New York Court holds that use of GPS tracking device without a warrant violates N.Y. Constitution

Last month, the New York Court of Appeals, the highest court in New York’s State court system, held that the use of a GPS tracking device that was surreptitiously attached to an automobile without a warrant violated the automobile owner’s right to be free from unreasonable searches and seizures under the New York State Constitution. The case is People v. Weaver and is currently only available as a Slip Opinion. The type of technology involved played a decisive role for the majority. The most pertinent opinion of the U.S. Supreme Court to date is United States v. Knotts, 460 U.S. 276 (1983) which involved the use of a homing device (referred to in the opinion as a “beeper”) to determine the location of a 5-gallon drum of chloroform as it was moved about over time. In that case, the Supreme Court ruled that the use of the beeper did not involve an unreasonable search in violation of the Fourth Amendment of the U.S. Constitution. The majority in Weaver, however, took efforts to distinguish Knotts on the basis of the technology involved. In Weaver, the majority cast the use of the beeper as a crude tracking device which merely served to supplement and assist visual surveillance on the part of the police. In other words, the majority seemed to suggest that visual surveillance and tailing of the drum constituted the primary form of surveillance, and the beeper helped the police to continue this surveillance whenever visual contact was lost.

With respect to the GPS device, however, the majority stated that “GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.” Thus, the use of GPS went too far; the majority seemed uncomfortable with the fact that 1) GPS permitted a form of surveillance which could be carried out completely independently of more rudimentary surveillance based on normal human sensory perception; and 2) the technological advantage provided by GPS was, figuratively speaking, light-years ahead of the beeper device in terms of the information it conveyed and the level of accuracy of that information.

Other distinctions between Knotts and Weaver that can be gleaned from the majority’s opinion suggest that the use of the beeper in Knotts was more limited in scope. This fact also appeared to have an influential role for the majority. For instance, the beeper was only used to track the movement of the container in a single trip from the place of purchase to Knotts’ cabin. The GPS device in Weaver on the other hand tracked the position of Weaver’s van for a period of 65 days. Additionally, the beeper was placed on the drum of chloroform, whereas the GPS device was attached to Weaver’s van. Thus, the GPS device could potentially provide the police with a picture of Weaver’s every move, whereas the beeper could only assist the police in determining where Knotts went with the chloroform drum in tow. The majority seemed disturbed by the fact that the combination of these two elements — the location of the tracking device on the vehicle and the duration of its residing there — could reveal a great deal of information about Weaver’s personal life by recording the places he had visited (whether they be places of worship, particular medical offices, by-the-hour hotels, etc.) within the 65-day period and with relatively little cost in effort.

Two judges wrote dissenting opinions in which they were each both joined by a third judge. I find both dissents quite compelling. The second dissent by Judge Read focuses more on the legal aspects of constitutional interpretation in New York, which are (I suspect) of less interest to the wider audience of this blog. In the other dissenting opinion (in which Judge Read concurred), however, Judge Smith argued that the GPS device actually did not provide the police with any more information than could be obtained by assigning a police detail to follow Weaver and observe his activities for 65 days. He criticized the majority for seeming to base their opinion on the sophistication of the technology involved as opposed to the places and things which the technology was used to surveil. At one point he quips: “I suspect that the GPS used in this case will seem primitive a quarter of a century from now. Will that mean that police will then be allowed to use it without a warrant?”

This question of technology as discussed by the members of the court touches on an issue that was alluded to at our first DETECTER meeting in Birmingham, but which we were unfortunately unable to discuss in much detail due to time constraints: namely, do new technological developments allow the police and intelligence authorities to expand the scope of surveillance beyond what was possible in the past? I agree with Judge Smith that the GPS device didn’t provide the police with more information than could have been gathered by tailing Weaver’s van for 65-days. In fact, the police detail could have provided much more information since it would have been in a position to observe Weaver’s own actions rather than the position of the van alone (Not to mention that, as it turns out, the van in question was not involved in the commission of the crime of which Weaver had been accused). Yet, the majority also has a point with respect to the virtual “effortlessness” of information-gathering which the GPS device makes possible. In other words, use of the GPS device saved the police from having to attach a surveillance detail to track the van for 65-days around the clock. By sparing the police the costs in terms of “effort” expended, manpower, personnel compensation, the technology makes surveillance “easier” to carry out. On the one hand, this is certainly a good thing if police activities are able to be accomplished more effectively and at lower costs for the public fiscus. On the other hand, didn’t the higher costs associated with traditional surveillance generally act as a deterrent against the use of surveillance where the police had less confidence that the effort would yield any benefit?