In New York, Public Employers Investigating Employee Misconduct Can Do “Reasonable” GPS Tracking of Vehicles Without a Warrant

Cunningham v. New York State Department of Labor, 2013 N.Y. LEXIS 1729 (N.Y.; June 27, 2013)

The plaintiff in this case, an employee of the New York State Department of Labor, was suspected of engaging in personal activities during work time and falsifying his time records to conceal it. Wishing to collect evidence for a disciplinary proceeding, the state attached a GPS device to the plaintiff’s personal automobile without his knowledge, and without obtaining a warrant, and used the device to track all of the vehicle’s movements for a month. This included evenings, weekends, and several days when the plaintiff was on vacation. The GPS data revealed that the plaintiff’s time records were false, and his employment was terminated in the ensuing disciplinary proceeding.

The plaintiff then sought judicial relief, claiming that the warrantless tracking was an unconstitutional search and seizure and the GPS evidence must therefore be suppressed and the termination rescinded. The New York Court of Appeals agreed that the search was subject to state and federal constitutional protections, but stated that a “workplace” exception applies and therefore the search did not need a warrant as long as it was reasonable in scope. The court nevertheless ruled for the plaintiff, holding that the search was unreasonably overbroad because it extended to non-working hours. Therefore, the GPS evidence had to be suppressed.

The court in Cunningham split 4-3, with the minority concurring only in the result. The concurring judges strongly disagreed that the workplace exception to the warrant requirement can apply to a search of a privately-owned vehicle. Because this issue could be decided differently in the future by federal courts applying the US Constitution, or by courts applying the constitutions of other states, public employers should use caution in relying on Cunningham.

By way of background, in a criminal case last year, the US Supreme Court held that GPS tracking of a private vehicle is a Fourth Amendment search and thus requires a warrant. US v. Jones, 132 S.Ct. 945 (2012). The New York Court of Appeals previously reached the same conclusion in 2009. People v. Weaver, 12 N.Y.3d 433 (2009). Because of these authorities, the court in Cunningham began its analysis by agreeing that search and seizure rules apply to the New York DOL’s GPS search. However, since the 1980s it has been established that when a public employer investigates work-related misconduct by searching an employee’s office and the desk, file cabinets, and other contents therein, that search falls within a workplace exception to search and seizure rules and does not require a warrant as long as the search is reasonable under all the circumstances. O’Connor v. Ortega, 107 S. Ct. 1492 (1987). The Cunningham majority’s extension of this workplace exception to GPS tracking of a private vehicle is what triggered the strong disagreement by the concurring judges.

As the concurring opinion pointed out, a private vehicle is not owned by the employer, nor is it subject to the employer’s control — especially when it is being used for travel away from the employer’s premises — and thus it is not analogous to the office, desk, and file cabinets in O’Connor. Nevertheless, the Cunningham majority stated that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search.” The majority justified this extension of the O’Connor rule only by saying that the plaintiff “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.”

New York public employers that rely on this decision to track an individual employee by GPS should ensure, before conducting the search, that they already have a reasonable suspicion that the employee is engaging in misconduct; otherwise the search may not be “justified at its inception.” Here, the DOL already had considerable objective evidence to suspect misconduct before it started the GPS tracking. Employers should also take care to conduct the GPS tracking in a manner that is reasonably tailored to the purpose of the search. Here, as previously noted, the DOL’s search was overbroad because it tracked the plaintiff’s car during non-work hours even though the legitimate purpose of the search was to find out where the plaintiff was during work hours.