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Thursday, March 26, 2009

Recalculating, Take 4: Court Of Appeals Of New York Hears Oral Argument In Warrantless GPS Tracking Appeal

On several previous occasions on this blog (herehere, and here), I have addressed the issue of whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In the second of those posts, I addressed the case of People v.Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), where 

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. 

In affirming, the Third Department noted that New York precedent on the issue was split but decided to affirm Weaver's conviction because "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment. The court noted that pursuant to federal precedent (such as United States v. Knotts, 460 U.S. 276), 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. Therefore, the court 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.

While I feel uncomfortable with this conclusion, I think that it was the right one under federal precedent such as Knotts.  That said, nothing precludes states from affording citizens greater rights under their state constitutions, and that is exactly what Justice Stein did in his dissenting opinion in Weaver, concluding:

"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."   

Well, these disputes among New York courts and justices should soon be resolved.  On Tuesday, the Court of Appeals of New York (the equivalent of most states' supreme courts) heard oral arguments in Weaver. In presenting Weaver's case to the court, his attorney argued, "Your honors, we are here today to decide the most important constitutional case of this young 21st century." Meanwhile, the State's attorney countered, "When you're out in public, you're in public....People can watch you, you can be monitored, cameras can watch you." 

The response from the justices seemed mixed.  One asked Weaver's attorney, "Isn't this just a more efficient way of doing the same thing that's been done by police for a long time; namely, tailing somebody or following somebody?" Meanwhile, the Chief Justice cautioned that "We have to also consider the opportunity for abuse."  

I couldn't get it to play, but it appears that Capital News Nine has some video of the arguments or least analysis of them here. The court's ruling is expected in April. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/03/gps-nyhttpwwwlegislativegazettecomday_itemphpitem761.html

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Comments

I am the attorney that argued People v. Weaver and I must disagree w/you on your federal analysis. US v Knotts is not controlling here -- look to what Rhenquist presciently said in that decision. I would welcome an opportunity to speak w/you on this case. (518) 283-3288

Posted by: Matthew C. Hug | May 5, 2009 11:19:20 AM

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