Genesee Valley Chapter — A Tale Of Three GPS Cases

A Tale Of Three GPS Cases

By David Ahl

A version of this article appeared in the ‘Daily Record’ on September 2, 2009.

On May 7, 2009, an Appellate Court in Wisconsin decided State v. Sveum, 769 N.W.2d 53 (Wis. App. 2009). The question in the case was whether the surreptitious placement of a GPS tracking device on a person’s automobile, without a warrant, and the use of the device to continuously track the person’s movements is a “search” prohibited by the Fourth Amendment. The Court reluctantly held that “neither a search or seizure occurs when the police use a GPS tracking device to track a vehicle while it is visible to the general public.”

The Court was “more than a little troubled by the conclusion that no Fourth Amendment search occurs when the police use a GPS device.” This would mean that “police are seemingly free to secretly track anyone’s movements with a GPS device.” In fact, “one can even imagine a law requiring all cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States.”

The Court urged the Wisconsin Legislature to impose limits on the use of GPS devices. Perhaps Wisconsin legislators, some of whom might occasionally exceed the speed limit, will heed that call.

Just five days later, New York’s Court of Appeals decided People v. Weaver, 12 N.Y.3d 433 (2009). The case involved a similar use of a GPS device by the police.

In a decision that can only be praised as prescient, Judge Lippman observed that GPS technology makes “[c]onstant, relentless tracking of anything … not merely possible but entirely practicable.”

Beginning from the premise that New Yorkers have a constitutional “right to be let alone”, the Court held that the placement of the GPS device was an unlawful search. New Yorkers “have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge.”

The Court acknowledged that the issue remains open as a matter of federal constitutional law. It based its decision on the search and seizure clause of the New York Constitution.

Judge Lippman recognized that the Court of Appeals has frequently held that the New York Constitution provides greater protection of our right to privacy than does the Fourth Amendment. “What we articulate today may or may not ultimately be a separate standard,” Judge Lippman wrote. “If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

The Court of Appeals rejected the Sveum Court’s contention that the control of GPS devices should be left to the legislature. “[T]he gross intrusion at issue is not less cognizable as a search by reason of what the Legislature has or has not done to regulate technological surveillance.”

Dissenting, Judge Smith did not see GPS surveillance as a search. Given sufficient manpower, the police could personally track a suspect in all public places and at all times. Prohibiting the use of a GPS device only makes the job of law enforcement more difficult.

What Judge Smith overlooks is that conducting surveillance without a warrant is always easier than conducting surveillance with a warrant. “The point of the Fourth Amendment,” the Supreme Court wrote, is that the decision to invade a person’s privacy should be made “by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10 (1948). If the Fourth Amendment doesn’t extend that rule to GPS devices, all I can say is: “I love New York.”

Two weeks ago, the Supreme Judicial Court of Massachusetts added a new dimension to the GPS discussion. In Commonwealth v. Cory, 454 Mass. 559 (Mass. 2009), the Court examined a statute which requires a person placed on probation after conviction of a sex offense to wear a GPS device on his body.

The Supreme Judicial Court held that the statute was an unconstitutional, ex post facto law as applied to the defendant. His crime was committed before the effective date of the statute. In reaching its holding, the Court found that constant surveillance via a GPS device “burdens liberty,” becoming a form of punishment.

Three GPS cases, three different outcomes. One thing is certain. The ready availability of GPS technology will present difficult questions for both judges and legislators for some time to come.