Column: Electronic Tracking and the Constitution (New York Law Journal)

By Christopher Dunn — Recent technological advances are rapidly obliterating the space that has separated law-abiding people from the police. At the same time, these advances threaten to render obsolete the legal protections people have enjoyed against unwanted police monitoring of their activities.

Reflecting these trends, the Appellate Division earlier this month issued its first ruling addressing whether the police can, without a warrant, surreptitiously use a GPS device to track a criminal suspect. In light of this decision, the New York Court of Appeals now may be called upon to address an issue that is cropping up across the country: To what extent do constitutional protections – state or federal – limit the power of the police to use electronic devices to track people?

GPS Tracking in New York

Though GPS devices have been widely available for several years now, until the recent Appellate Division ruling there were only two reported New York decisions – one from Nassau County Supreme Court and one from Westchester County Supreme Court – addressing challenges to police use of the devices to track and prosecute criminal suspects. And those courts had split, with one finding that GPS tracking implicated state and federal constitutional guarantees and the other finding to the contrary.

On June 5 the Third Department weighed in when it issued its decision in People v. Weaver. There, a police officer investigating a series of burglaries had, without obtaining a warrant, attached a GPS device under the bumper of a suspect’s van while it was parked on a public street and then had tracked the van’s movements. Based on this tracking information and other evidence, the police arrested the suspect and charged him with various crimes. The defendant unsuccessfully moved to suppress the evidence obtained from the GPS tracking, was convicted, and then appealed to the Appellate Division.

The court, with one judge dissenting, rejected the defendants’ claim that the warrantless use of the GPS device violated his state and federal constitutional rights. Starting with the federal claim, the court observed that Fourth Amendment jurisprudence limited federal search-and-seizure claims to intrusions into realms in which one had a “reasonable expectation of privacy” and then cited a series of cases for the proposition that people had no reasonable expectation of privacy in the movement of vehicles on public streets. And it flatly rejected the notion that increasingly sophisticated surveillance capabilities required a different approach:

[N]othing 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. Inasmuch as constant 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.

As for the defendant’s claim under the New York Constitution and his contention that state guarantees are broader than federal ones, the court rejected that. Rather, it read various Court of Appeals rulings as adopting the same “reasonable expectation of privacy” standard that it believed foreclosed the federal claim.

In dissent Justice Leslie E.Stein rejected the notion that changes in technology have no bearing on Fourth Amendment analysis. To the contrary, she reasoned that, even if one were working within the “reasonable expectation of privacy” framework, new technologies can breach prevailing expectations:

[W]hile 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 on probable cause. . . . .

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.

Federal Endorsement with a Major Caveat

While the legal controversy over GPS is relatively new to New York, courts around the country have been grappling with it for several years. On the federal side, the Supreme Court has never addressed whether the Fourth Amendment regulates the use of GPS devices. In 1983, however, it decided a case that involved a form of electronic tracking, and that decision has guided subsequent lower federal court rulings.

In United States v. Knotts federal agents investigating drug activity obtained the consent of a chemical company to place a “beeper” inside a container of chemicals used to manufacture illegal drugs. When a suspect purchased chemicals from the manufacturer, it gave him the container with the beeper. The federal agents then tracked the movement of the container until it ended up on the private property of another person. The agents subsequently raided the property, located the container along with evidence of a drug-manufacturing operation, and used the seized materials to obtain a conviction of the property owner. The property owner’s challenge to the legality of the use of the beeper then ended up before the Court.

In an opinion by Chief Justice Rehnquist, the Court hewed to its traditional “reasonable expectation of privacy” analysis and its prior cases holding that people have a diminished expectation of privacy when traveling in automobiles on public streets. And in doing so, it rejected the notion that enhanced surveillance abilities changed the analysis:

Visual surveillance from public places along [the driver’s] route or adjoining [the property owner’s] premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of [the driver’s] automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory facilities bestowed upon them at birth with such enhancements as science and technology afforded them in this case.

Nonetheless, the Court did not endorse unchecked police use of tracking devices. In response to the stated concern that a result of its holding would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision,” the Court asserted that there was no record of such abuse and further that, “if such dragnet type of law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

In the 25 years since Knotts the federal appeals courts routinely have rejected Fourth Amendment challenges to police use of electronic tracking devices to monitor the movement of criminal suspects’ vehicles on public streets. During that time, however, the capacity of these tracking devices has increased dramatically, and the courts are starting to recognize that a new constitutional analysis may be required to match this technological progress. For instance, when the Seventh Circuit recently rejected a GPS challenge, influential Judge Richard Posner wrote:

The new technologies enable, as the old (because of expense) do not, wholesale surveillance. One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the new device so that the government can keep track of all vehicular movement in the United States. It would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment – that it could not be a search because it would merely be an efficient alternative to hiring another 10 million police officers to tail every vehicle on the nation’s roads.

An Opening in the Northwest

While the federal courts have yet to respond to the threat of ubiquitous surveillance posed by sophisticated GPS technology, two state supreme courts in the Northwest have, and their decisions may present a blueprint for the New York Court of Appeals once the issue reaches that court.

The first was the Supreme Court of Oregon, which held in 1988 that use of a radio receiver to track a criminal suspect was a search within the meaning of that state’s constitution so as to require a judicial warrant. Like the defendant in the recent Third Department case, the defendant in State v. Campbell was suspected of a series of burglaries, leading police officers to attach the receiver to his car. The police nonetheless were unable to follow the vehicle, but use of an airplane ultimately located the vehicle through the receiver 40 miles away near a home that the defendant ultimately was convicted of burglarizing.

On appeal, the Supreme Court recognized that the “reasonable expectation of privacy” standard governed Fourth Amendment analysis but expressly rejected that analysis as controlling the counterpart provision of the state constitution because it had become “a formula for expressing a conclusion rather than a starting point for analysis.” Rather, the court held that the value protected by the state constitution was “the privacy to which one has a right” (emphasis in original).

Having jettisoned the doctrinal framework that allows increased surveillance capacity to shrink Fourth Amendment protections, the court then squarely rejected another pillar of electronic-tracking decisions: “[I]t is wrong to characterize the radio transmitter as simply a device for ‘enhancing’ visual observation in the manner of moderate power binoculars or camera lenses. The transmitter has nothing to do with vision; it broadcasts a signal that enables the police to locate, with little delay, the transmitter from anywhere its signal can be received.” Most significantly, the court recognized that technological advances since the adoption of the state constitutional protection in 1859 required a new approach to search and seizure law, one based on a core principle of “the people’s freedom from scrutiny.” And this principle mandated judicial oversight of tracking devices:

Any device that enables the police quickly to locate a person or object anywhere within a 40-mile radius, day or night, over a period of several days, is a significant limitation on freedom from scrutiny … Without an ongoing, meticulous examination of one’s possessions, one can never be sure that one’s location is not being monitored by means of a radio transmitter.

Voicing even more serious concerns – perhaps prompted by the intervening advances in tracking technology – the Supreme Court of Washington reached a similar conclusion in 2003 in State v. Jackson. That case involved use of a GPS device to track a man suspected of murdering his daughter, with the device leading police to a remote spot where the man had buried the girl’s body.

At the outset, the court eschewed the federal “reasonable expectation of privacy” formulation, recognizing that standard’s vulnerability to advancing technology. And like the Supreme Court of Oregon, it rejected the notion that electronic tracking was simply an enhanced version of visual observation. Going further, it explained how GPS tracking opened the door to extraordinarily intrusive government surveillance, allowing the government to monitor visits to a wide array of places, including doctors’ offices, political party meetings, strip clubs, family planning clinics, the “wrong” side of town, and labor rallies.

Given these capabilities, the court agreed with the Supreme Court of Oregon and held that police use of a GPS device required a warrant. Otherwise, “then there is no limitation on the State’s use of these devices on any person’s vehicle, whether criminal activity is suspected or not.”

Looking Forward in New York

Whether as a result of an appeal of the recent Third Department ruling in Weaver or in another case, the issue of government electronic tracking of people will reach the New York Court of Appeals. When it does, the court will be presented with a major opportunity to consider the extent to which state constitutional guarantees may surpass the increasingly narrow protections of the Fourth Amendment. Equally importantly, it will face the challenge of formulating the protections that New Yorkers can invoke in the face of a burgeoning surveillance society.

Christopher Dunn is associate legal director of the New York Civil Liberties Union