In its recent 4-3 decision in Cunningham v. New York State Department of Labor, the New York Court of Appeals added to the growing body of case law addressing the constitutional implications of global positioning system (GPS) technology. In Cunningham, the Court found that the Department of Labor’s attaching of a GPS device to an employee’s personal car that was used for work purposes fell within the “workplace exception” to the warrant requirement, however, the search as conducted was unreasonable because the car’s location was tracked in the evenings, on weekends, and while the employee was on vacation. Interestingly, the Court suppressed all of the evidence collected by the GPS device, not just the data collected during non-work hours, citing the “extraordinary capacity” of GPS devices to permit “constant, relentless tracking of anything.”
Cunningham became a State employee in 1980, and in 1989, he was appointed to the position of Director of Staff and Organizational Development of the State Department of Labor. In 2008, the Department of Labor began an investigation because it suspected that Cunningham was absent from work without authorization and falsifying records to conceal his absences. After an initial investigation resulted in a two-month suspension, the Department of Labor referred the case to the Office of the State Inspector General. A GPS device was attached to Cunningham’s car, without his knowledge, while it was parked near the Department of Labor’s offices and kept there for one month. The information obtained from the GPS device showed that Cunningham’s actual arrival at and departure from his office differed from the hours he claimed on his time sheets. Based, in part, on this information, Cunningham’s employment was terminated. Cunningham appealed to the Appellate Division, which affirmed.
Citing its own opinion in People v. Weaver and the United States Supreme Court’s decision in United States v. Jones, the Court of Appeals began its analysis by finding that the placing of the GPS device on Cunningham’s personal car constituted a “search” within the meaning of Article I, Section 12 of the New York Constitution and the Fourth Amendment of the U.S. Constitution. However, the Court of Appeals found that a warrant was not required because Cunningham used his personal car for work purposes and, thus, the car was “part of the workplace.” In reaching this conclusion, the Court analogized a personal car used for work purposes to “a personal photograph on an employee’s desk, or a personal letter posted on an employee bulletin board.” The Court suggested, however, that a GPS device “attached to an employee’s shoe or purse” would not fall within the workplace exception because “[p]eople have a greater expectation of privacy in the location of their bodies, and the clothing and accessories that accompany their bodies, than in the location of their cars.” The Court concluded that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search,” and, therefore, the Inspector General did not violate either the New York or Federal Constitution by failing to seek a warrant before attaching the GPS device to Cunningham’s car.
Nevertheless, the Court found that the search was constitutionally deficient because it was “excessively intrusive” and, therefore, unreasonable in scope. Due to the fact that the device tracked Cunningham “on all evenings, on all weekends and on vacation,” the search “examined much activity with which the State had no legitimate concern.” The Court noted that although it might be “impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity,” it “surely . . . would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month.” Importantly, the Court found that while the general rule is that “when a search has exceeded its permissible scope, the suppression of items found during the permissible portion of the search is not required,” this rule is “inapplicable to GPS searches like the present one” because of the “extraordinary capacity of a GPS device to permit ‘[c]onstant, relentless tracking of anything’” (quoting Weaver). The Court concluded, “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.”
The Court’s opinion in Cunningham is significant because it affirms that a public employer may place a GPS tracking device on an employee’s personal car if that car is used for work purposes. However, the Court’s opinion makes very clear that the employer must take steps to ensure that data is collected only during work hours. It remains to be seen how exactly this can be accomplished. Cunningham stands as yet another example of a court grappling with a novel constitutional issue presented by advances in technology.