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Subject Fourth Amendment - GPS placement on car; NY Court of Appeals
Poster Handle The Day After
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Let me find a link to the case itself. Horn is a good appellate atty, but I hope he loses this one.

[link to timesunion.com]

Top NY court will weigh warrantless GPS use

By MICHAEL VIRTANEN, Associated Press
Last updated: 2:55 p.m., Monday, March 23, 2009

ALBANY -- New York's top court will consider Tuesday whether police violated the constitutional rights of a burglary suspect when they attached a global positioning tracker to his van without a court warrant.

Scott Weaver, convicted of burglary in part because of the Christmas Eve 2005 GPS data, said both his state and federal rights against an unreasonable search were violated. State police tracked his van to the parking lot of a suburban Albany department store that was later burglarized.

"It's not a search, period," said Albany County Assistant District Attorney Christopher Horn, who will argue the prosecutors' case before the Court of Appeals. "And that's because the GPS device is not put into the car. It's not installed in a car. You simply slap on a GPS device. It's got a magnet. You just find a piece of metal under the bumper and attach it."

The trial judge refused to suppress the GPS evidence. A midlevel state court concluded 4-1 the device provided essentially the same information as constant visual surveillance, which requires no warrant. A dissenting justice said citizens have a reasonable expectation their every move won't be monitored by a technical device without their knowledge.

While state courts in Oregon and Washington have found warrantless GPS tracking unconstitutional, Horn said their state constitutions have different language. In New York, it is the same as the Fourth Amendment to the U.S. Constitution, which prohibits the state from engaging in unreasonable searches and seizures without probable cause.

Warrantless GPS use by police was upheld by the federal appeals court in Chicago in a Wisconsin case the U.S. Supreme Court declined to take, said Matthew Hug, Weaver's lawyer. A similar case is pending before the federal appeals court in Maryland.

"What they miss is the public-private property boundary," said Hug, noting the police tracker was on Weaver's vehicle for 65 days. "GPS is an eye in the sky. It's unable to turn itself off. It's a passive receiver. You put your car in a garage, now it's surveilling the interior of your home without a warrant."

Weaver has been free on bail pending the appeal of his 2006 burglary conviction.

GPS tracking had been used by police before in Albany County. The technology is probably 20 years old and simply became more prevalent the past 10 to 15 years, Horn said. "Most of us have it in our cars. Half of us have it in our cell phones," he said.

Other evidence in Weaver's case, besides the GPS records that showed him slowly cruising the Kmart parking lot hours before the break-in, included testimony from his accomplice's girlfriend and blood the accomplice left in the store, Horn said. The burglars cut a wrong wire and fled when alarms went off. "They didn't actually succeed in taking anything. There was about $100,000 worth of jewelry in a case that was left behind."

According to Hug, the legal test in previous federal case law turns on whether a device augments sensory perception, such as with a simple radio beeper as a tracking device, or actually goes beyond human senses, such as using thermal imaging devices to see what's happening indoors.

New York's top court sometimes disagrees with federal courts in its constitutional analyses, Hug said. Usually the Court of Appeals "is more protective of our privacy interest," he said, and it could establish case law here that provides the lead for the nation.

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On the Net:

New York Constitution: [link to www.dos.state.ny.us]

Court of Appeals: [link to www.nycourts.gov]
 
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