Do the Police Need a Warrant to Attach a GPS Tracking Device to Your Car? (Updated)
May 11, 2009
Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.
On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept. People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).
In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the Fourth Amendment would not be implicated at all and no warrant would be required.
The trial court and the Appellate Division reasoned that placing the GPS tracking device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.
During the oral arguments in the Weaver case, Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.
My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.
In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.
As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.
Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police. LINK.