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.
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?
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.
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.