Fourth Amendment - GPS placement on car; NY Court of Appeals

Fuck yes that's an unreasonable search.

Here you go:


52 A.D.3d 138, 860 N.Y.S.2d 223, 2008 N.Y. Slip Op. 04960

View New York Official Reports version
Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent,
v.
Scott C. WEAVER, Appellant.

June 5, 2008.

Background: Defendant was convicted in the Supreme Court, Albany County, Dan Lamont, J., of burglary and attempted grand larceny. Defendant appealed.


Holdings: The Supreme Court, Appellate Division, Rose, J., held that:
(1) trial court was not required to provide accomplice instruction, and
(2) placement of global positioning system (GPS) tracking device on defendant's car was not warrantless search.

Affirmed.


Stein, J., filed dissenting opinion.

Police officer's placement of global positioning system (GPS) tracking device on defendant's car and retrieval of data indicating car's whereabouts was not “search” requiring warrant, since defendant lacked reasonable expectation of privacy in vehicle on public roadway. U.S.C.A. Const.Amend. 4; McKinney's Const. Art. 1, § 12.

**223 Smith Hernandez, L.L.C., Troy (Trey Smith of counsel), for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.


Before: CARDONA, P.J., CARPINELLO, ROSE, MALONE JR. and STEIN, JJ.


ROSE, J.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 11, 2007 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the third degree and attempted grand larceny in the second degree.

*139 A police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a battery operated global positioning system (hereinafter GPS) device under the bumper of defendant's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, defendant and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, *140 as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. Prior to trial, defendant moved unsuccessfully to suppress all evidence obtained by the warrantless placement of the GPS tracking device. At trial, the codefendant's girlfriend testified for the People, and Supreme Court found her to be an accomplice as to the meat market burglary, but not as to the K-Mart burglary. **224 She testified to the conduct of defendant and the codefendant both before and after both burglaries, and the data produced by the tracking device tended to link defendant to the K-Mart burglary. The jury then found defendant guilty of burglary in the third degree and attempted grand larceny in the second degree as to the K-Mart burglary, but not guilty of the burglary at the meat market. Supreme Court sentenced him to two concurrent prison terms of 2 1/3 to 7 years, and he now appeals.

[1] Headnote Citing References We find no merit in defendant's initial contention that Supreme Court should have found his codefendant's girlfriend to be an accomplice in the K-Mart burglary as a matter of law, or at least should have submitted the issue of whether she was an accomplice to the jury. In support of this claim, defendant cites the evidence at trial that the girlfriend accompanied defendant and the codefendant at some earlier time when the two men “scoped out” the K-Mart and that she had participated with them in several prior burglaries. In order for a witness to be an accomplice, however, the evidence must show that “the witness took part in the preparation or perpetration of the [charged] crime with intent to assist therein, or that the witness counseled, induced or encouraged the crime” ( People v. Torello, 94 A.D.2d 857, 857, 463 N.Y.S.2d 607 [1983]; see CPL 60.22[2]; People v. Faulkner, 36 A.D.3d 951, 951, 826 N.Y.S.2d 831 [2007], lv. denied 8 N.Y.3d 922, 834 N.Y.S.2d 512, 866 N.E.2d 458 [2007] ). Here, unlike the meat market burglary where the girlfriend drove defendant and the codefendant to the scene and waited for them in the car while they committed the burglary, there is no evidence that she took any active role in reconnoitering or planning the K-Mart burglary and she stayed at home when it was committed ( see People v. Thomas, 33 A.D.3d 1053, 1054-1055, 822 N.Y.S.2d 805 [2006], lv. denied 8 N.Y.3d 885, 832 N.Y.S.2d 497, 864 N.E.2d 627 [2007]; People v. Wesley, 19 A.D.3d 937, 937-938, 797 N.Y.S.2d 632 [2005], lv. denied 5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146 [2005] ). Nor does her admitted participation in other burglaries establish that she took part in the preparation or commission of the K-mart burglary. Thus, Supreme Court did not err in denying defendant's request that she be treated as an accomplice in its instructions to the jury.

*141 Defendant next contends that County Court (Breslin, J.) erred in not suppressing the evidence obtained from the GPS tracking device attached under the bumper of his vehicle. The device was not connected to the vehicle's electrical system, was not placed inside any enclosed or interior spaces within the vehicle, did not monitor or record what occurred within the vehicle and was not used to monitor the vehicle's movements on private property. Nonetheless, defendant argues that the attachment of the device to the bumper or undercarriage of his vehicle was an intrusion into a constitutionally protected area and enabled police to track his location without being detected, matters in which he claims a privacy interest protected by both the Fourth Amendment of the U.S. Constitution and N.Y. Constitution, article I, § 12.

We note that two trial courts in New York have considered whether placement of a GPS tracking device on a vehicle constitutes a search for which a warrant is necessary and have reached opposite conclusions ( compare People v. Gant, 9 Misc.3d 611, 618, 802 N.Y.S.2d 839 [County Ct. Westchester County 2005] [finding no requirement to obtain a search warrant before attaching a GPS device to track the movements of a vehicle on public roadways],**225 with People v. Lacey, 3 Misc.3d 1103(A), 2004 N.Y. Slip Op. 50358, *8, 2004 WL 1040676 [County Ct. Nassau County 2004] [finding that, 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] ). No appellate court in New York, however, has yet considered whether such electronic surveillance constitutes a violation of the vehicle owner's constitutionally protected reasonable expectation of privacy.

In addressing this issue, we are guided by the well-settled principle that “where there is no legitimate expectation of privacy, there is no search or seizure” under the Fourth Amendment ( United States v. Moran, 349 F.Supp.2d 425, 467 [2005] ). As the federal courts have observed, a defendant has no reasonable expectation of privacy in the publicly accessible exterior of his or her vehicle, and the undercarriage is part of the vehicle's exterior ( see New York v. Class, 475 U.S. 106, 112-114, 106 S.Ct. 960, 89 L.Ed.2d 81 [1986]; United States v. Rascon-Ortiz, 994 F.2d 749, 754 [10th Cir.1993]; see also People v. Jackson, 143 A.D.2d 471, 472, 532 N.Y.S.2d 808 [1988] ). Nor can a defendant expect privacy as to the location of his or her vehicle on public streets ( see United States v. Knotts, 460 U.S. 276, 281-282, 103 S.Ct. 1081, 75 L.Ed.2d 55 [1983]; People v. Edney, 201 A.D.2d 498, 499, 607 N.Y.S.2d 380 [1994], lv. denied *142 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283 [1994] ). Thus, it has been held that 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 ( see United States v. Knotts, 460 U.S. at 281-282, 103 S.Ct. 1081; United States v. McIver, 186 F.3d 1119, 1126-1127 [9th Cir.1999], cert. denied 528 U.S. 1177, 120 S.Ct. 1210, 145 L.Ed.2d 1111 [2000]; United States v. Coulombe, 2007 WL 4192005, *4 [N.D.N.Y.2007]; United States v. Moran, 349 F.Supp.2d at 467). Moreover, nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public ( see United States v. Knotts, 460 U.S. at 282, 284, 103 S.Ct. 1081). Inasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant's Fourth Amendment protections ( see People v. Wemette, 285 A.D.2d 729, 729-730, 728 N.Y.S.2d 805 [2001], lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409; People v. Edney, 201 A.D.2d at 499, 607 N.Y.S.2d 380).

[2] Headnote Citing References To the extent that defendant argues that the N.Y. Constitution affords greater protection than the U.S. Constitution against intrusive searches, we note that the threshold issue remains whether the defendant had “a reasonable expectation of privacy in the place or object of the search” ( People v. Reynolds, 71 N.Y.2d 552, 557, 528 N.Y.S.2d 15, 523 N.E.2d 291 [1988]; see People v. Scott, 79 N.Y.2d 474, 486-487, 583 N.Y.S.2d 920, 593 N.E.2d 1328 [1992] ).FN1 As the Court of Appeals **226 has instructed, courts analyzing a given investigative procedure under our state constitutional law should “focus on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy” ( People v. Dunn, 77 N.Y.2d 19, 25, 563 N.Y.S.2d 388, 564 N.E.2d 1054 [1990], cert. denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000 [1991] ). Absent a showing of a legitimate*143 expectation of privacy, a warrant need not be obtained ( Matter of Muhammad F., 94 N.Y.2d 136, 153, 700 N.Y.S.2d 77, 722 N.E.2d 45 [1999] ).FN2 While a reasonable expectation of privacy is violated under the N.Y. Constitution when the police intrude into the passenger compartment of a vehicle without appropriate justification ( see People v. Torres, 74 N.Y.2d 224, 228, 544 N.Y.S.2d 796, 543 N.E.2d 61 [1989] ), that is not our situation here. Rather, because we recognize the diminished expectation of privacy in a vehicle on a public roadway ( see People v. Yancy, 86 N.Y.2d 239, 246, 630 N.Y.S.2d 985, 654 N.E.2d 1233 [1995]; People v. Scott, 63 N.Y.2d 518, 525, 483 N.Y.S.2d 649, 473 N.E.2d 1 [1984]; see also People v. Belton, 55 N.Y.2d 49, 53, 447 N.Y.S.2d 873, 432 N.E.2d 745 [1982] ), and that, generally, “conduct and activity which is readily open to public view is not protected” ( People v. Reynolds, 71 N.Y.2d at 557, 528 N.Y.S.2d 15, 523 N.E.2d 291), we cannot agree that the N.Y. Constitution precluded the warrantless placement of the GPS tracking device on defendant's vehicle or retrieval of its data in connection with this ongoing police investigation.

FN1. We are not persuaded by the dissent's reliance upon the holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967]. While Katz held that a person conducting a private telephone conversation in a public telephone booth has a reasonable expectation of privacy, the United States Supreme Court tellingly noted that when a person enters a telephone booth, he or she seeks to exclude the uninvited ear, but “not the intruding eye” ( id. at 352, 88 S.Ct. 507). Thus, in Katz, the question was limited to whether there is a reasonable expectation of privacy in a person's private conversations, not in the open presence of a motor vehicle in a public place.


FN2. Unlike the New York Court of Appeals, the courts in the cases cited by the dissent construed the provisions prohibiting unreasonable searches in their respective state constitutions without consideration of whether the targeted person had a reasonable expectation of privacy in the movements of his vehicle ( see State v. Jackson, 150 Wash.2d 251, 260, 76 P.3d 217, 222 [2003]; State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040, 1044 [1988] ). Those courts focused instead on the nature and intrusiveness of the police conduct in determining what constitutes a search, finding that “a privacy interest ... is an interest in freedom from particular forms of scrutiny” even though there may be no expectation of privacy in the movement of a vehicle over public thoroughfares ( State v. Campbell, 306 Or. at 170, 759 P.2d 1040; see also State v. Wacker, 317 Or. 419, 425, 856 P.2d 1029, 1033 [1993] ). In addition, it clearly was this focus on the intrusiveness of the scrutiny that led the court in State v. Campbell, supra to reject the “premise ... that information legitimately available through one means may be obtained through any other means without engaging in a search” ( State v. Campbell, 306 Or. at 166, 759 P.2d 1040). While these analyses may be valid under the constitutions and jurisprudence in Washington and Oregon, our Court of Appeals has not adopted them in considering the scope of the protection afforded by N.Y. Constitution, article I, § 12 ( see e.g. People v. Dunn, 77 N.Y.2d at 25, 563 N.Y.S.2d 388, 564 N.E.2d 1054; see also People v. Quackenbush, 88 N.Y.2d 534, 541-543, 647 N.Y.S.2d 150, 670 N.E.2d 434 [1996]; People v. Willette, 42 A.D.3d 674, 675, 839 N.Y.S.2d 597 [2007], lv. denied 9 N.Y.3d 883, 842 N.Y.S.2d 795, 874 N.E.2d 762 [2007] ).


We have considered defendant's remaining arguments, including his assertion that Supreme Court erred in permitting the People to present evidence that he had attempted to persuade the codefendant's girlfriend to absent herself from his trial, and conclude that they are lacking in merit.


CARDONA, P.J., CARPINELLO and MALONE JR., JJ., concur.



**227 STEIN, J. (dissenting).
The question of whether the N.Y. Constitution prohibits constant surveillance of an individual's whereabouts by means of a global positioning system (hereinafter*144 GPS) device without a search warrant has far-reaching implications and has never been addressed by any appellate court of this state. While I agree that an analysis under federal law would dictate the result reached by the majority ( see New York v. Class, 475 U.S. 106, 113-114, 106 S.Ct. 960, 89 L.Ed.2d 81 [1986]; United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 [1983]; United States v. Rascon-Ortiz, 994 F.2d 749, 754 [10th Cir.1993]; see also People v. Jackson, 143 A.D.2d 471, 472, 532 N.Y.S.2d 808 [1988] ), we are not bound by federal law ( see People v. Scott, 79 N.Y.2d 474, 496-497, 583 N.Y.S.2d 920, 593 N.E.2d 1328 [1992] ). “[P]rinciples of federalism secure to atate the right to afford its citizens greater insulation from governmental intrusion than is provided under the Fourth Amendment” ( People v. Reynolds, 71 N.Y.2d 552, 557, 528 N.Y.S.2d 15, 523 N.E.2d 291 [1988] ). “State courts may not circumscribe rights guaranteed by the Federal Constitution, [but] they may interpret their own law to supplement or expand them” ( People v. P.J. Video, 68 N.Y.2d 296, 302, 508 N.Y.S.2d 907, 501 N.E.2d 556 [1986], cert. denied 479 U.S. 1091, 107 S.Ct. 1301, 94 L.Ed.2d 156 [1987] ). Moreover, the Court of Appeals has “frequently applied the State Constitution, in both civil and criminal matters, to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties” ( id. at 303, 508 N.Y.S.2d 907, 501 N.E.2d 556; see People v. Torres, 74 N.Y.2d 224, 226, 228, 544 N.Y.S.2d 796, 543 N.E.2d 61 [1989] ) and, “in applying both [f]ederal and tate law, has consistently adhered to the concept ... that the Fourth Amendment and [N.Y. Constitution,] article I, § 12 protect the privacy rights of persons, not places” ( People v. Scott, 79 N.Y.2d at 488, 583 N.Y.S.2d 920, 593 N.E.2d 1328 [citations omitted]; see People v. Scott, 79 N.Y.2d at 482, 583 N.Y.S.2d 920, 593 N.E.2d 1328).

While New York courts have generally found that there is no expectation of privacy with regard to conduct that is readily open to public view ( see People v. Edney, 201 A.D.2d 498, 607 N.Y.S.2d 380 [1994] [driving on a street], lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283 [1994] ) or in areas readily accessible to the public ( see People v. Jackson, 143 A.D.2d 471, 532 N.Y.S.2d 808 [1988] [drugs behind rear tire and license plate] ), the United States Supreme Court has held that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” ( Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ).FN1 I would so find under the particular circumstances presented herein.

FN1. People v. Willette, 42 A.D.3d 674, 839 N.Y.S.2d 597 [2007], lv. denied 9 N.Y.3d 883, 842 N.Y.S.2d 795, 874 N.E.2d 762 [2007], People v. Edney, 201 A.D.2d 498, 607 N.Y.S.2d 380 [1994] and People v. Jackson, 143 A.D.2d 471, 532 N.Y.S.2d 808 [1988]-and other appellate decisions in this state cited by the majority that address the right to privacy vis a vis the protection against unreasonable search and seizure-are distinguishable from the facts presented here and are not inconsistent with this principle ( see e.g. People v. Reynolds, 71 N.Y.2d 552, 528 N.Y.S.2d 15, 523 N.E.2d 291 [1988] [no expectation of privacy in open fields where no precaution taken to preclude public entry]; People v. Wemette, 285 A.D.2d 729, 728 N.Y.S.2d 805 [2001] [no reasonable expectation of privacy on front porch], lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409 [2001] ).

*145 Specifically, I would reject the “premise ... that information legitimately available **228 through one means may be obtained through any other means without engaging in a search” ( State v. Campbell, 306 Or. 157, 166, 759 P.2d 1040, 1045 [1988] ). Instead, I would adopt the principle that “a privacy interest ... is an interest in freedom from particular forms of scrutiny” ( id. at 170, 759 P.2d 1040; see Katz v. United States, 389 U.S. at 350, 88 S.Ct. 507), and would find that “[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny” ( State v. Campbell, 306 Or. at 172, 759 P.2d 1040) and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause ( see People v. Lacey, 3 Misc.3d 1103(A), 2004 N.Y. Slip Op. 50358, *7, 2004 WL 1040676 [County Ct. Nassau County 2004]; see generally Katz v. United States, 389 U.S. at 350, 357, 88 S.Ct. 507, 19 L.Ed.2d 576). Surveillance with a GPS device is not analogous to being followed by the police on public roads ( see State v. Jackson, 150 Wash.2d 251, 261-262, 76 P.3d 217, 222-223 [2003]; State v. Campbell, supra ). In fact, in State v. Campbell, supra, a radio transmitter was attached to the defendant's automobile, precisely because the sheriff's department had been unsuccessful in physically following the automobile on a number of occasions. Furthermore, “[a]s with infrared thermal imaging surveillance, use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen” ( State v. Jackson, 150 Wash.2d at 264, 76 P.3d 217).

At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable. In my opinion, that point has been reached in the facts before us. Thus, where, as here, no warrant was issued authorizing the placement of the GPS device on defendant's car, I would find that defendant's rights against unreasonable search and *146 seizure under N.Y. Constitution, article I, § 12 were violated. In my view, this conclusion is not inconsistent with the jurisprudence of this state, which includes an expansive view of individual rights under the N.Y. Constitution ( see People v. Scott, 79 N.Y.2d at 488, 583 N.Y.S.2d 920, 593 N.E.2d 1328; People v. Torres, 74 N.Y.2d at 226, 228, 544 N.Y.S.2d 796, 543 N.E.2d 61; People v. P.J. Video, 68 N.Y.2d at 303, 508 N.Y.S.2d 907, 501 N.E.2d 556). Accordingly, I would suppress the evidence obtained from the GPS tracking device and remit the matter for a new trial.

ORDERED that the judgment is affirmed, and matter remitted to the Supreme Court for further proceedings pursuant to CPL 460.50(5).

N.Y.A.D. 3 Dept.,2008.
People v. Weaver
52 A.D.3d 138, 860 N.Y.S.2d 223, 2008 N.Y. Slip Op. 04960

END OF DOCUMENT

Last Edited by The Day After on 03/23/2009 10:55 PM

In NY, the Court of Appeals is the equivalent of the Supreme Court. When you get enough Circuit Court opinions and/or state SC opinions, it can end up in with the Supremes. The Fourth is my favorite Amendment. I wish it still existed.

Judge Stein has redeemed herself, in my personal opinion. Maybe she just didn't like small claims court.

That sums up my opinion on the matter.

I wish people would stop using the stupid 14th Amendment to get to the Federal "Bill of Rights".

How long does this stupidity have to last?