Court Upholds Warrantless Placement of GPS Device In Employee's Car

Matter of Cunningham v. NYS Dep't of Labor, ___A.D.3d___(3d Dep't. Nov. 23, 2011), is an important case. The issue in the case was whether the data from a GPS device placed in a public employer's private car was admissible in a Civil Service Law Sec. 75 hearing without a warrent. A divided court held that it was, reasoning:

Petitioner argues that the GPS devices placed on his car without a warrant ^[FN2] constituted [*3]an illegal search and seizure under the NY Constitution and that all data related thereto should have been excluded from evidence at the administrative hearing. In a case decided after OIG had concluded its investigation of petitioner, the majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, 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" (People v Weaver, 12 NY3d 433, 447 [2009]). Although the GPS evidence gathered in this proceeding would have likely been excluded from a criminal trial under Weaver, the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law (see Matter of Boyd v Constantine, 81 NY2d 189, 195 [1993]; Matter of Stedronsky v Sobol, 175 AD2d 373, 375 [1991], lv denied 78 NY2d 864 [1991]; Gibson v Koehler, 165 AD2d 768, 769 [1990]; see also Immigration & Naturalization Serv. v Lopez-Mendoza, 468 US 1032, 1041-1042 [1984]; McCormick, Evidence § 173 [6th ed] [supp] [observing that most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters]).

A search conducted by a public employer investigating work-related misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion (see Matter of Caruso v Ward, 72 NY2d 432, 437 [1988]; see also O'Connor v Ortega, 480 US 709, 725-726 [1987]). Closely related, but typically applied when the search was conducted by an entity other than the administrative body seeking to use the evidence in a disciplinary proceeding, is the exclusionary rule in the noncriminal context; such rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth" (Matter of Moro v Mills, 70 AD3d 1269, 1270 [2010]; see Matter of Boyd v Constantine, 81 NY2d at 195). In noncriminal proceedings, the clarity of the law at the time the governmental official acts can be pertinent to the reasonableness of the action and the deterrent effect (see Burka v New York City Tr. Auth., 747 F Supp 214, 220 [SD NY 1990]; see also Immigration & Naturalization Serv. v Lopez-Mendoza, 468 US at 1060 [White, J., dissenting] [urging that exclusionary rule be applied in deportation proceedings "when evidence has been obtained by deliberate violations of the Fourth Amendment or by conduct a reasonably competent officer would know is contrary to the Constitution"] [emphasis added]).

Here, respondent did not conduct the investigation in which the GPS was used, but it did refer the matter to OIG for the purpose of an investigation. Under such facts, the reasonableness test appears applicable ^[FN3]. It is undisputed that respondent had reasonable grounds at the inception of the use of the GPS to support individual misconduct by petitioner. At the time of the current investigation by OIG, an earlier disciplinary action involving petitioner was pending regarding false time records, and respondent's investigation had revealed reasonable suspicion of a continuation of such conduct. Respondent clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers' monies.

With regard to the scope of use of GPS devices, the most serious charges against [*4]petitioner involved an ongoing pattern of abuse of work time, and traditional methods — such as tailing petitioner — had been tried and had been thwarted. Petitioner used his personal vehicle during working hours for some of the suspected abuse of his state job. He could hardly have been surprised to be under investigation in light of his recent past, as well as his ongoing problems at work. The GPS devices were not constantly monitored and, in fact, there is no indication that such a capability existed for the devices that were used ^[FN4]. They were retrieved and information relevant to petitioner's location during work hours was extracted. To establish a pattern of serious misconduct (i.e., repeatedly submitting false time records and not a mere isolated incident), it was necessary to obtain pertinent and credible information over a period of time. Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonwork-related ventures during work hours. Given the facts and circumstances at the time of the investigation, we are unpersuaded that OIG or respondent acted unreasonably.^[FN5

Mitchell H. Rubinstein