to the Supreme Court of New Jersey. In the mean time, the Appellate Division’s opinion is the law. One issue left undetermined by the opinion in this case is the propriety of the use of a subpoena to obtain information from utility companies other than for the usage of electric, or, presumably, some other power source. For example, utility subpoenas are often used to obtain customer, or subscriber, information to be included in search warrant applications. The Appellate panel in Domicz, while not reaching this issue, did concede that there is “a distinct difference between a warrantless review of utility records to ascertain the name of an occupant of property” and a review of power usage records. Hopefully, these less intrusive inquiries will ultimately be likened to the obtaining of telephone subscriber records, which the Wiretap Act permits to be done by subpoena.