Police Used GPS Illegally, Court Rules

Interesting, New York says UNCONSTITUTIONAL but in WIsconsin its CONSTITUTIONAL, is the U.S. Supreme court in the futre for this issue?

5-13-2009 New York:

In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect’s rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant.

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

In three written opinions, the judges debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies.

In the early morning on Dec. 21, 2005, a State Police investigator crawled under Mr. Weaver’s van, parked on the street, and placed a GPS tracking device, known as a Q-ball, inside the bumper. It remained in place for 65 days, constantly monitoring the location of the van.

It was not clear why Mr. Weaver, of Watervliet, N.Y., was placed under electronic surveillance, but he was eventually tried for two burglaries — one in July 2005 at the Latham Meat Market; the other in December 2005 at a Kmart in the same hamlet in Albany County.

A jury convicted Mr. Weaver of two counts relating to the burglary of the Kmart but acquitted him of the counts pertaining to the meat market burglary. (GPS evidence had only showed that Mr. Weaver’s van crossed the parking lot of the Kmart hours before the burglary; he was never spotted behind the wheel, and was convicted in part on the testimony of a witness who said that Mr. Weaver, now 41, had used the van to scout out the Kmart before going back to commit the crime.)

Writing for the majority, Chief Judge Jonathan Lippman cited a 1983 United States Supreme Court case in which government agents had placed a beeper in a five-gallon drum of chloroform to track the container’s movements. The beeper was used to help the agents keep visual track of the vehicle carrying the container. In that case, the court found that the driver of the vehicle had no reasonable expectation of privacy since the van’s movements were visible for all to see.

The judge also raised the specter of a GPS being used to penetrate every part of a person’s private life.

The judge added that the ruling had no bearing on federal cases, because the United States Supreme Court has not ruled upon whether the use of a GPS by the state in criminal investigations constitutes a search under the Fourth Amendment, and most federal appellate courts have not addressed the issue.

“In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone,” Judge Lippman wrote, citing similar decisions in Washington State and Oregon. He was joined by Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones.

In a dissenting opinion, Judge Robert S. Smith acknowledged the newness and greater efficiency of GPS devices but defended the legitimacy of the search. ..News Source.. by SEWELL CHAN