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STATE’S USE OF A GPS DEVICE TO TRACK STATE EMPLOYEE’S MOVEMENTS DID NOT REQUIRE A WARRANT, BUT THE SEARCH WAS UNREASONABLE BECAUSE ALL OF THE EMPLOYEE’S MOVEMENTS, EVEN WHEN THE EMPLOYEE WAS ON VACATION, WERE TRACKED, THE GPS EVIDENCE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Smith, over a three-judge concurrence, determined the evidence obtained about a state employee’s movements by placing a GPS device on the employee’s car should have been suppressed in the Labor Department’s hearing (after which the employee was terminated). The Court of Appeals found that the use of the GPS device did not require a warrant, but the search in this case was unreasonable in scope:

The State of New York, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee’s car. Under People v Weaver (12 NY3d 433 [2009]) and United States v Jones (565 US —, 132 S Ct 945 [2012]), the State’s action was a search within the meaning of the State and Federal Constitutions. We hold that the search did not require a warrant, but that on the facts of this case it was unreasonable. * * *

While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search. We conclude that the State has failed to demonstrate that this search was reasonable. * * *

Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings .. . . Matter of Cunningham v New York State Dept. of Labor,
2013 NY Slip Op 04838 [21 NY3d 515], CtApp 6-27-13

 

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