by Jacob Portnoff and Adriane Urband
NEW YORK COURT OF APPEALS PEOPLE v WEAVER Decided on May 12, 2009
In People v. Weaver, a state police investigator placed a sophisticated GPS tracking device on the defendant’s van. The GPS was kept there for 65 days, with nonstop monitoring of the van’s movements. This was done without a warrant. In the court records, no reason was given for the decision to monitor the defendant’s movements.
The jury convicted the defendant of two counts in one burglary and acquitted him in the other. An Appellate Division reviewed and upheld the conviction, rejecting the concept of any Fourth Amendment violations, as argued by the defendant’s lawyer(s). However, in a dissenting opinion, one of the Justices also agreed there was no Fourth Amendment violation but similar rights provided by the State Constitution were violated, wherein citizens “have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued on probable cause”. This dissent allowed for appeal, and the New York Court of Appeals reversed.
This decision reveals the history of decisions that have transformed the Courts’ understanding of the Fourth Amendment as applying only to property to that of a protection of privacy. From Olmstead v United States, in which the Supreme Court stuck with the strict interpretation of the Fourth Amendment as only involving infringement affecting property (thereby dismissing wiretapping as a violation), one Justice’s dissent (Brandeis) offered a much broader interpretation of the rights conferred by the Fourth Amendment:
“The protection guaranteed by the Amendments [the Fourth and Fifth] is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment . And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth”
The Olmstead decision was finally overruled in Katz v United States. In United States v Knotts, the Supreme Court decided “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another”. While superficially similar to the circumstances in People v Weaver, the Knotts case involved a very primitive predecessor to the very sophisticated GPS used to track Weaver’s van. It is also pointed out that the police in the Knotts case were tracking one particular container of chloroform, while Weaver’s every movement, destination and deviation from established and recorded patterns of motile behavior were minutely and extremely accurately analyzed by the police, from information obtained by the GPS tracking alone.
Other cases, such as Delaware v Prouse, and Arizona v Gant make it clear that the Court sees a diminished right to privacy while in a moving vehicle is not a complete loss of expectation to privacy. The Court also sees a need to ensure decisions that involve Fourth Amendment rights keep pace with existing and evolving advances in tracking and surveillance technologies.
In response to many concerns with warrantless GPS tracking, the state has relied on previous court cases which show that technological innovations do not themselves constitute a “search” and thus a violation of the Fourth Amendment. In United States v. Lee, the “use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Similarly, the case of Smith v. Maryland showed that a pen register could be used to gather phone numbers because a reasonable person would not expect privacy when inputting numbers into the phone.
While the precision of a GPS is potentially an issue for an unwarranted use by the state, the general perception of privacy has long been held to not exist on the roads. Add the case of California v. Greenwood where there was no reasonable expectation of privacy for trash bags left outside of the private property of an individual. Considering both the use of a pen register (which has a degree of precision above just an observation of a person placing a call) and the restrictions placed on the rights to privacy that the government maintains outside of the home and extensions, the state can and does continue to make extensive use of unwarranted tracking both GPS and otherwise.
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