Placing portable GPS device under defendant’s car to monitor his movements violated no expectation of privacy

Placing a GPS device under defendant’s car to trace its movements to connect him to a burglary did not violate his expectation of privacy. The N.Y. Constitution affords no additional rights in this regard. People v. Weaver, 2008 NY Slip Op 4960, 52 A.D.3d 138, 860 N.Y.S.2d 223 (3d Dept. 2008):

In addressing this issue, we are guided by the well-settled principle that “where there is no legitimate expectation of privacy, there is no search or seizure” under the Fourth Amendment (United States v Moran, 349 F Supp 2d 425, 467 [2005]). As the federal courts have observed, a defendant has no reasonable expectation of privacy in the publicly accessible exterior of his or her vehicle, and the undercarriage is part of the vehicle’s exterior (see New York v Class, 475 U.S. 106, 112-114 [1986]; United States v Rascon-Ortiz, 994 F2d 749, 754 [10th Cir 1993]; see also People v Jackson, 143 AD2d 471, 472 [1988]). Nor can a defendant expect privacy as to the location of his or her vehicle on public streets (see United States v Knotts, 460 U.S. 276, 281-282 [1983]; People v Edney, 201 AD2d 498, 499 [1994], lv denied 83 NY2d 910 [1994]). Thus, it has been held that collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle’s undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment (see United States v Knotts, 460 U.S. at 281-282; United States v McIver, 186 F3d 1119, 1126-1127 [9th Cir 1999], cert denied 528 U.S. 1177 [2000]; United States v Coulombe, ___ F Supp 2d ___, ___, 2007 WL 4192005, *4 [ND NY 2007]; United States v Moran, 349 F Supp 2d at 467). Moreover, nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public (see United States v Knotts, 460 U.S. at 282, 284). Inasmuch as constant visual surveillance by police officers of defendant’s vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections (see People v Wemette, 285 AD2d 729, 729-730 [2001], lv denied 97 NY2d 689; People v Edney, 201 AD2d at 499).

Anonymous tip ordinarily would not be enough for a parole search, but, here, coupled with defendant’s recidivist history and the officer’s knowledge of parole violations for drug use, it was enough. People v. Burry, 2008 NY Slip Op 4956, 52 A.D.3d 856, 859 N.Y.S.2d 499 (3d Dept. 2008):

The tip received by Johnson here was very specific with regard to the location of the drugs. Thus, the tip provided predictive information of illegal activity. This, coupled with Johnson’s knowledge of defendant’s recidivist history, previous parole violation and illegal drug use, possession and sales, was sufficient to provide the requisite individualized reasonable suspicion to support the search of defendant’s home and the seizure of the drugs and related items found there (see Florida v J.L., 529 U.S. at 270-271; United States v Muhammad, 463 F3d at 121; People v Huntley, 43 NY2d at 181-182). We, therefore, find that defendant’s motion to suppress that evidence was properly denied.