Placing Police Gps Tracking Device Without a Warrant in New York
In People v. Weaver, 12 NY3d 433, 909 NE2d 1195, 882 NYS2d 357 (2009), the Court of Appeals concluded that the physical placement by police of a GPS tracking device inside the bumper of defendant's street-parked van and the constant monitoring for more than two continuous months, without a warrant or justification under any exception to the warrant requirement, constituted a search in violation of the New York State Constitution.
The Court held that "under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (id., at 447).
Chief Judge Lippman, writing for the majority in Weaver, observed that "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 . . . 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" (People v. Weaver, 12 NY3d at 441).
He noted that "with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons--to mention just a few of the highly feasible empirical configurations" (id., at 442).
He concluded 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. . . . It is fair to say . . . 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. Here, particularly, where there was no voluntary utilization of the tracking technology, and the technology was surreptitiously installed, there exists no basis to find an expectation of privacy so diminished as to render constitutional concerns de minimis" (id., at 442-443).