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Using a global positioning device to track the location of individuals while at work

Using a global positioning device to track the location of individuals while at work
People v Weaver, 2009 NY Slip Op 03762, Decided on May 12, 2009, Court of Appeals

A number disciplinary actions taken against employees were initiated by, or relied upon, the use of global positioning equipment installed in the employer?s vehicle or in the employer-issued cell phone. See for example, NYPPL summaries at:

http://publicpersonnellaw.blogspot.com/2009/05/employee-found-guilty-of-disciplinary.html

and

http://publicpersonnellaw.blogspot.com/2008/04/global-positioning-system-data-used-as.html

In addition, 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, the Administrative Law Judge dismissed a charge alleging that the County violated the Act 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]

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

The Weaver decision indicates that ?In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.* The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.?

Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries ? one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.

Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court such an action, in this instance, was barred by New York State?s Constitution.

The 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 ruled 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. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
2. The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that ?no search occurred? untenable.

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.?

The Court of Appeals then said that Scott?s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.

This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.

* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03762.htm

Full post as published by New York Public Personnel Law on May 14, 2009 (boomark / email).