[Mr. LaValley, a 2002 summa cum laude graduate of Albany Law School and Editor-in-Chief of the Law Review, was a law clerk for Judge Roger Miner of the U.S. 2d Circuit Court of Appeals and is currently an associate at Boies, Schiller & Flexner. He participated in my criminal procedure class last week watching a video of the Weaver oral arguments.]
“If Jefferson or Lincoln—or even Theodore Roosevelt—came back to life, he would hardly recognize the American government.” Lawrence M. Friedman, Total Justice (1994).
In the context of considering and commenting on the recent oral arguments before the N.Y. Court of Appeals in the case People v. Weaver (argued Mar. 24, 2009), the above quote seems to me, in many ways, both relevant and ironic. First, and most obviously, none of the illustrious figures invoked by Prof. Friedman from the dustier pages of our nation’s history would have a clue regarding the uses or meanings of sophisticated technologies utilizing—or, perhaps more accurately, optimizing the utility of—Global Positioning System (“GPS”) satellites, such as the tracking device and computer-monitoring systems at issue in Weaver.
On the other hand, with a bit of technical briefing, these same, savvy individuals might well have grasped the implications of the police having such technologies—especially in a scenario in which the police had free rein to use them in an on-going, open-ended campaign to gather real-time information about the whereabouts of citizens—and certainly if, in that same scenario, the police were left to their own devices (so to speak), untroubled by the potential “wet blanket” of any degree of judicial oversight whatsoever. And herein, I think, lies the deeper irony—as it is the actualization of this very state of affairs that would have proven hardly imaginable, let alone “recognizable,” to these luminaries, despite their having been, to a man, not only visionaries but geniuses, well-versed in the excesses of both human nature and governments.
The reason such a scenario would, I think, have been quite surprising, perhaps even shocking, to these historical figures is twofold. First, American citizens, and perhaps all citizens of modern Western democratic bureaucracies, are routinely, even blithely, subjected to a degree of government oversight, observation, and, in many capacities, intrusion into their lives and affairs that, even a few decades ago, would have seemed like an Orwellian nightmare (and, a couple of centuries ago, would in all likelihood have sparked an armed revolt).
Such a degree of surveillance and monitoring of the average citizenry (let alone those individuals who are “on the government’s radar,” yet not quite officially suspected of a crime or targeted by the government in connection with an investigation) would almost certainly have shocked the typical American citizen of the Eighteenth or Nineteenth Century (assuming, of course, that he or she was not a member of one of the many disenfranchised and/or marginalized groups of those eras, who, one must suppose, were pretty much beyond being “shocked” by the acts and/or omissions of “their” American government).
But probably even more surprising would have been the mere fact that people today, at least en masse, are extremely tolerant of—if hardly “comfortable” with—a vast array of such governmental intrusions, occurring regularly, if not constantly, in virtually every sphere of public life, and even in a many private contexts.
All of which brings us to People v. Weaver—as it is only against this constant, ubiquitous background hum of routine government monitoring and observation, with occasional “spikes” in the level of intrusion (the shoeless indignity of modern commercial air travel being but one obvious example), which is endemic to our modern world, that a reasonable person could possibly deem the degree of monitoring and surveillance at issue in People v. Weaver as constituting anything like “normal” or “routine” government surveillance of a person whom the police had neither probable cause nor reasonable suspicion to believe had committed a crime.
Indeed, it is in this vein that many of the Judges’ questions are most revealing. Several times, for example, it is suggested by certain of the Judges (as a sort of “baseline” of legality) that the police could have simply “followed” or surveilled the Appellant, Weaver, for the same length of time (60 days!) via non-automated means, done so without a warrant (and, again, without any probably cause or reasonable suspicion, as those terms are understood in the context of New York and Federal Constitutional law), and—here’s the kicker—that such a sustained tracking campaign would have been perfectly lawful and, indeed, unexceptional conduct on the part of the police. Notably, even the defense counsel did not seriously contend in the oral arguments that such a scenario would offend either federal- or state-constitutional principles of jurisprudence.
And yet, certainly, from the perspective of the historical figures invoked by Prof. Friedman, this hypothetical scenario would hardly fit within any reasonably conceived set of “traditional values.” (Indeed, to this commentator, it seems more like something out of a Kafka novel, or a scene from a film set in the Soviet Union during the height of the Cold War.)
In Total Justice, Lawrence Friedman, while concerned with many aspects of our distinctly American system of dispute resolution through litigation, primarily focused on the civil context. Nonetheless, his basic formulation of the essential framework of law is highly relevant in the criminal realm as well, and bears repeating in the context of People v. Weaver.
Generally, according to Friedman: “Law is not merely rules and regulations that are imposed by government on passive subjects. The legal system is, first of all, a system of interactions and processes, both internal and external.” (Lawrence M. Friedman, Total Justice (1994) at 13.) More particularly, Friedman used “the term legal act to refer to relevant behavior by people with authority who act inside the legal system.” (Id. at 13 & n.15; see also Lawrence M. Friedman, The Legal System: A Social Science Perspective (1975) at 4.)
Every time a police officer stops traffic, or issues a ticket, or arrests a burglar, he or she has committed a legal act. The same is true every time a clerk in city hall issues a marriage, dog, or hunting license. The total number of legal acts is therefore impossible to measure. But it seems obvious that there must be many more today than even a generation ago. The number of (potential) legal actors is also very great. Millions are on public payrolls. Big legal acts (major statutes or decisions) breed middle-sized legal acts (rules and regulations by agencies), which in turn generate dozens of small legal acts (the behavior of officials, police officers, and civil servants). (Total Justice 13–14 [emphasis added].)
It is precisely this “trickle down” of law and the concomitant geometric accretion-in-kind and acceleration-in-frequency of the universe consisting of all “legal acts”—large and small, occurring every day—that forms the backdrop against which the conduct of the government in People v. Weaver must be evaluated.
Like it or not, we live in a world in which police officers have the technological prowess to attach a small, inexpensive GPS device to 10 or 50 or 500 vehicles at a time, and then monitor, record, and subject to sophisticated analyses—in real time, “24/7”—the comings and goings of each and every one of those vehicles, all from a single computer workstation. Indeed, as was made clear in the oral arguments in People v. Weaver, a lone police officer could conduct such a comprehensive campaign of surveillance from a single laptop computer, without ever leaving his or her living room.
But despite that the technological capabilities exist to create such efficiencies in police activity (which, it should be conceded, in many contexts could result in an enormous boon to the public), the basic activity involved—the observation, monitoring, and recording of the locations and activities of a subject or subjects of police surveillance—is certainly a legal act. And this is equally true whether such activities are implemented via cutting-edge methods, involving computers and satellites, or “the old-fashioned way,” by wearing out tires and shoe leather.
After listening to the oral arguments in People v. Weaver, one could reasonably conclude that most if not all of the Judges, as well as the attorneys for the both prosecution and the defense, implicitly either overlook or reject this basic reality. That is, the questions and answers appeared to reflect an implicit assumption on the part of the Judges and the attorneys, for both sides, that acts of “routine” police surveillance (that is, presumably, including “traditional” methods and excluding “sneaky” technological methods, such as the surreptitious GPS tracking at issue in the case)—no matter how sweeping in scope or duration—somehow fall outside the universe consisting of “legal acts” or, at a minimum, are so low on the ladder of such acts that they constitute little more than “ministerial” conduct. From this perspective, apparently, such “routine” (i.e., non-technological and/or non-surreptitious and/or non-constant) surveillance requires neither prior approval nor contemporaneous oversight outside of whatever controls may exist within the police “chain of command.”
At bottom, however, absolutely no legal theory, principle, or rule was raised during the oral arguments in People v. Weaver, nor cited in the decisional history of the case, to support such a radical redrawing of the lines of our legal system. (See generally People v. Weaver, 860 N.Y.S.2d 223 (A.D. 3d Dep’t 2008); see also id. at 227 [Stein, J., dissenting].) Indeed, because the basic conduct in question is a legal act it must be firmly situated within the overall context of our system of laws. And it should be recognized explicitly, by the courts as well as future litigants in this arena, that all such legal acts—regardless of the nature or extent of the technology or technological sophistication involved, or the degree of efficiency with which the surveillance in question may be conducted—are alike in this regard and, thus, in requiring some appropriate level of judicial oversight.