Sunday, June 8, 2008
Recalculating, Take 2: New York Appellate Court Finds Warrant Isn't Needed Before GPS Device Is Affixed To A Suspect's Vehicle
Last month, I wrote about a Tennessee case where police had, without a warrant, affixed a GPS tracking device on the Jeep of a man they suspected of being a serial rapist, whom they referred to as the "Wooded Rapist." In that post, I noted that there was a split of authority across the country as to whether police officers have to obtain warrants before attaching such devices to vehicles. The case I cited in support of the proposition that a warrant is not required was a case from a New York trial court: People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005). At that point in time, however, no appellate court in New York had ever addressed the issue of whether police can so affix a GPS tracking device without a warrant, but that all changed with the opinion of the New York Supreme Court, Appellate Division, Third Department in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), on Thursday.
In Weaver, a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van.
The Third Department began by noting that only two New York trial courts had addressed the issue and that they had come to different conclusions (In the aforementioned Gant case, the court found that no warrant was required; in People v. Lacey, 3 Misc.3d 1103(a) (County Ct Nassau County 2004), the court found that a warrant was required absent exigent circumstances). It then noted, however, that "[n]o appellate court in New York...has yet considered whether such electronic surveillance constitutes a violation of the vehicle owner's constitutionally protected reasonable expectation of privacy."
In addressing this issue, the Third Department indicated that it was guided by the well-settled principle that "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment. It then found that pursuant to federal precedent, a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. It thus found that the warrantless attachment of the GPS to Weaver's vehicle was legal because collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment.
Moreover, the Third Department found that nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public. Furthermore, the court concluded that "[i]nasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information 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.
I still disagree with this final conclusion and refer readers back to my previous post, where I quoted the Supreme Court of Washington's opinion in State v. Jackson, 76 P.3d 217 (Wash. 2003), which found that a warrant was required, noting, inter alia, that it perceived "a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life."
And apparently, Justice Stein, who dissented in Weaver, agreed, citing liberally to the Jackson opinion in concluding that a warrant was required before the GPS device was affixed. Now, Justice Stein actually found that the Fourth Amendment to the U.S. Constitution did not require a warrant, but he found that the New York Constitution did require a warrant because it affords a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties. And, like the court in the Jackson case, Justice Stein defended his position with what I regard as quite elegant language:
"Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....' Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, 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."
Do readers have an opinion on this issue? Do drivers shed their constitutional rights against warrantless searches at the garage door? Is affixing a GPS device to a vehicle the same level of intrusion as police surveillance? Are readers comfortable with the Third Department's ruling, or are there concerns about the level of surveillance that can take place with today's (and tomorrow's) technology?