Split Panel Affirms Warrantless Use of GPS Device

Joel Stashenko
06-09-2008

The warrantless use of a global positioning device on a vehicle by police does not violate a driver's right to privacy under either the U.S. Constitution or the New York state Constitution, an upstate appeals panel decided last week.

In becoming what it said was the first state appeals court in New York to address the issue, the Appellate Division, 3rd Department, panel determined that the privacy expectations of individuals under both the federal and state constitutions are lower when they are in their automobiles than when they are in their homes.

"Because we recognize the diminished expectation of privacy in a vehicle on a public roadway ... we cannot agree that the NY Constitution precluded the warrantless placement of the GPS tracking device on defendant's vehicle or retrieval of its data in connection with this ongoing police investigation," a 4-1 panel held in People v. Weaver, 101104.

As to the Fourth Amendment of the U.S. Constitution, the panel found that nothing prevents the use of technology, such as the satellite-aided positioning devices, to "surveil that which is already public."

"Inasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information [as the GPS device] and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant's Fourth Amendment protections," Justice Robert S. Rose wrote for the majority.

The dissenter, Justice Leslie E. Stein, argued that global positioning system devices are considerably more intrusive than traditional surveillance methods.

"While the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause," Stein wrote.

She conceded that an analysis of federal law dictates the majority's conclusion that the defendant's privacy rights under the Fourth Amendment to the U.S. Constitution were not violated. But she noted that the state Court of Appeals has a long tradition of holding that the state constitution affords New Yorkers broader rights than federal courts have recognized for Americans under the federal Constitution.

Stein wrote that she would find the use of the GPS device on Scott C. Weaver's vehicle was an unreasonable search and seizure under Article I, §12 of the state constitution.

"At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable," Stein wrote. "In my opinion, that point has been reached in the facts before us."

Weaver, of Watervliet in Albany County, was the suspect in a series of burglaries. A police officer who did not have a warrant put a battery-operated GPS device under the bumper of Weaver's van.

Weaver and a co-defendant were later arrested based on data retrieved from the device and convicted of burglarizing a suburban Albany Kmart on Christmas Eve 2005.

Albany County Court Judge Thomas A. Breslin denied Weaver's motion to suppress the evidence obtained from the device.

The 3rd Department's majority noted in its ruling that the GPS device was not wired into the electrical system of Weaver's van, was not placed in the interior of the vehicle and did not record the vehicle's movements on private property. All three of those factors have been cited by federal courts that have considered police use of GPS devices as requiring authorities to obtain a warrant.

The majority noted that it found rulings by two trial courts in New York on the surreptitious placement of GPS devices on vehicles. In People v. Gant, 9 Misc 3d 611 (2005),

Westchester County Court found that no warrant was necessary. In People v. Lacey, 3 Misc 3d 1103(A) (2004), Nassau County Court found that a warrant was needed.

Weaver, who was sentenced to two to seven years in prison, has been free on bail pending his appeal. His attorney, Trey Smith of Smith Hernandez in Troy, said he intends to appeal the appellate court ruling to the Court of Appeals.

Smith said his appeal before the 3rd Department largely concerned the testimony against Weaver of his co-defendant's girlfriend. Smith argued unsuccessfully that the woman was an accomplice of the two men in the robberies and should have been identified as such in Acting Supreme Court Justice Dan Lamont's instructions to the jury.

"That being said, I understood at the time when I raised the [GPS] issue the importance that this could have both for law enforcement and the freedom-loving citizens of the state," Smith said in an interview Friday. "I feel that the way this decision will work out, if it is permitted to stand, it will create a super-class of citizen, basically a police citizen, who has the right to engage in stalking behavior without cause."

Christopher D. Horn, special counsel to Albany County District Attorney P. David Soares, argued for the prosecution on the appeal. A spokeswoman for Soares did not return a call for comment Friday.