We’ve covered several Fourth Amendment cases lately – most recently, yesterday morning – and, given the current headlines, that’s hardly a surprise. Here’s another recent case, this time out of New York. Petitioner Cunningham had worked for the State for almost thirty years, when he was suspected of taking “unauthorized absences from duty” and of falsifying “records to conceal those absences”. As part of its investigation, the State attached a GPS device to his car, without a warrant. Based in part on information obtained due to the GPS device, Cunningham was fired, and so he appealed to the state’s highest court.
The New York State Court of Appeals’ recent order lays out the facts more precisely:
[T]he first step in the Inspector General’s investigation was to attach a GPS device to petitioner’s car, without petitioner’s knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car’s movements for a month, including evenings, weekends and several days when petitioner was on vacation in Massachusetts. Later, the Inspector General pursued other avenues of investigation: surveillance of an apartment building petitioner was suspected of visiting during working hours, subpoenas for E-ZPass records and interviews of petitioner and his secretary.
It was undisputed that the use of the GPS device was considered a “search” under the Fourth Amendment, but the issue here was “when, if ever, a GPS search is permissible in the absence of a search warrant”. The majority found that “the “workplace” exception to the warrant requirement” applied here. This exception was laid out in O’Connor (a 1987 U.S. Supreme Court case), which held that:
…requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.
For his part, Cunningham argued that the workplace exception should be limited to just the ”the workplace itself, or… workplace-issued property that can be seen as an extension of the workplace”. He claimed that, since the GPS device tracked him while on vacation, and outside of work hours, the State should have got a warrant. No luck.
We reject the suggestion, at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.
Relying on O’Connor, the court concluded that warrants were not required for GPS tracking of employee vehicles during the business day. As it happens, the search in this instant search was still deemed unreasonable, and so Cunningham’s termination was held to be impermissible. But that seems almost beside the point. In a separate concurrence (agreeing with result only), Judge Abdus-Salaam strongly articulated her disagreement with the majority’s reasoning. From the NY Law Journal:
“No New York court has ever permitted government employers to search employees’ personal cars without a warrant, and the majority creates a dangerous precedent by allowing them to do so now,” Abdus-Salaam wrote. “All government employees, at all levels, in all three branches of government, may now be subject to electronic surveillance based upon a mere ‘reasonableness’ standard.”