Privacy Law and Policy : Privacy Lawyer & Attorney : Kevin Whitaker Law Firm : Patient Confidentiality, Defamation, Identity Theft : Privacy Law & Policy Blog

Before Weaver, two New York trial courts had heard similar cases with each reaching different conclusions on GPS usage and privacy rights:

• No requirement to obtain a search warrant before attaching a GPS device to track the movements of a vehicle on public roadway.  vs.
• In the absence of exigent circumstances, the attachment of a tracking device on the undercarriage of a vehicle is an intrusion requiring a search warrant.

The Weaver case, however, was a case of first impression at the appellate division court and ultimately at the New York State Court of Appeals. In Weaver, the lower appellate division court (now reversed) found a GPS posed no 4th amendment issues based on:

• There is no expectation of privacy as to the location of a vehicle on public streets;
• There is no reasonable expectation of privacy in the publicly accessible exterior of one's vehicle;
• The undercarriage is part of a vehicle's exterior;
• 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

Additionally, the reversed appellate division court noted that since visual surveillance could have gleamed the same information, there was no problem in allowing a GPS to accomplish the same.

The New York State Court of Appeal's, however, in a 4-3 ruling reversed the order of the Appellate Division.  Thus, Weaver's motion to supress the evidence obtained from the GPS device was granted and a new trial was ordered. Sewell Chan's New York Times article, Court Strikes Down GPS Tracking Without Warrant covers the recent ruling.

I think the close decision is a sign of the times and that it reflects the uncertainties surrounding technology and protected privacy rights.  In fact, the 4-3 split decision was delivered in three written opinions and the majority did not base its decision under privacy protections afforded under federal law, but instead, on those grounded in state law.

The majority's opinion compared the types of technology involved in Weaver (and its constant invasiveness) versus more limited surveillance technologies used in the past.  I predict this is likely to be a continued theme as more and more cases continue to test the limits of technolgy and privacy's protections.

These prescient questions are not limited to any one jurisdiction. The Weaver majority reviewed other states' laws for guidance on GPS technology:

We find persuasive the conclusions of other state courts that have addressed this issue and have held that the warrantless use of a tracking device is inconsistent with the protections guaranteed by their State Constitutions

While narrowly asserting privacy rights in NY, the majority's opinion expressly leaves open questions of federal law.

In reaching this conclusion, we acknowledge that the determinative issue remains open as a matter of federal constitutional law, since the United States Supreme Court has not yet ruled upon whether the use of GPS by the state for the purpose of criminal investigation constitutes a search under the Fourth Amendment, and, indeed, the issue has not yet been addressed by the vast majority of the Federal Circuit Courts.

I anticipte these federal questions will likely be pressed in time. As for now, in NY and by the slimmest of margins, the majority's opinion held:

1. There was a search under the New York State Constitution (by using the GPS device); and


2. The search was illegal because it was executed without a warrant and without justification under any exception to the warrant requirement.

Perhaps technology mustn't trump privacy rights after all...