NY’s Highest Court Approves ‘Reasonable’ GPS Tracking Without Probable Cause In Disciplinary Cases

Michael Cunningham was the Director of Staff and Organizational Development of the New York State Department of Labor. In 2008, the Department began an investigation into Cunningham’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because, after Cunningham eluded an investigator who was following his car, the Department referred Cunningham’s conduct to the Office of the State Inspector General.

The first step in the Inspector General’s investigation was to attach a GPS device to Cunningham’s car, without Cunningham’s knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car’s movements for a month, including evenings, weekends and several days when Cunningham was on vacation in Massachusetts. Later, the Inspector General pursued other avenues of investigation: Surveillance of an apartment building Cunningham was suspected of visiting during working hours, subpoenas for E-ZPass records, and interviews of Cunningham and his secretary.

The Department eventually fired Cunningham, basing its decision in part on the GPS information. Cunningham appealed his discharge to the New York Court of Appeals, the highest court in the New York court system.

The Court found that the Department did not need a warrant or probable cause to attach the GPS device.

Cunningham argued that what is known as the “workplace exception” to the Fourth Amendment’s warrant requirements – an exception under which desks and lockers can be searched without a warrant if there is no expectation of employee privacy – did not apply because the object of the search was Cunningham’s personal car. Cunningham asked the Court to confine the exception to the workplace itself, or workplace-issued property that can be seen as an extension of the workplace. The Court rejected the suggestion “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.

“The location of a personal car used by the employee during working hours does not seem to us more private than what is on an employee’s desk. Cunningham was required to report his arrival and departure times to his employer; this surely diminished any expectation he might have had that the location of his car during the hours he claimed to be at work was no one’s concern but his. People have a greater expectation of privacy in the location of their bodies, and the clothing and accessories that accompany their bodies, than in the location of their cars.”

While the Court found that the GPS device did not require a warrant, it did find that the Department failed to prove that the use of the device was reasonable. The Court held that the use of the GPS device was “excessively intrusive. It examined much activity with which the State had no legitimate concern – i.e., it tracked Cunningham on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, 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, 24-hour surveillance for a full month. The State managed to remove a GPS device from Cunningham’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, Cunningham was about to start his annual vacation?

“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 requires suppression of the GPS evidence here.”

The Court ended up returning the case to the lower court to determine whether the charges untainted by the GPS evidence supported Cunningham’s termination.

Cunningham v. New York State Department of Labor, 2013 WL 3213347 (N.Y. 2013).