Tuesday, May 12, 2009

Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause

The New York Court of Appeals today ruled that the government must have some legal justification before it can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Specifically, New York's high court required the constitutional justification customarily required for a search--i.e., a warrant based upon probable cause. Additionally, because the status of Supreme Court jurisprudence is unclear on such matters, NYCOA decided the case as a matter of independent state constitutional protection.

In the case decided this morning, People v. Weaver, the police had attached a GPS device to the defendant's bumper, and then tracked his movements nonstop for 65 days. The police did so without his knowledge, without a warrant, without probable cause (i.e., reasonable grounds to believe that he was engaged in criminal activity), and apparently without any justifiable reason--at least, as admitted explicitly at oral argument before the court, no reason that would amount to probable cause and would suffice to obtain a warrant. Indeed, it was difficult to understand, even after persistent questioning by the Judges at oral argument, why the police did place the device on this particular person's car, and why they monitored this particular person for 65 days.

Of course, there must certainly have been some reason. But it was either much too weak or, perhaps, it was something that could not be mentioned in the courtroom. Whatever the case, the prosecution made clear to the court that the police had no reason that even arguably amounted to some constitutional justification for a search.

Instead, the prosecution was left to argue the nonsense that the federal Supreme Court has been spewing for almost 3 decades now. That is, that all kinds of searches are not "searches" for the purpose of the constitutional protection against "unreasonable searches." Since the police conduct is not a "search", then it does not matter how unreasonable it is. It's simply not covered by the constitutional protection.

Hence, according to the current Supreme Court, searching one's private property is not a search (as long as not within peeping distance of the home); searching one's garbage, ditto; searching one's backyard by hovering above in a helicopter, ditto; searching one's clothing for contraband with a trained police dog, ditto; etc., etc., etc. Including, searching for one's whereabouts by means of a GPS device--not a "search".

How could the Supreme Court speak such nonsense? The Justices aren't insane or complete frauds, are they? Well, no. Just too wrapped up in mechanically applying language from past cases, losing themselves in rigid legalisms, and, let's just be honest, trying to avoid having to exclude incriminating evidence that was obtained through very questionable searches.

So a little fudging here and there, and voila!! The entirely unjustified, unreasonable search is not a "search" at all.

(I've discussed this previously--and perhaps now
ad nauseam. See Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009; and Notable Miscellany: Iowa/Marriage, New York/Surveillance, and the Supremes/Discrimination (Part 2 - IA & NY [and the Supremes]), April 8, 2009)

NYCOA didn't buy into that this-search-is-not-a-"search" nonsense in today's decision. As it has done in the past with, e.g., searching private land (People v. Scott), canine sniffs (People v. Dunn), searching auto parts shops (People v. Keta), reaching into someone's car and moving items on the dashboard (People v. Class), NYCOA recognized the 65 day surreptitious electronic surveillance to be a search requiring some justification--despite the Supreme Court's decisions to the contrary.

A couple of final notes. Two matters of particular significance. First, the state's new Chief Judge, Jonathan Lippman (appointed in January by Governor Paterson) carried the day. This was his first big test. He got 4 votes and, thus, the majority. He did so by carrying the votes of the 2 other Democratic-Governor appointed liberals, Carmen Ciparick (Cuomo) and Theodore Jones (Spitzer). And 1 Republican-Governor appointee, moderate conservative Eugene Pigott (Pataki).

(In dissent, not surprisingly, were Susan Read and Victoria Graffeo (both Pataki) whose voting records are very strongly pro-prosecution. The 3d dissenter was Robert Smith (also Pataki). He was a bit more of a surprise. His record in criminal cases is very moderate, and his questions at oral argument evinced great discomfort with what the police did in this case. Indeed, he did not cconceal his discomfort in his dissenting opinion.
And I should add that although I unconditionally favor the result reached by Lippman's majority, the two dissenting opinions--Smith's and Read's--were very well done. So 3 pretty strong opinions. No hysteria, no nonsense. Just clear elucidation of the differences that divided the Judges.)

Second, it has been a long time since the Court of Appeals has rendered such a decision. I.e., an independent state constitutional decision, charting its own course for what makes sense for the protection of basic constitutional rights in New York. A decision untied to how the Supreme Court might rule in this case. A decision in which NYCOA exercised its role as the highest court of New York State, defining the fundamental law of New York, enforcing the fundamental liberties of the people of New York, and placing restraints on governmental intrusions in this state. That, as opposed to behaving like a lower court in the federal system.

The last time NYCOA issued such a decision was in 1992, in the companion cases of People v. Scott (searching private lands IS a "search") and People v. Keta (inspecting an auto parts business for stolen goods IS a "search"). Both of those were 4-3.

Unlike today's decision in Weaver, however, the majority opinions in Scott and Keta were met with an hysteria-filled, accusation-laden dissenting opinion. The majority was charged with Articles of Confederation separatism for daring to render independent state constitutional decisions, as well as with unprincipled result-oriented decision-making. The majority opinions of Judges Stewart Hancock (Scott) and Vito Titone (Keta) were joined by then-Judge Judith Kaye's concurring opinion. She felt it necessary--and apparently it was then--to explain to the dissent both the actual nature of judging (exercising human judgment) and the legitimacy and responsibility of state courts to exercise independent judgment in applying the state's own law, including its constitution.

There was no such hysteria or accusations in today's dissenting opinions. Nor any need for a separate concurring opinion to give an elementary course in the judicial process. The dissenting opinions were vigorously argued, but thoughtful and strong--both on the basis of search and seizure precedent and on the proper role of the judiciary in a tripartite government. This was a good day for the Court of Appeals. Well done, on both sides.

And particularly well done, in my own humble view, because the court got it right. If the government wants to track someone's movements with an electronic device secretly attached to his vehicle, the government needs a reason, and it needs to get a warrant--at least in New York.

(BTW, as noted in the March 24th posting on Weaver, the Supreme Courts of Oregon (State v. Campbell, 1988) and Washington (State v. Jackson, 2003) have previously reached the same rather unremarkable decision that GPS tracking IS a "search" requiring justification under their state constitutions.)