The right to be let alone
Yesterday, the New York Court of Appeals (equivalent to most states' supreme courts) released People v. Weaver, which held that police cannot place a GPS tracking device on a car without first obtaining a warrant. They based their decision on the N.Y. Constitution's right to privacy, noting that there is no settled law in the federal courts on this issue. (see also Fourth Amendment.com and Simple Justice)
Ordinarily, I don't spend time reading opinions from other states' courts, but this case is very well written (prescient, according to John Wesley Hall) and it tackles an important issue that will appear with more frequency across the country. Greenfield says that every N.Y. criminal defense lawyer should read it - I think that every defense attorney and anyone concerned with privacy rights should read the opinion.
Police placed a GPS tracking device on Weaver's van and monitored his movements for 65 days, without first obtaining a warrant and without providing a reason for the observation to the court. The GPS data was later introduced at Weaver's trial for burglary to show that his van was at the scene of the crime and Weaver was convicted. In holding that this evidence should have been excluded, the N.Y. Court of Appeals gives a brief history of privacy rights and the Fourth Amendment, under the federal and state constitutions:
The Fourth Amendment, read literally, protects property and for a long time was read to do no more. In Olmstead v United States, 277 US 438 (1928), the Supreme Court, adhering to the notion that a Fourth Amendment infringement was essentially one affecting property,* refused to find that a telephone wiretap was a search within the amendment’s meaning because the wiretap involved no trespass into the houses or offices of the defendants.
Later, in Katz v United States, 389 US 347, 357 (1967), the Supreme Court overruled Olmstead, finding that a wiretap on a telephone booth was an unreasonable invasion of the speaker's privacy and was a "search and seizure" that was covered by the Fourth Amendment. The controlling test is not whether there is a physical trespass, it is whether the defendant had a reasonable expectation of privacy that was infringed upon.
Then, in U.S. v Knotts, 460 US 276 (1983), the Supreme Court held that there was no reasonable expectation of privacy in the movements of an automobile on the public highways (in Knotts, the police used a "beeper" to assist in following the defendant's vehicle from one location to another). The N.Y. Court of Appeals in Weaver correctly points out that technology has advanced to the point where the Supreme Court's analysis in Knotts can no longer be applied:
Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.That such a surrogate technological deployment is not -- particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 [1948]) -- compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need
only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons -- to mention just a few of the highly feasible empirical configurations.
The use of increasingly technologically advanced surveillance technology by law enforcement without judicial oversight is an issue that should concern everyone. The cliche response is "if you aren't doing anything wrong, what are you worried about?", and I think that the N.Y. Court of Appeals answered that question concisely in their opinion. Do you really want police, or anyone for that matter, monitoring your every movement via satellite, recording you on video, or sitting outside your home listening to your private conversations with audio enhancement devices?
I would hope that our federal courts would apply the Fourth Amendment in the same manner as the New York court did here, but if they don't the States can and often do interpret their own constitutions as providing greater protection than the federal constitution. Washington and Oregon have also held that warrantless use of similar tracking devices is in violation of their state constitutions.
New York's constitutional provision that the Court decided this case under, although it addresses "unreasonable interception of telephone and telegraph communications," does not have an express right to privacy written into it:
§12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)
South Carolina's Constitution does, however, and our Supreme Court has held that it does provide greater protection to our residents than the federal constitution:
SECTION 10. Searches and seizures; invasions of privacy.The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. (1970 (56) 2684; 1971 (57) 315.)
As Justice Brandeis stated in his dissent in Olmstead:
[The Founders] 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.
