NY: GPS monitoring in the workplace for investigative purposes a “search” and unreasonable

GPS tracking of a state employee in his personal car was unreasonable. Based on O’Connor, a workplace search, which this was, didn’t require a warrant, but it was nonetheless unreasonable. Matter of Cunningham v. New York State Dept. of Labor, 2013 NY Slip Op 04838, 21 N.Y.3d 515, 974 N.Y.S.2d 896, 997 N.E.2d 468, 163 Lab. Cas. (CCH) P61,366 (2013):

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?

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; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings (see Matter of Boyd v Constantine, 81 NY2d 189 [1993]).

The consequence of suppression in this case is not to preclude the State from disciplining petitioner. As the majority and the dissenting Justices in the Appellate Division agreed, only four of the 11 counts on which petitioner was found guilty depended on GPS evidence, and only those four charges need be dismissed. As to the others, the GPS evidence was either substantially duplicated by E-ZPass records or was wholly irrelevant. Whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor on remand.

The future with “electronic cites”: now four citations instead of three. In this case, five.