Does the Government Need A Warrant to Attach A GPS Device to A Government Employee’s Car To Monitor Workplace Misconduct?

Today the New York Court of Appeals (the state’s highest court) addressed a novel Fourth Amendment question in Cunninghman v. Department of Labor: If the state suspects that a government employee is submitting false time reports, can it attach a GPS device to the employee’s private car without a warrant in order to track the location of the car to find out when the employee is actually at work?

In an opinion by Judge Smith, the Court concludes that the state can do that in some cases but not in others. Specifically, the government needs suspicion that the employee is engaged in misconduct, and it cannot monitor the location of the car for too long beyond workplace hours. The Court reaches that result by first concluding that the relaxed government workplace rules of O’Connor v. Ortega, 480 U.S. 709 (1987), apply to GPS surveillance of a private car used during workplace hours “to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.” Ortega requires a general reasonableness balancing: A search of a government workplace must be justified at its inception and justified in its scope. The Court rules that the GPS monitoring in this case was not justified in its scope because it monitored him for too long outside of workplace hours. From the opinion:

We cannot find, however, that this search was reasonable in its scope. It was, in the words of the T.L.O. Court quoted in O’Connor, “excessively intrusive.” It examined much activity with which the State had no legitimate concern — i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity — especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month. The State managed to remove a GPS device from petitioner’s car three times when it suited the State’s convenience to do so — twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?

The Court next concludes that all of the GPS evidence has to be suppressed:

It is true that none of the evidence used against petitioner in this case resulted from surveillance outside of business hours. Ordinarily, when a search has exceeded its permissible scope, the suppression of items found during the permissible portion of the search is not required (see United States v Martell, 654 F2d 1356, 1361 [9th Cir 1981] [excessive length of detention did not taint search where nothing new was learned “during the unlawful portion” of the detention]; United States v Clark, 891 F2d 501, 505 [4th Cir 1989] [same]). But we hold that rule to be inapplicable to GPS searches like the present one, in light of the extraordinary capacity of a GPS device to permit “[c]onstant, relentless tracking of anything” (Weaver, 12 NY3d at 441). Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here[.]

Judge Abdus-Salaam concurred on the ground that the Ortega balancing should not apply to the use of a GPS device on a car.

I think the majority’s opinion is puzzling in a few different ways. First, I agree with Judge Abdus-Salaam that Ortega balancing should not apply. Ortega was about searches at the workplace, not searches about work. Ortega doesn’t provide the government with a right to search a government employee’s private car outside of the office and off government property. See Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990) (holding that Ortega does not apply to a search of a government employee’s cars and garage for evidence of workplace misconduct). That doesn’t mean a warrant is necessarily required — for example, I think the automobile exception may properly apply to GPS surveillance — but I don’t think it’s an Ortega issue.

Second, if you’re going to apply Ortega balancing, I’m not sure the Court chose the right way to do it. Under the majority opinion in Jones, it’s the one-time installation of the device that is the search rather than the subsequent use. The New York court instead focuses on the subsequent use, treating the search not as the installation but rather the use over time. That seems like a switch that should at least be explained. (I realize there is also the Weaver case under the NY Constitution, but the Court seems to be reaching this analysis by applying the federal Fourth Amendment standard.)

Finally, I’m not sure why the GPS monitoring is treated as one whole search over time for purposes of the exclusionary rule. The Court says it must do that because GPS devices permit lots of tracking, but it would have been helpful for the court to connect the dots more carefully to explain why that supports its position. Perhaps the Court is just thinking that a contrary rule would create bad incentives, in that it would allow the state to be lazy, overcollect, and just admit the part about workplace misconduct at trial? Or perhaps the Court is realizing that regulating searches over time creates lots of headaches on the remedy, along the lines I discussed in this article (p.340-33), necessitating a bright-line rule? Either way, it would have been helpful for the Court to explain more about what it was thinking. There are a lot of complex moves needed to get to the Court’s result, and the Court skips over a lot in this very brief decision.

Hat tip: FourthAmendment.com