Tuesday, January 24, 2012

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?
United States v. Jones, Certiorari To The United States Court of Appeals for The District of Columbia Circuit. No. 10–1259

The U.S. Supreme Court has unanimously ruled that “The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”

The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it afixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. The Court rejected the argument advanced by the Government that Jones had no “reason­able expectation of privacy.”

Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, joined. Justices Sotomayor filed a concurring opinion, as did Justice Alito, in which Justices Ginsburg, Breyer, and Kagan joined.

Earlier New York’s highest court, the Court of Appeals, ruled that the warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution [see People v Weaver, 12 NY3d 433,].

The Weaver Court noted that Article 1, §12, of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

The Court of Appeals reasoned that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. 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.”

A number administrative disciplinary actions taken against employees were initiated as a result of information obtained using global positioning equipment installed in the employer’s vehicle or in the employee's employer-issued cell phone.

The decisions in Jones and in Weaver case may have an impact on the future use of such GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

Among the unresolved questions:

1. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications would also serve as a basis for filing a criminal complaint against the employee?

2. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications could not be a basis for filing a criminal complaint against the employee?

For the present, however, the following appears to control with respect to the use of GPS evidence in an administrative disciplinary action.

1. PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining. In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08]

2. In Cunningham v New York State Dept. of Labor, 88 AD3d 1347 the court held that evidence obtained using a global positioning device [GPS] was permitted in administrative disciplinary hearing.

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

The Appellate Division noted that in a case decided after Office of the Inspector General [OIG] had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder 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.”

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth." As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The Appellate Division decided that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the court ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division concluded that neither OIG nor Department of Labor had acted unreasonably.

3. In Halpin v Klein, 62 AD3d 403, the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

The Weaver decision is posted on the Internet at:

The Cunningham decision is posted on the Internet at:

The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm

The Jones decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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