Posted on 06/08/2008 9:15:08 PM PDT by BloodOrFreedom
The warrantless use of a global positioning device on a vehicle by police does not violate a driver's right to privacy under either the U.S. Constitution or the New York state Constitution, an upstate appeals panel decided last week.
In becoming what it said was the first state appeals court in New York to address the issue, the Appellate Division, 3rd Department, panel determined that the privacy expectations of individuals under both the federal and state constitutions are lower when they are in their automobiles than when they are in their homes.
"Because we recognize the diminished expectation of privacy in a vehicle on a public roadway ... we cannot agree that the NY 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," a 4-1 panel held in People v. Weaver, 101104.
As to the Fourth Amendment of the U.S. Constitution, the panel found that nothing prevents the use of technology, such as the satellite-aided positioning devices, to "surveil that which is already public."
"Inasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information [as the GPS device] 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," Justice Robert S. Rose wrote for the majority.
The dissenter, Justice Leslie E. Stein, argued that global positioning system devices are considerably more intrusive than traditional surveillance methods.
"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," Stein wrote.
She conceded that an analysis of federal law dictates the majority's conclusion that the defendant's privacy rights under the Fourth Amendment to the U.S. Constitution were not violated. But she noted that the state Court of Appeals has a long tradition of holding that the state constitution affords New Yorkers broader rights than federal courts have recognized for Americans under the federal Constitution.
Stein wrote that she would find the use of the GPS device on Scott C. Weaver's vehicle was an unreasonable search and seizure under Article I, §12 of the state constitution.
"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," Stein wrote. "In my opinion, that point has been reached in the facts before us."
Weaver, of Watervliet in Albany County, was the suspect in a series of burglaries. A police officer who did not have a warrant put a battery-operated GPS device under the bumper of Weaver's van.
Weaver and a co-defendant were later arrested based on data retrieved from the device and convicted of burglarizing a suburban Albany Kmart on Christmas Eve 2005.
Albany County Court Judge Thomas A. Breslin denied Weaver's motion to suppress the evidence obtained from the device.
The 3rd Department's majority noted in its ruling that the GPS device was not wired into the electrical system of Weaver's van, was not placed in the interior of the vehicle and did not record the vehicle's movements on private property. All three of those factors have been cited by federal courts that have considered police use of GPS devices as requiring authorities to obtain a warrant.
The majority noted that it found rulings by two trial courts in New York on the surreptitious placement of GPS devices on vehicles. In People v. Gant, 9 Misc 3d 611 (2005), Westchester County Court found that no warrant was necessary. In People v. Lacey, 3 Misc 3d 1103(A) (2004), Nassau County Court found that a warrant was needed.
Weaver, who was sentenced to two to seven years in prison, has been free on bail pending his appeal. His attorney, Trey Smith of Smith Hernandez in Troy, said he intends to appeal the appellate court ruling to the Court of Appeals.
Smith said his appeal before the 3rd Department largely concerned the testimony against Weaver of his co-defendant's girlfriend. Smith argued unsuccessfully that the woman was an accomplice of the two men in the robberies and should have been identified as such in Acting Supreme Court Justice Dan Lamont's instructions to the jury.
"That being said, I understood at the time when I raised the [GPS] issue the importance that this could have both for law enforcement and the freedom-loving citizens of the state," Smith said in an interview Friday. "I feel that the way this decision will work out, if it is permitted to stand, it will create a super-class of citizen, basically a police citizen, who has the right to engage in stalking behavior without cause."
Christopher D. Horn, special counsel to Albany County District Attorney P. David Soares, argued for the prosecution on the appeal. A spokeswoman for Soares did not return a call for comment Friday.
This is not good!
It's going to be a Brave, New World.
Technology enables us to travel the world in hours. Technology enables us to communicate instantly with virtually anyone at anytime from almost any place. Technology enables us to move money electronically and without a paper trail.
The convenience of this technology assures that it will be routinely used by everybody.
This same technology permits a level of surveillance, now without probable cause, that requires virtually no manpower and that our Founders never could have imagined.
I am confident that our freedom cannot withstand this threat.
So, essentially one has to buy their way out from being under surveillance.
Essentially, this is justified by the Patriot Act, which, I can see the merits for, however, am unconvinced at the ability of the government to retain it solely for C.T. This situation proves that when given the opportunity to usurp power and abridge freedoms, the government can and will.
Thanks for posting.
Very scary. The government can track all of us every minute of every day as long as they can come up with the money to “tag” us with a GPS device.
The libs were headed that already by proposing to track every vehicle to determine our “mileage tax”. This is even worse.
Brave new world indeed.
One fuse pull and the car’s factory GPS went bye bye.
If you are really worried about this, you should check your cell phones, most are equipped with GPS.
Is an individual expected, then, to give up their rights when they step out of their front doors?
That is why the 4th amendment was created: To protect the people from unreasonable search and seizure. In my mind, the government has no need to know where I am. And if they did, I certainly would not keep a cell phone or GPS-equipped device that I knew could be tracked.
Just wait until Eric (We don’t need a court order) Holder is the AG and has the grossly misnamed Patriot Act in his pocket. and the revised FISA act. The Bill of Rights will be extinct.
###
“Elian Gonzalez was abducted at gunpoint by a Border Patrol swat team and INS agent Mary A Rodriguez without a court order, arrest warrant, or any lawful authority for the abduction. Using Gestapo tactics, the feds blatantly and unlawfully took what they wanted.
On Saturday, April 22, Eric Holder, second in command under Reno, had the following to say:
Saturday April 22, 2000
Legal Analysts Comment on Raid
NEWSMAX.COM - Andrew Napolitano, legal analyst for Fox News and a constitutional scholar had this exchange today on Fox with Eric Holder, Reno’s second in command at Justice:
Napolitano: Tell me, Mr. Holder, why did you not get a court order authorizing you to go in and get the boy?
Holder: Because we didn’t need a court order. INS can do this on its own.
Napolitano: You know that a court order would have given you the cloak of respectability to have seized the boy.
Holder: We didn’t need an order.
Napolitano: Then why did you ask the 11th Circuit Court of Appeals for such an order if you didn’t need one?
Holder: [Silence]
Napolitano: The fact is, for the first time in history you have taken a child from his residence at gunpoint to enforce your custody position, even though you did not have an order authorizing it.”
———————————————————————————————————————— “So, as of the day of the abduction, the second in command under Reno publicly stated that they needed no court order because INS had the authority to make the abduction “on its own.” Then somebody (Clinton? Reno?) realized that there was in fact no lawful authority for the abduction and quickly had Judge Robert L. Dube backdate a search warrant.” ————————————————————————————————————————
Reno and Clinton tried to get the “Patriot” Act powers after OKC, but thankfully the Republicans kept it from passing. Then they caved in when Bush asked for it and the greatly expanded version later.
Holder will not need backdated warrants when he’s AG.
The 4th Amendment -- is that anything like the 1st Amendment, you know, the one that fully protects nude dancers at all times but restricts political speech in advance of elections?
Thank you very much, Mr. presidential candidate John McCain.
But I'll give McCain this: Things could wind up FAR worse under another D candidate ...
Not if it's in flash...
There is no constitutional right while in public to NOT be tracked by govt law enforcement. If you are out in the open you can’t really claim nobody is permitted to see you.
Think of the helicopter tracking Henry Hill in “Goodlfellas”. GPS is a different technique but the same principle.
Fear not..CHANGE is COMING!!!
Don’t forget to read my tagline.
I'm not sure I agree with this statement, but I do believe this judge is at least basing his decision on a legitimate point.
I say we buy a few of these and place them on AG , Mayoral and police chief vehicles ... lets see how they react..
*****************************************************
REAL TIME GPS VEHICLE TRACKING from
GPS-on-Track™
for when you need to find your vehicle RIGHT NOW!
http://www.gpsonsale.com/vehicletrackingdevices/index.htm
How can the court know that the GPS was actually on Weaver's car during the period in question? Someone/anyone could have found & moved the GPS, then returned it to Weaver's car.
And how can a GPS avoid recording the car's movements while on private property? Isn't the Kmart parking lot private property?
It wont be long before that annoying gnat buzzing around you is really a surveillance device. With your parents, spouse, boss, & local/state/fed bureaucrats all keeping tabs on you, the buzz around you will be deafening. We are gonna need a lot more "bug" spray!
Well, police can’t enter your private property without a warrant, but if they see something “in plain view” inside your window, that’s another matter. Putting a GPS in someone’s car, because there could have been cops tailing the car instead, is like having cameras installed looking into someone’s house from every angle, making anything within your house that can see public property through a window, subject to a so-called “plain view” search.
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