In a lengthy split decision, the New York Court of Appeals has reversed the denial of suppression where police placed a GPS tracking device called a “Q Ball” on a car in People v. Weaver. In a 4-3 decision authored by Chief Judge Jonathon Lippman, the Court rejected the argument that GPS tracking was merely an extension of a police officers acknowledged right to observe a vehicle on a public road.
With the addition of new GPS satellites, the technology is rapidly improving so that any person or object,such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. 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.
While it’s difficult to discern the dividing line, the Court held, under the state Constitution which it reaffirmed to be more protective than the federal Constitution, that technological intrusion into the realm of personal privacy has its limits, no matter how good an analogy can be crafted to argue that it’s just the latest flavor of what police have been allowed to do all along.
It would appear clear to us that the great popularity of GPS technology for its many useful applications, may not be taken simply as a massive, undifferentiated concession of personal privacy to agents of the state. Indeed, contemporary technology projects our private activities into public space as never before. Cell technology has moved presumptively private phone conversation from the enclosure of Katz’s phone booth to the open sidewalk and the car, and the advent of portable computing devices has re-situated transactions of all kinds to relatively public spaces. It is fair to say, and we think consistent with prevalent social views, that this change in venue has not been accompanied by any dramatic diminution in the socially reasonable expectation that our communications and transactions will remain to a large extent private.
While leaving open the possibility, indeed probability, that there will be exigencies where a GPS device can be used without a warrant, Judge Lippman nonetheless affirms that we haven’t forsaken all rights to privacy by turning on the ignition, and that even in automobiles we retain a reasonable expectation of some privacy.
It is, of course, true that the expectation of privacy has been deemed diminished in a car upon a public thoroughfare. But, it is one thing to suppose that the diminished expectation affords a police officer certain well-circumscribed options for which a warrant is not required and quite another to suppose that when we drive or ride in a vehicle our expectations of privacy are so utterly diminished that we effectively consent to the unsupervised disclosure to law enforcement authorities of all that GPS technology can and will reveal.
The Weaver decision is a hugely significant decision on many levels, ranging from the internal division amongst the judges on the issues of search and seizure, technology, automobile exception, state constitutional breadth and deference to law enforcement. With Judge Lippman in his new seat at the center of the bench, this decision provides a critical insight into where the Court of Appeals places constitutional rights in general, and how they view use of perpetually more intrusive technology in law enforcement.
The opinion explains its rejection of GPS as just another pair of eyes based upon its degree of intrusiveness into the lives and movement of the individual, which is unlikely to provide much guidance for the next techno-enforcement trick to find its way into the police arsenal. It does, however, suggest that the Court, by a slim majority, is unprepared to let the scope of constitutional rights be dictated by technological advances rather than the preservation of personal privacy.
Unfortunate though the wiggle room remains for future exceptions may be, the clear message is that the New York Constitution still considers personal privacy, even in an automobile, worthy of protection, and that they will not blindly accept the intrusiveness of new technology to diminish constitutional rights. A very encouraging decision, and one that every New York criminal defense lawyer should read.