The Court went on to review the leading U.S. Supreme Court case, United States v. Knotts, 460 U.S. 276 (1983), in which a “mere beeper” was used to do exactly the same thing as the GPS device in the case before them. The Court distinguished the “beeper” from a GPS device with the following line: “[W]e must now, more than a quarter of a century later, recognize [the beeper] to have been a very primitive tracking device.”

Although the opinion provides no technological description of either the beeper or the GPS device—but merely characterizes the former as more primitive—it appears that the Court believes it is the efficacy of the newer device that removes it from the ambit of “primitive.” As the Court wrote: “[T]he potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.”

The majority was particularly troubled by its perception of the reach of the more advanced GPS devices. It felt GPS would permit the police to learn, with minimal difficulty and without expending the manpower resources that would otherwise be necessary for constant surveillance, “[t]he whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries” including “trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

The Court went on to acknowledge that there had been no definitive controlling federal ruling on the use of GPS technology. Consequently, invoking the “greater protections” afforded New Yorkers by the state Constitution, the Court ruled that the use of a GPS tracking device was a search within the meaning of the state Constitution and thus, “in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.”

As a result of its concerns about diminished privacy, the Court ruled that the state Constitution mandated that a GPS device could be used only if the People obtain a warrant based upon probable cause.

The dissenters sharply disagreed. While the majority opinion is a quagmire, Judge Susan P. Read’s dissent is precise.1 The first line in her dissent makes it clear that she thinks the majority’s opinion has no basis in fact, law or logic; or as she eloquently states:

The majority opinion—while destined to elicit editorial approval—is wrong on the law and unnecessarily burdens law enforcement and the courts, and, more importantly, all New Yorkers. …I agree with Judge [Robert] Smith [who wrote the other dissenting opinion] that there was simply no search within the meaning of the Federal or State Constitutions. I write separately to emphasize two untoward consequences of today’s decision: first, our State constitutional jurisprudence has been brushed aside; second, we are handcuffing the Legislature by improperly constitutionalizing a subject more effectively dealt with legislatively than judicially in our system of government.

One could come to the conclusion that Judge Read was really upset with the majority opinion—one of the first written by the new chief judge, Jonathan Lippman—to have published the legal equivalent of a smack down. She explains quite clearly how the majority failed in identifying or even discussing any reason, as it is required to under People v. P.J. Video , 68 N.Y.2d 296 (1986), when it departed from the U.S. Supreme Court’s interpretation of the Fourth Amendment, and interpreted Article 1, §12 more broadly.

She then went on to discuss that the cases cited by the majority (a) do not give information as to why GPS requires a higher standard, (b) do not fit with those decisions where the Court already found a diminished expectation of privacy in a vehicle on the public streets, and (c) do not square with the Court’s previous findings that behavior readily open to public view is not protected by the Constitutions.

And while the majority ignored previous U.S. Supreme Court and New York Court of Appeals decisions in the federal courts and New York state, they desperately clung to Washington and Oregon state decisions, without any discussion as to the facts of those foreign cases, or the differences in those states’ constitutions.2

The failure to meaningfully distinguish Knotts, of course, is of particular concern in these difficult budget times. It goes without saying that GPS technology presents law enforcement with the ability to continue meaningful surveillance of a suspected wrongdoer without expending the resources necessary to have officers physically track that suspect 24 hours a day, seven days a week. While, in my experience, this actual physical surveillance is doable, I speak from the perspective of a New York City prosecutor who is able to call on the resources of the New York Police Department. But this will not necessarily be true in each of our 62 counties, particularly those whose geographic reach is enormous. Public policy demands recognition that any savings that can be achieved through technology which, at the same time, will allow law enforcement to continue to keep this the safest big state in the nation, ought to be acceptable.

But this is not even the most problematic aspect of Weaver. As Judge Read so aptly put it, the majority identified no basis in the text of the state Constitution, nor in “a judicial perception of sound policy, justice and fundamental fairness” justifying the decision to depart from federal constitutional principles.

Justice Smith concurred with Justice Read on this issue in his separate dissenting opinion. He pointed out that it is clear that a person’s property interests are a separate thing from their constitutionally protected privacy interests, stating, “The device was attached to the outside of the car while it was parked on a public street. No one who chooses to park in such a location can reasonably think that the outside—even the underside—of the car is in a place of privacy. He may reasonably expect that strangers will leave his car alone, but that is not an expectation of privacy; it is an expectation of respect for one’s property rights.”

This suggests a Court that feels free to provide interpretations of state rights which have no textual or historical basis. This, in turn, is particularly discouraging for law enforcement for it suggests a court willing to make rules about police/citizen encounters long after the encounter has ended, with the police having relied on a reasonable, though ultimately erroneous, understanding of what the federal and state constitutions require.

This, then, leaves no guidance to those officials sworn to uphold the law and who every day are trying to protect the state’s citizens with the inevitable, undesirable result that, “The criminal is to go free because the constable has blundered.”3

Open Questions

When one finishes digesting the Weaver case, one realizes that although the Court has declared that law enforcement must get a warrant in order to use GPS technology, the following questions are left open:

1. Are these warrants to be made under a C.P.L. Article 690 (search warrants) standard, or something else?

The answer is likely C.P.L. Article 690, because the Court stated that its opinion is based on the fact that the People were wrong when they “contend only that no search occurred, a contention we find untenable.” Assuming as we now must that the placement of a GPS device on a car is a search, since the device is an investigatory tool, the physical intrusion in its placement is minimal, and no actual seizure of property is taking place, the standard should be on less than probable cause.

2. What are the exigent situations when the Court will excuse the police from obtaining a warrant?

The Court states that the exceptions are “a few [that are] specifically established and well-delineated,” and cites Katz v. United States, 389 U.S. 347, 357 (1967). But, Katz is the case that the U.S. Supreme Court later relied on in Knotts , the “beeper” case, to state that a warrant is not required in this type of situation. In other words, law enforcement cannot know how the Court of Appeals may reinterpret Fourth Amendment law. This lack of direction or predictability is what makes Weaver a dangerous opinion.

3. Since the Court was offended by the length of time the GPS device was attached, does it give a time limit it finds reasonable?

No. Although courts normally decide only the case before them, here the Court of Appeals declared a whole new regulation for investigations, without letting law enforcement know the time limits of those investigatory tools. While, law enforcement must by statute execute a search warrant within 10 days, and a wiretap can only last 30 days, at this time there is no statutory time limit for how long the police can monitor a GPS device.

4. What should this warrant or ex parte order look like, since only a “search” will take place, and not a seizure?

An ex parte order giving permission for a police or peace officer to attach the device to the car and to read the data is the most appropriate way to proceed.

5. Instead of using a GPS-device, can law enforcement go “old school” and use the old “beepers” to track suspect movement?

Possibly, since the majority opinion made such a point of distinguishing between the two technologies.

Perhaps it is best to close this article by quoting the end of Judge Read’s decision:

[A]s the majority’s thin legal analysis and Judge Smith’s dissent show, federal and New York precedents do not transmute GPS-assisted monitoring for information that could have been easily gotten by traditional physical surveillance into a constitutionally prohibited search. By ruling otherwise, the majority calls the Court’s institutional integrity into question, and denies New Yorkers the full benefit of the carefully wrought balance between privacy and security interests that other states have struck for their citizens through legislation.