Last month, the U.S. Supreme Court in United States v. Jones1 held that the use of a global positioning system (GPS) by law enforcement to track a suspect’s vehicular travel constitutes a “search” within the meaning of the Fourth Amendment. Therefore, law enforcement’s use of a GPS device in a criminal investigation without a valid warrant is unconstitutional. This outcome is consistent with a decision reached several years earlier by the New York Court of Appeals in People v. Weaver,2 in which the court held that the warrantless use of a GPS by law enforcement violated the New York State Constitution.
Between Jones and Weaver, the constitutionality of using GPS devices in a criminal investigation is now firmly settled. Yet questions stubbornly persist. Do the holdings of these cases make it unconstitutional for the government to use GPS technology to track an individual’s movements outside of a criminal investigation? A recent appellate division case, Cunningham v. Department of Labor,3 suggests that the warrantless use of a GPS may be constitutional in an administrative rather than criminal investigation. That case, now pending before the Court of Appeals, will present the Court with an opportunity to rule on the constitutionality of state GPS tracking outside of criminal matters.
The Law Before ‘Jones’
Before the Supreme Court’s recent decision in Jones, the federal circuits were split on the question of whether GPS tracking constitutes a Fourth Amendment search.4 The rationale for holding that the use of a GPS was not a search rested primarily on the long-established principle that individuals have a reduced expectation of privacy in their movements on public roadways. Since anyone can readily observe a traveler driving on a public thoroughfare from point “A” to point “B,” law enforcement can follow or “tail” a suspect on public roadways by sight without infringing on a suspect’s privacy interests. Thus, tailing a suspect is not a search and does not require a warrant.
Before Jones, the Supreme Court’s closest encounter with a device vaguely analogous to GPS occurred in United States v. Knotts.5 In that case, law enforcement officers installed a beeper in a drum of chloroform at the chemical supply company where the suspect was expected to make a purchase. The officers did not have a warrant, but the chemical company permitted them to place the beeper in the drum. The suspect subsequently purchased the drum and transported it in his vehicle to a remote cabin, where he had a make-shift laboratory suitable to make illegal substances. The law enforcement officers were able to track the suspect’s travels through a combination of visual surveillance and reading radio signals broadcast by the beeper. In a subsequent criminal trial, the suspect moved to suppress the evidence.
The Supreme Court held that the use of the beeper was not a search, because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Further, the Court stated:
When [the suspect] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.
Following the Knotts rationale, the Seventh, Eighth and Ninth Circuit Courts of Appeals later held that the use of a GPS device to track a suspect’s movements on public roadways was, likewise, not a search.6
But in Weaver, a divided New York Court of Appeals decided that the use of a GPS device in a criminal investigation is a search, at least under the New York State Constitution. The Court expressly declined to decide the question under the U.S. Constitution. In Weaver, police officers used a GPS device to track a burglary suspect’s travels over a 65-day period without a warrant. The police later used the GPS data to link the suspect to two separate burglaries in upstate New York, which occurred during the GPS monitoring period. The trial court declined to suppress the GPS evidence, and the Appellate Division, Third Department, affirmed.
In a 4-3 decision, the Court of Appeals reversed. The majority distinguished the Knotts case, observing that the scope of intrusion occasioned by GPS is significantly greater than the intrusion of the radio beeper addressed in that case. The Court of Appeals stated:
Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.…
Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts.
Although individuals are traditionally regarded as having a reduced expectation of privacy in their travels on public roads, the Court opined that the totality of information harvested from continuous GPS monitoring is greater than an account simply of where one goes. It creates a potentially intimate portrait of who a person is. The opinion of the Court of Appeals states:
Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be 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, the synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.7
In the final analysis, the Court concluded that the defendant’s expectation of privacy in his vehicle, while small, was sufficient to protect against the warrantless use of GPS monitoring. As the Court put it: “The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.”
Supreme Court’s Decision in ‘Jones’
The Supreme Court finally examined the issue in United States v. Jones. In Jones, law enforcement officers placed a GPS device on a narcotics suspect’s jeep and used it to track the vehicle’s movements for 28 days. Although the officers applied for and obtained a search warrant, the warrant expired before the officers affixed the GPS device and, therefore, the monitoring occurred without a valid warrant in place. A divided Circuit Court for the District of Columbia held that the monitoring amounted to a warrantless search, requiring suppression of the GPS evidence.8
The Supreme Court unanimously affirmed. Although all nine Supreme Court Justices agreed this use of a GPS device was a Fourth Amendment search, a concurring opinion by Justice Alito reflects division with respect to the rationale.
The Opinion of the Court, written by Justice Antonin Scalia (in which Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined), followed a surprisingly narrow path to the conclusion that the use of the GPS device was a search. Justice Scalia’s opinion sidestepped the issue of whether an individual has a reasonable expectation of privacy in his movements on public roadways that could be offended by sustained monitoring via a GPS. Instead, Justice Scalia focused on the physical act of affixing the GPS device on the vehicle. The opinion reasoned that this physical act was an interference with the suspect’s property—effectively a trespass. The opinion further explained that a trespass undertaken by the government for the purpose of obtaining information is, per se, a search, and does not require any further analysis of whether a citizen’s “reasonable expectation of privacy” has been abridged. Justice Scalia distinguished Knotts (the beeper case) on the basis that there was no trespass in that case—the beeper was affixed to the chloroform drum before the suspect purchased it with the consent of the chemical company that sold it.
The concurring opinion by Justice Samuel Alito (in which Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined) heavily criticizes the Scalia opinion for missing the point:
[T]he Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).
And, perhaps presciently, Justice Alito opined that the Court’s fixation on the physical intrusion of placing the GPS device offered no guidance regarding the constitutionality of various other forms of electronic monitoring that are now possible without placing an object on a suspect’s property. Justice Alito’s concurring opinion stated:
The Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. …Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users. …The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.
Justice Alito favored a “reasonable expectation of privacy” test, and concluded that continuous monitoring of vehicular movements through a GPS, for approximately a month, would offend a reasonable expectation of privacy.
GPS Devices in Non-Criminal Cases
Based on Jones and Weaver, the constitutionality of warrantless GPS tracking in a criminal case is settled under federal and state law. A new frontier is the question of whether it is constitutional for the government to use warrantless GPS tracking in non-criminal investigations. As it happens, that issue is set to come before the New York Court of Appeals in an appeal from the Appellate Division’s decision in Cunningham v. New York State Department of Labor.9
In Cunningham, a divided Appellate Division held that the New York State Office of Inspector General’s (OIG) use of a GPS device to track a state employee’s travel did not violate the employee’s Fourth Amendment rights. The GPS device was placed on the employee’s personal vehicle without his knowledge and without a warrant.10 Two justices dissented, qualifying the case to be appealed as of right [a court action that a party may take without permission of the court, as opposed to requiring leave of court] to the Court of Appeals (CPLR §5601(a)). An appeal has, in fact, been filed with the high court.
The state employee in Cunningham was the Director of Staff and Organization for the New York State Department of Labor. During the 10 years preceding the use of the GPS, the employee was disciplined on several occasions for workplace misconduct. In 2008, the Department suspected that the employee was engaged in a pattern of taking unauthorized absences from work and falsifying time records. It assigned an investigator to follow the employee when he left his office during work hours, but this effort was unsuccessful, as the employee apparently realized that he was being followed. The Department then referred the matter to the OIG.
As part of its investigation, OIG affixed GPS devices to the employee’s private vehicle while it was parked in a parking lot near his workplace. OIG captured GPS data over a 30-day period, 24 hours a day, seven days a week. The data revealed that the employee reported false information about the number of hours he worked and submitted false travel vouchers. The Department subsequently commenced an administrative disciplinary proceeding against the employee. The employee moved to suppress the GPS evidence, arguing that the GPS monitoring was a warrantless “search.” A Judicial Hearing Officer denied the motion. At the conclusion of the proceeding, the employee was found to have committed misconduct and his employment was terminated, after which he commenced an Article 78 proceeding, which the state Supreme Court transferred to the Appellate Division.
Cunningham is a case of first impression in New York—no New York court has previously decided whether a state agency can surreptitiously use a GPS to investigate suspected misconduct by a public employee without running afoul of the Fourth Amendment.
The administrative (rather than criminal) character of the proceeding in Cunningham was, in fact, the central reason why the Third Department affirmed the Judicial Hearing Officer’s consideration of the GPS evidence, notwithstanding the Court of Appeals’ holding in Weaver. Indeed, in Cunningham, the Third Department conceded that the GPS data harvested by OIG “likely would have been excluded from a criminal trial under Weaver.” But investigations by public agencies of public employees differ from criminal investigations in some key respects, which have traditionally justified a less rigid application of Fourth Amendment principles in the former context. For one thing, an employee’s liberty is not at stake in an administrative disciplinary proceeding. In addition, it has been recognized that state employees enjoy “a reduced expectation of privacy” at their workplace and work activities.11 Furthermore, while state agencies are certainly expected to investigate and discover misconduct committed by their employees, they generally lack the authority to apply for a search warrant.12
Thus, the Court of Appeals has previously held:
• The constitutionality of a search conducted by a public employer for noninvestigatory, work-related purposes, as well as for investigations of workplace misconduct, should be judged by the standard of reasonableness under all the circumstances, as to both the inception and the scope of the [government] intrusion (internal quotations omitted).13
• [A] search by a public employer may be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose.14
• A search by a public employer is permissible in scope when the means adopted are reasonably related to the objectives of the search and are not excessively intrusive given the nature of the misconduct.15
Based on these principles, the Cunningham majority found both that the state had a reasonable basis to use the GPS device in the first place and that the state’s continued use of the GPS for 30 days was reasonable in scope. As to the reasonable basis for undertaking the GPS monitoring at the outset, the court observed that the employee in question had a history of misconduct, some of which involved accusations of falsifying time records. Therefore, use of the GPS at inception was a reasonable investigatory approach.
With regard to the scope of the state’s use of the GPS, the majority opinion recited a number of circumstances that purportedly justified using the devices for 30 days. Among other things, the Third Department noted that traditional methods of surveillance, such as “tailing” the employee, had been unsuccessful. Furthermore, the court opined that the employee should have reasonably expected to be under investigation “in light of his recent past, as well as his ongoing problems at work.”
The court further noted that at the time of the GPS monitoring, the state had a reasonable basis to believe that the warrantless use of a GPS was not a Fourth Amendment violation even in the criminal law context because the Court of Appeals had not yet decided the Weaver case at that time. Based on this totality of circumstances, the court held that the use of the GPS was reasonable. The dissent (authored by Justice Edward O. Spain, with Justice Elizabeth A. Garry concurring), however, found that the state’s continued use of the GPS for a month, 24 hours per day, 7 days a week, was “so broad and intrusive as to defy a finding of reasonableness.”
As noted, Cunningham has been appealed to the Court of Appeals as of right. An attempt to handicap how the case will fare before the high court is, perhaps, a fool’s errand. Jones and Weaver were both criminal cases and are not directly controlling on the constitutionality of GPS tracking in non-criminal contexts. It is fair to say that the Supreme Court’s decision in Jones is not imbued with the kind of ardor that would necessarily make it a dominant influence on the Court of Appeals’ treatment of Cunningham. As noted, the majority in Jones carefully avoided any broad policy pronouncements about privacy, “Big Brother” or the march of technology, and instead decided the criminal constitutionality issue on a narrow “trespass” theory that Justice Alito critiqued as archaic and “artificial.”16
Nevertheless, the Court of Appeals’ own decision in Weaver unmistakably confronted the use of a GPS as an important privacy issue. The majority wrote at length about the profound scope of the intrusion and all the possible abuses that may come of continued monitoring of an individual’s travels over a period of days or weeks. In the final analysis, the Court of Appeals found that the invasion into the subject’s affairs was so complete that it is “inconsistent with even the slightest reasonable expectation of privacy.”17 Thus, the Court of Appeals may be prepared to conclude, even outside the realm of criminal cases, that sustained, warrantless tracking of a subject’s movements with a GPS is unconstitutional.
Theresa B. Marangas and Benjamin F. Neidl are partners at Wilson Elser Moskowitz Edelman & Dicker in Albany.
1. United States v. Jones, 2012 U.S. LEXIS 1063 (Jan. 23, 2012).
2. People v. Weaver, 12 N.Y.3d 433 (2009).
3. Cunningham v. Department of Labor, 89 A.D.3d 1347 (3d Dept. 2011).
4. See United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) (holding that use of GPS is a search, requiring a warrant). Compare United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (holding that use of GPS is not a search; no warrant required); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010) (use of GPS is not a search); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) (use of GPS is not a search).
5. United States v. Knotts, 460 U.S. 276 (1983).
6. Garcia, 474 F.3d at 997-98; Marquez, 605 F.3d at 609-10; Pineda-Moreno, 591 F.3d at 1216.
7. Weaver, 12 N.Y.3d at 441-42.
9. Cunningham v. New York State Department of Labor, 89 A.D.3d 1347, 2011 N.Y. App. Div. LEXIS 8335 (3d Dept. 2011).
10. Id. at *2.
11. Caruso v. Ward, 72 N.Y.2d 432, 438 (1988).
12. Shankman v. Axelrod, 73 N.Y.2d 203 (1989).
13. Caruso, 72 N.Y.2d 437.
15. Morris v. Port Auth. of N.Y. and N.J., 290 A.D.2d 22, 28 (2002).
16. Jones, 2012 U.S. LEXIS 1063, at *33.
17. Weaver, 12 N.Y.3d at 444.