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By Bill Altreuter

Privacy cases in the US are different from the way they do it in the rest of the world-- here they mostly arise in the context of Fourth Amendment jurispudence, a clumsy tool for the job. In People v. Weaver, a case just handed down by the Court of Appeals, we have an example of how easy it is for an apellate court to get it wrong (although the Court of Appeals ultimately got it right). The defendant contended that the placement of a battery operated GPS device on the undercarriage of his van for 65 days by the State Police as part of a criminal investigation violated his Fourth Amendment rights and the New York State Constitution. The Appellate Division affirmed the conviction (4-1), finding that a person has no reasonable expectation of privacy in the publicly accessible areas of his vehicle, which includes the undercarriage or the location of his vehicle on public streets, and that therefore the use of the GPS device his constitutional rights of privacy. The Court of Appeals reversed (4-3) under the right of privacy guaranteed by the New York State Constitution [article I, §12], granted defendant?s motion to suppress, and remanded for a new trial.

It is apparently an open question as to whether this is a Fourth Amendment violation, which blows my mind.

Full post as published by Outside Counsel on May 20, 2009 (boomark / email).