In the Matter of Michael A. Cunningham, Appellant,v.New York State Department of Labor, Respondent.BriefN.Y.May 29, 2013 To be argued by: Kate H. Nepveu 20 minutes requested Appellate Division No. 512036 Court of Appeals of the State of New York IN THE MATTER OF THE APPLICATION OF MICHAEL A. CUNNINGHAM, Petitioner-Appellant, -against- NEW YORK STATE DEPARTMENT OF LABOR, Respondent, For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol Albany, New York 12224-0341 Telephone No. (518) 473-6085 Facsimile No. (518) 473-8963 Dated: February 8, 2013 i TABLE OF CONTENTS PAGE 0BTABLE OF AUTHORITIES......................................................................iii 2BPRELIMINARY STATEMENT.................................................................. 1 3BQUESTIONS PRESENTED....................................................................... 3 4BSTATEMENT OF THE CASE ................................................................... 4 A. Facts .............................................................................................. 4 B. Administrative Proceedings ......................................................... 7 C. Proceedings and Decision Below................................................ 11 ARGUMENT POINT I PETITIONER WAIVED HIS CLAIM THAT THE GPS SEARCH WAS INVALID IN THE ABSENCE OF A WARRANT............................................ 16 POINT II THE GPS SEARCH DID NOT REQUIRE A WARRANT; IT WAS PROPERLY ANALYZED UNDER THE STANDARD OF REASONABLENESS APPLICABLE TO INVESTIGATIONS OF WORK-RELATED MISCONDUCT.................................................................. 19 POINT III THE GPS DATA WAS OBTAINED IN A SEARCH THAT WAS REASONABLE AT INCEPTION AND IN SCOPE .......................................... 29 ii Table of Contents (cont'd) PAGE ARGUMENT (cont'd) POINT IV ALTERNATIVELY, THE COURT SHOULD SUSTAIN SO MUCH OF THE APPELLATE DIVISION’S DECISION AS FOUND THAT THE GPS EVIDENCE WAS HARMLESS AS TO SEVEN OF THE UNDERLYING CHARGES.......................................................................... 36 CONCLUSION ......................................................................................... 40 iii 0B TABLE OF AUTHORITIES CASES PAGE A., In re, 56 N.Y.2d 288 (1982) ............................................................................... 24 Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355 (2003) ............................................................................... 18 Boyd, Matter of v. Constantine, 81 N.Y.2d 189 (1993) ............................................................................. 29n Caruso, Matter of v. Ward, 72 N.Y.2d 432 (1988) ........................................................................passim City of Ontario v. Quon, 130 S. Ct. 2619 (2010).............................................................................. 35 Cunningham, Matter of v. N.Y. State Dep't of Labor, 89 A.D.3d 1347 (3d Dep't 2011)........................................................passim Delaraba, Matter of v. Nassau County Police Dep't, 83 N.Y.2d 367 (1994) ..................................................................... 17,19,24 Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010), rev'd on other grounds, Filarsky v. Delia, 132 S. Ct. 1657 (2012) ................................................ 22 Moro, Matter of v. Mills, 70 A.D.3d 1269 (3d Dep't 2010)............................................................. 29n Nat'l Ass'n of Letter Carriers v. U.S. Postal Serv., 604 F. Supp. 2d 665 (S.D.N.Y. 2009) ................................................. 22,23 New Jersey v. T.L.O., 469 U.S. 325 (1985).................................................................................. 32 O'Connor v. Ortega, 480 U.S. 709 (1987)...........................................................................passim iv Table of Authorities (cont’d) PAGE CASES Patchogue-Medford Congress of Teachers, Matter of v. Bd. of Educ., 70 N.Y.2d 57 (1987) ................................................................................. 24 Payton v. New York, 445 U.S. 573 (1980).................................................................................. 22 People v. Weaver, 12 N.Y.3d 433 (2009) ..................................................................... 23,25,27 People v. Weaver, 52 A.D.3d 138 (3d Dep't 2008), rev'd, 12 N.Y.2d 433 (2009) ................. 32 Seelig, Matter of v. Koehler, 76 N.Y.2d 87 (1990) ................................................................................. 24 Shankman, Matter of v. Axelrod, 73 N.Y.2d 203 (1989) ............................................................................... 28 United States v. Jones, 132 S. Ct. 945 (2012)................................................................................ 23 Wojewodzic, Matter of v. O'Neill, 295 A.D.2d 670 (3d Dep't 2002).......................................................... 28-39 STATE STATUTES Civil Service Law § 75 ........................................................................................................... 7 C.P.L.R. article 78................................................................................................ 1,11 § 7804(g) ................................................................................................... 12 Executive Law § 53(1) ....................................................................................................... 26 § 53(2) ....................................................................................................... 26 v Table of Authorities (cont’d) PAGE UNITED STATES CONSTITUTION Fourth Amendment ........................................................................................... 23 2BPRELIMINARY STATEMENT In this article 78 proceeding, petitioner Michael A. Cunningham challenges the termination of his employment by respondent New York State Department of Labor after an administrative hearing found him guilty of eleven charges of employee misconduct. Petitioner claims the determination was based in part on evidence improperly obtained from a Global Positioning System (“GPS”) device placed on his car by the State Office of the Inspector General, and thus that the determination must be annulled and the matter remitted to respondent for a new hearing. He now appeals as of right from the memorandum and judgment of the Appellate Division, Third Department, confirming respondent’s determination by a vote of 3 to 2. Matter of Cunningham v. N.Y. State Dep’t of Labor, 89 A.D.3d 1347 (3d Dep’t 2011) (Record on Appeal at R-III). Petitioner’s brief to this Court asserts for the first time that the GPS device could not be used except pursuant to a warrant issued on a showing of probable cause, even though the device was used in an investigation of work-related misconduct rather than for law 2 enforcement purposes. Because petitioner effectively waived this argument in the Appellate Division, it is not properly before the Court. In any event, even if the argument were properly presented, it should be rejected. A non-criminal investigation of work-related misconduct may properly employ a GPS search, as long as the search is reasonable as to both the inception and scope of the government intrusion. The GPS search at issue here meets this standard of reasonableness. It is undisputed that the search was reasonable at its inception—petitioner had already been charged in an earlier disciplinary proceeding for taking unauthorized leave time and falsifying time records, and respondent reasonably suspected that the charges reflected an ongoing pattern of similar misconduct. The search also was used only after a less-intrusive investigative technique proved unworkable. The subject search was also reasonable in scope. Although petitioner had four vehicles registered in his name, the GPS device was attached only to the vehicle that petitioner used for work, and it was used for only 30 days. Moreover, petitioner’s expectation of privacy in the location of that vehicle was diminished by both the nature of his job 3 duties, which required him to use his personal vehicle during the workday to travel to off-site locations, as well as the fact that he knew he was under investigation for his work-related misconduct. The decision of the Appellate Division should therefore be affirmed. 3BQUESTIONS PRESENTED 1. Whether petitioner waived, and thus the Court should not consider, the argument that a warrant issued on a showing of probable cause was required to obtain evidence from a GPS device as part of an investigation of petitioner’s work-related misconduct. 2. Whether the propriety of a GPS search for an investigation of work-related misconduct should be evaluated under the standard of reasonableness set forth in this Court’s decision in Matter of Caruso v. Ward, 72 N.Y.2d 432 (1988), notwithstanding that such a search would require a warrant when conducted for law enforcement purposes. 3. If so, whether the search here was reasonable, where petitioner was reasonably suspected of repeatedly leaving work to attend non- existent meetings and falsifying his time sheets; the collection of GPS evidence was limited to a period of 30 days and to only one of the four vehicles registered to petitioner; petitioner regularly used the subject 4 vehicle to travel to off-site locations as part of his job duties; and petitioner was aware that he was under investigation for his work- related misconduct. 4BSTATEMENT OF THE CASE A. Facts In 2008, petitioner was director of respondent’s Office of Staff and Organizational Development (Record on Appeal [“R”]-454 to R-456). He was principally involved in supervision and management, but he also spent a small portion of his time on special projects (R-465). His duties required him to leave the office during the day to attend various off-site meetings and conferences (R-465 to R-466, R-495, R-504, R-512, R-963, R-973). Before the disciplinary proceeding challenged here, petitioner had been disciplined for work-related misconduct three times. Most recently, he had been suspended without pay for two months after he was found guilty of leaving work without authorization and falsifying time records on three days in April 2008 (R-976). On two of those days, petitioner claimed to be going to off-site meetings, but he had no such meetings; on the third, he left a workshop purportedly to resolve a 5 problem with two employees, but one of those employees was not even at work that day (R-957, R-965, R-969). Respondent suspected that the three incidents in April 2008 were part of an ongoing pattern of unauthorized absences and falsified time records. It sought to substantiate its suspicions by assigning an investigator to follow petitioner on another day in April 2008 when he once again left the office for a supposed off-site meeting (R-959). This effort was unsuccessful; as petitioner later conceded, he spotted the investigator and changed his plans, abruptly making a u-turn, driving home, and then calling to say that he was taking the rest of the day off because his meeting had been cancelled (R-962). Respondent then referred the matter to the State Office of the Inspector General (R- 1107). In June and July 2008, the Inspector General pursued a number of investigative avenues: a subpoena for E-Z Pass records for vehicles registered to petitioner (R-1133); surveillance of a non-work location that petitioner was suspected of frequenting during business hours, the home of petitioner’s secretary (R-1174); interviews of petitioner and his secretary (R-1176, R-1178); and the use of a GPS device to record the 6 movements of the vehicle petitioner used for commuting and for travel during the workday to off-site assignments for the 30-day period from June 3 to July 3, 2008 (R-1111, R-1122, R-1129). This vehicle was one of four vehicles registered to petitioner (R-1144). As to the GPS device in particular, the Inspector General installed the device on petitioner’s vehicle on June 3 while it was parked at the Harriman State Office Building Campus in Albany (R-1111). On June 11, it replaced the device with another; on June 20, it repeated this procedure; and it removed this last device on July 8, 2008, although the device stopped recording information on July 3, 2008 (R-1116, R-1117, R-1122, R-1129).1 The Inspector General thereafter issued a final report concluding that petitioner and his secretary had each submitted falsified time records and travel vouchers on multiple occasions and recommending that respondent take appropriate disciplinary action (R- 1107). 1 These GPS devices were not sending information to the Inspector General on a contemporaneous basis. Rather, they recorded and stored information that could only be downloaded from the devices themselves after they were retrieved (R-352). 7 B. Administrative Proceedings Respondent issued a Notice of Discipline charging petitioner with thirteen acts of employee misconduct (R-781). The charges alleged, among other things, that petitioner submitted falsified time records over four consecutive two-week pay periods (charges 1-4); approved falsified time records for his secretary (charges 6, 10); submitted falsified travel vouchers in connection with a business trip he and his secretary took that ended June 25, 2008 (charges 8, 9); and was insubordinate and untruthful (charges 5, 11, and 12). (The remaining two charges (charges 7, 13) were not ultimately sustained by the hearing officer, and thus they are not addressed further.) At a hearing convened pursuant to Civil Service Law § 75, the hearing officer admitted in evidence the Inspector General’s official report, which included evidence obtained from petitioner’s E-Z Pass records, as well as evidence obtained from the GPS device attached to petitioner’s car (R-1107). Petitioner does not challenge the admission of his E-Z Pass records in this proceeding. Of the eleven charges ultimately sustained by respondent, seven derived no significant support from the GPS evidence. The GPS 8 evidence was entirely irrelevant to charge 4, which alleged that petitioner falsified his time record for the pay period that included July 17, 2008 (R-37). By that date, the Inspector General was no longer using a GPS device to track petitioner’s vehicle (R-1122). The charge was substantiated by testimony from an investigator from the Inspector General, who stated he observed petitioner entering his secretary’s apartment building before the end of the work day (R-417 to R-423). The charge was also substantiated by petitioner’s hearing testimony, in which he admitted that he often went to his secretary’s apartment during the work day (R-502). While petitioner claimed that any failures to charge sufficient leave time for the resulting absences were inadvertent (R-501 to R-502), the hearing officer discredited this claim, noting there was simply “[n]o credible evidence” to support it (R-89). Petitioner also claimed that he needed to be at his secretary’s apartment for extended periods of time during the workday in order to assist with her self-administration of medication for her multiple sclerosis (R-501 to R-502, R-580, R-584 to R-586). The hearing officer concluded that petitioner’s claim in this regard “bordered on the nonsensical” and “belies belief” (R-72, R-73). 9 The GPS evidence was similarly irrelevant as to charges 5 and 12, which charged petitioner with insubordination. Charge 5 alleged that petitioner was insubordinate for failing to work the schedule directed by his supervisor (R-37); the hearing officer sustained the charge on the basis of petitioner’s own testimony (R-79; R-582 to R-583). Charge 12 alleged that petitioner was insubordinate and untruthful regarding contact with Department of Labor employees while he was on paid administrative leave (R-39). The hearing officer sustained this charge based on his determination that the testimony of a Department witness was “entirely credible” (R-87; see R-207). Charges 8, 9, 10 and 11 related to an overnight business trip petitioner took with his secretary to Syracuse. The GPS evidence was insignificant in establishing petitioner’s guilt of these charges, in large part because the E-Z Pass records submitted at the hearing (R-1160) by themselves irrefutably demonstrated that on June 25, 2008, petitioner had returned from the trip with his secretary hours earlier than the two reported on their time records and travel vouchers (R-1009, R-1056, R- 1099, R-1101, R-1102)—a fact that petitioner also admitted at the hearing (R-517 to R-518, R-565). In his hearing testimony, petitioner 10 attempted to blame his secretary for submitting erroneous travel vouchers that, based on the reported time of return, sought reimbursements for meals (R-523 to R-525). He also claimed that it was accepted practice in his workplace to take the rest of the workday off without charging any leave time (R-518, R-524). But the hearing officer expressly discredited these claims based on petitioner’s own admissions that (a) he had read the vouchers’ certifications as to the accuracy of the statements they contained (R-525; see R-1099, R-1101, R-1102), and (b) he had never received supervisory approval to take time off without reporting it (R-518, R-521, R-567, R-1223 to R-1224). The hearing officer thus determined that petitioner improperly submitted a travel voucher seeking reimbursement where none was due (Charge 8), improperly approved the time record and travel voucher of his secretary (Charges 9 and 10), and then lied about the entire incident when subsequently interviewed by the Inspector General (Charge 11) (R-82 to R-85).2 2 Petitioner also submitted false time records for the two-week period including that trip (Charge 2), but we exclude that charge from this list because it contained other allegations of falsification that relied in part on the GPS evidence as well as on petitioner’s testimony (R-71). 11 Only charges 1, 2, 3 and 6 were substantiated in any significant degree by GPS evidence. These included charges that petitioner falsified his own time records or approved falsified records for his secretary, in some cases on multiple days, for the pay periods during which the GPS device was attached to his car (R-68 to R-76, R-80). At the conclusion of the hearing, the hearing officer recommended that the eleven charges described above be sustained and that petitioner’s employment be terminated (R-90 to R-92).3 Respondent accepted the recommendation and terminated petitioner’s employment (R-1501). C. Proceedings and Decision Below Petitioner commenced this article 78 proceeding to challenge respondent’s determination. Petitioner argued that the GPS search was unconstitutional, that the evidence obtained from that search should not have been considered by the hearing officer, and that, absent the GPS evidence, respondent’s determination was not supported by substantial evidence and should be annulled (R-8). He initially claimed 3 As noted above, two charges were not sustained by the hearing officer. 12 that annulment of the determination would entitle him automatically to reinstatement (R-12). Later, he conceded that reinstatement was unwarranted and that a remand would be appropriate (Petitioner’s Reply Brief to the Appellate Division at 13). After respondent filed its answer, the proceeding was transferred to the Appellate Division for initial disposition pursuant to C.P.L.R. 7804(g), because it purported to raise a substantial evidence question (R-1). In its brief to that court, respondent defended its consideration of the GPS evidence, but also asserted that its determination was amply supported by non-GPS evidence and thus that any impropriety in considering the GPS evidence was harmless. Petitioner conceded that three of the charges—charges 4, 5 and 12—had been sustained without consideration of any GPS evidence, but disagreed as to the other charges (Petitioner’s Reply Brief to Appellate Division at 5). The Appellate Division confirmed respondent’s determination by a vote of 3 to 2. In doing so, the Appellate Division first determined that it was necessary to reach the constitutional question posed by the GPS evidence, because for four charges the GPS evidence could not be considered harmless. For the other seven charges, however, the 13 Appellate Division determined—unanimously—that the GPS evidence was harmless, and therefore that those charges should be confirmed. The majority noted that petitioner had conceded that charges 4, 5 and 12 were entirely untainted by the GPS evidence. 89 A.D.3d at 1349 (R-V). And the majority concluded, upon its own review of the record, that the GPS evidence was insignificant as to charges 8, 9, 10 and 11, because those charges were amply supported by non-GPS evidence, including the E-Z Pass records, petitioner’s own testimony, and the hearing officer’s explicit credibility determinations. Id. The majority thus determined that any error in considering the GPS evidence was harmless as to those seven charges. Id.; accord, 89 A.D.3d at 1351-52 (Spain, J., dissenting) (R-VIII). As to four of the charges, however—charges 1, 2, 3 and 6—the majority explained that while the record contained some non-GPS evidence that supported these charges, the GPS evidence was sufficiently significant to require reversal and remand if, as petitioner contended, the GPS evidence had been improperly considered. 89 A.D.3d at 1349 (R-V). The majority thus explained it was necessary to reach the constitutional question posed by the GPS evidence. And on 14 that issue, the majority determined that the evidence was properly and reasonably considered for purposes of the administrative proceeding at issue. Id. at 1351 (R-VIII). It therefore confirmed the determination in its entirety. The dissenting justices agreed that seven of the charges should be sustained regardless of the constitutionality of the GPS evidence. 89 A.D.3d at 1351-52 (R-VIII). They disagreed, however, that the remaining four charges could be sustained. In their view, the GPS evidence had been improperly obtained, and thus it should have been suppressed at the hearing. Id. at 1352 (R-IX). As a result, the dissenting justices concluded that the matter should be “remit[ted] for the imposition of a penalty based solely on the sustainable charges.” Id. Petitioner appealed to this Court as of right. His brief challenges only so much of the Appellate Division’s decision as upheld respondent’s consideration of the GPS evidence. It does not challenge so much of the Appellate Division’s decision as ruled, unanimously, that respondent properly sustained seven of the charges, regardless of the propriety of the GPS evidence. 15 In light of the limited scope of this appeal, respondent sought to expedite resolution of the case and avoid further litigation by moving for an order (a) confirming its authority, or alternatively granting it leave, to annul the four charges as to which the Appellate Division divided (charges 1, 2, 3, and 6) and to redetermine the penalty based solely on the remaining seven charges, and (b) dismissing the appeal as moot. While the Court denied that motion at the time, respondent renews the suggestion here in the event the Court wishes to reconsider. Alternatively, respondent offers the following arguments in support of affirmance. 16 ARGUMENT POINT I PETITIONER WAIVED HIS CLAIM THAT THE GPS SEARCH WAS INVALID IN THE ABSENCE OF A WARRANT Petitioner effectively conceded in the Appellate Division that the GPS search at issue here did not require a warrant on a showing of probable cause, but rather should be analyzed under the reasonableness standard applicable to government investigations of work-related misconduct. He has accordingly waived the argument presented here that the GPS search was invalid in the absence of a warrant. In the Appellate Division, petitioner described the question presented in the case as “whether an intrusive GPS search can be justified under the narrow exception to the warrant requirement applicable to searches performed by the government as employer” (Pet. Br. to App. Div. at 7). This question on its face concedes the existence of an exception for work-related searches, and asks only whether the search in question satisfies the requirements of that exception. Under the work-related exception to the warrant requirement, the government can properly search an employee’s workplace for legitimate, 17 work-related, noninvestigatory purposes, and also for investigations into work-related misconduct, if its search satisfies the standard of reasonableness as to both the inception and the scope. Matter of Delaraba v. Nassau County Police Dep’t, 83 N.Y.2d 367, 374 (1994); Matter of Caruso v. Ward, 72 N.Y.2d 432, 437 (1988); O’Connor v. Ortega, 480 U.S. 709, 725-26 (1987). Petitioner never argued in his briefs to the Appellate Division that the propriety of the GPS evidence should be analyzed under a different standard. To the contrary, petitioner effectively conceded that the standard of reasonableness applied here. After stating that the question was whether the challenged search could be justified by the standard of reasonableness applied to work-related searches, petitioner went on to argue that, while the GPS search at issue here was reasonable in inception, it was not reasonable in scope (Pet. Br. to App. Div. at 8-10). All the Justices of the Appellate Division who considered this case thus reasonably assumed that the reasonableness standard applied and confined their analysis to whether the search satisfied that standard. 89 A.D.3d at 1350, 1352 (R-VI, R-IX). 18 The Court should therefore find that petitioner has waived the argument presented here that “the government was required to obtain a warrant issued upon probable cause” in this matter (Br. at 2). As this Court has repeatedly said, it “does not review questions raised for the first time on appeal,” except for the “rare exception” when the new issue “could not have been avoided by factual showings or legal countersteps had it been raised below.” Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 359 (2003). Here, had petitioner made this argument to the Appellate Division, not only could respondent have made “a legal argument that might have undermined [petitioner’s] position,” but this Court could then have “benefitted from the wisdom of the . . . Appellate Division.” Id. Petitioner’s challenge to the legal standard applied by the Appellate Division is therefore waived. 19 POINT II THE GPS SEARCH DID NOT REQUIRE A WARRANT; IT WAS PROPERLY ANALYZED UNDER THE STANDARD OF REASONABLENESS APPLICABLE TO INVESTIGATIONS OF WORK-RELATED MISCONDUCT If the Court considers petitioner’s argument that the GPS search at issue here required a warrant on a showing of probable cause, it should reject it. As this Court has explained, “[t]he constitutionality of a search conducted by a public employer for noninvestigatory, work- related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances as to both the inception and the scope of the government intrusion.” Matter of Delaraba v. Nassau County Police Dep’t, 83 N.Y.2d at 374 (internal quotations and alterations omitted) (citing Matter of Caruso v. Ward, 72 N.Y.2d at 437, and O’Connor v. Ortega, 480 U.S. at 725-26). That standard governs the propriety of using a GPS device to investigate a public employer’s reasonable suspicions that an employee is taking unauthorized leaves and falsifying time and travel vouchers, where, as here, the employee’s duties include the use of a personal vehicle on a routine basis to attend 20 off-site meetings and conferences during the workday. Requiring government employers to obtain a warrant on a showing of probable cause in such a case would seriously and unnecessarily impede their ability to operate in an effective and efficient manner. The reasons for rejecting both a warrant requirement and a probable-cause requirement in favor of a standard of reasonableness for work-related searches were explained by Justice O’Connor in O’Connor v. Ortega, 480 U.S. 709, in a plurality opinion whose reasoning this Court has adopted. Caruso, 72 N.Y.2d at 437. Addressing the government interests at stake, she explained, “public employers are not enforcers of the criminal law; instead [they] have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner.” 480 U.S. at 724. And the work of an agency “inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees.” Id. The imposition of either a warrant requirement or a probable cause requirement, then, would “impose intolerable burdens on public employers” by creating delays that “will be translated into tangible and often irreparable damage to the agency’s work, and ultimately to the 21 public interest.” Id.; accord, id. at 722. Further, “the privacy interests of government employees in their place of work which, while not insubstantial, are far less than those found at home or in some other contexts.” Thus the “special needs” of government, “beyond the normal need for law enforcement,” make impracticable both a warrant and a probable-cause requirement. Id. at 725. These arguments hold equally true here. Respondent has a paramount interest in assuring that its employees are not neglecting their duties while effectively stealing taxpayer money. Ortega, 480 U.S. at 724. And while petitioner has a privacy interest in the location of his personal vehicle, his interest is considerably less than those found at home. Petitioner not only used his personal vehicle to commute to work, but he was required to use his vehicle to travel to various off-site locations during the workday, travel that in some instances would have entitled him to receive reimbursement for travel expenses, including mileage and tolls (R-1099, R-1101). In light of the nature of petitioner’s job duties, tracking the location of his vehicle—as opposed to its contents—involved a relatively limited invasion of his privacy. Thus, as 22 in Ortega, holding respondent to the heightened probable-cause standard would be unduly burdensome. In arguing to the contrary, petitioner cites cases from other jurisdictions (Br. at 15) involving particularly strong personal privacy interests. For example, in Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010), rev’d on other grounds, Filarsky v. Delia, 132 S. Ct. 1657 (2012), the public employer sought to search the contents of a firefighter’s home for evidence that he was engaged in home improvement projects and thus was not in fact physically restricted from doing his job. Citing Payton v. New York, 445 U.S. 573 (1980), the court reasoned that “no zone of privacy is more clearly defined than one’s home,” and thus that “[a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 621 F.3d at 1075.4 Nat’l Ass’n of Letter Carriers v. U.S. Postal Serv., 604 F. Supp. 2d 665 (S.D.N.Y. 2009), involved the medical records of public employees in the possession of purely private health care providers, and 4 The court alternatively reasoned that, even if the search had been analyzed under the standard of reasonableness set forth in Ortega, it would have been invalidated because there were no reasonable grounds for believing that the search was necessary for the investigation. Id. at 1076 n.4. 23 a broad policy that would have extended not only to medical records with a bearing on disability and benefits claims, but also to medical records with no bearing on work-related issues at all. Id. at 676. But petitioner has not nearly as strong a privacy interest in the location of the vehicle he used, not only to commute to work, but also routinely to attend off-site meetings and conferences for work purposes. Neither of these cases is therefore relevant for purposes of determining the appropriate analysis for the GPS search at issue here. It also is insufficient to say (Br. at 10) that a warrant was required here because a warrant would ordinarily have been required if the GPS device had been placed to gather information “for the purpose of official criminal investigation.” People v. Weaver, 12 N.Y.3d 433, 444 (2009) (relying on State Constitution); cf. United States v. Jones, 132 S. Ct. 945, 949, 954 (2012) (holding that attachment of GPS device to vehicle to obtain information in criminal investigation constituted a trespassory search under Fourth Amendment, but declining to consider whether warrantless search was reasonable). This Court has already recognized that the criminal and employment contexts are different, and therefore that searches that require warrants upon a showing of 24 probable cause in criminal investigations may be valid under a standard of reasonableness if conducted during investigations of work- related misconduct. Compare In re A., 56 N.Y.2d 288, 291 (1982) (requiring court order based on probable cause to obtain blood sample from criminal suspect); with Delaraba, 83 N.Y.2d at 375 (authorizing warrantless drug testing of urine samples from certain law enforcement officers under standard of reasonableness); see Matter of Patchogue- Medford Congress of Teachers v. Bd. of Educ., 70 N.Y.2d 57, 67 (1987) (noting comparable nature of blood and urine testing). Further, in a line of cases involving drug testing of urine samples submitted by law enforcement or corrections officers, this Court has held that the urine tests were reasonable despite that they were “at least as intrusive as a strip search” and “involve[d] a great intrusion on individual privacy and dignity.” Caruso, 72 N.Y.2d at 438-39 (internal quotation omitted); see Delaraba, 83 N.Y.2d at 374; Matter of Seelig v. Koehler, 76 N.Y.2d 87, 96 (1990). Petitioner is thus suggesting that a higher standard should be applied to the use of a GPS tracking device than to urine tests or strip searches, a suggestion that should be rejected. While GPS evidence may certainly reveal trips of a private 25 nature, Weaver, 12 N.Y.3d at 441-42, providing urine samples for drug tests is inevitably “a great intrusion” on one’s bodily “privacy and dignity,” Caruso, 72 N.Y.2d at 438-39. Petitioner thus offers no sound reason to depart from this Court’s precedent that a reasonableness standard is applicable to investigations of work-related misconduct. In its brief to this Court as amicus curiae, the New York State United Teachers suggests that a warrant issued upon probable cause should be required because any evidence obtained through investigating allegations of non-criminal behavior “may ultimately play a role in a criminal investigation and prosecution” (Amicus Br. at 16). The same could be said of any investigation into work-related misconduct; yet this Court and the U.S. Supreme Court have held such investigations should be analyzed under a standard of reasonableness. Whether evidence obtained in such an investigation could be used in a subsequent criminal proceeding is, however, a question that is not presented here and thus that this Court need not decide. Amicus also erroneously claims (Amicus Br. at 11, 15) that a warrant should be required for any search conducted by the Inspector General. First, amicus argues that because the Inspector General 26 sometimes investigates criminal activity, all of its searches should be considered under the constitutional standard applicable to searches for the purpose of official criminal investigations, “regardless of whether criminal prosecution is a final result” (Amicus Br. at 15). Yet this ignores that the Inspector General is statutorily mandated to “receive and investigate complaints” regarding non-criminal as well as criminal activity. Exec. Law § 53(1). Because the Inspector General is specifically authorized to investigate complaints “concerning corruption, fraud, criminal activity, conflicts of interest or abuse in any covered agency,” its mandate necessarily extends to non-criminal corruption, fraud, and conflicts of interest or abuse. Exec. Law § 53(1). Moreover, the Inspector General has the discretion to take a wide range of actions after investigations, including recommending disciplinary action, as was done here. Exec. Law § 53(2). It would thus be inappropriate to treat all searches by the Inspector General as though they were performed in the context of a criminal investigation. As stated above, the relevant inquiry is rather the purpose of the investigation, and if that purpose is to investigate allegations of non-criminal work-related misconduct, then the reasonableness standard should apply. 27 Amicus also implies that the Inspector General cannot be trusted to determine when a search is reasonable and thus should be required to obtain a warrant in all circumstances, but without adequate foundation. Amicus claims that the Inspector General conducted a warrantless GPS search even after this Court’s decision in People v. Weaver (Amicus Br. at 13 n.2, 23 n.3 & n.4). Initially, of course, whether Weaver governs searches for other than criminal investigations is the question before this Court now, and thus any state agency’s warrantless GPS search post-Weaver may well have been reasonable. But in any event, the Inspector General has advised this office that, contrary to NYSUT’s claim, it has not conducted any warrantless GPS searches post-Weaver. NYSUT, citing privacy concerns, has declined to provide this office with any identifying information that would allow confirmation of its allegations. However, NYSUT has advised this office that the search it alleges involved a state-issued vehicle—a detail that it omitted from its brief to this Court and that, as even petitioner admits, implicates substantially different privacy interests (Br. at 14-15 & 15 n.5). NYSUT’s allegations therefore provide no support for its claim that the reasonableness standard should not apply here. 28 Finally, amicus claims that it is no burden on the Office of the Inspector General to obtain a warrant because that office is an investigative agency staffed by former law enforcement personnel who are familiar with the probable cause standard and procedures to obtain a warrant (Amicus Br. at 13), and because that office can work with other law enforcement agencies to obtain warrants or may be able apply for a warrant itself (Amicus Br. at 18). As the Appellate Division noted, however, this Court has held in a different context that authority to obtain an ex parte warrant cannot be inferred. Matter of Shankman v. Axelrod, 73 N.Y.2d 203, 206-07 (1989). And amicus makes no effort to explain why local law enforcement would be willing to use its own resources to assist the Inspector General for a non-criminal investigation. More broadly, unfamiliarity with these standards and procedures is not the only reason why a warrant requirement, or indeed a probable- cause requirement, has been rejected for workplace searches. At least as significant are the importance of the proper, efficient operation of government agencies and the delay caused by a warrant or probable- cause requirement, weighed against the reduced privacy interests of 29 employees in the workplace. Amicus fails to recognize these additional interests served by the reasonableness standard. This Court should thus reject its argument that the reasonableness standard should not apply here. POINT III THE GPS DATA WAS OBTAINED IN A SEARCH THAT WAS REASONABLE AT INCEPTION AND IN SCOPE The GPS evidence at issue here was obtained in a search that was reasonable as to both the inception and scope of the government intrusion. As a result, it was properly considered by respondent in its determination,5 and the decision of the Appellate Division should be affirmed. A search is “justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the 5 In his brief to the Court (Br. at 23), petitioner challenges the Appellate Division’s reference to a line of cases involving exemptions to the exclusionary rule in administrative proceedings where the deterrent effect of exclusion is outweighed by the need for truth. See 89 A.D.3d at 1349, 1350 n.3 (R-V, R-VII) (citing Matter of Moro v. Mills, 70 A.D.3d 1269 (3d Dep’t 2010), and Matter of Boyd v. Constantine, 81 N.Y.2d 189 (1993)). The Appellate Division did not rely on that line of cases in rendering its decision, however, and respondent does not rely on it here as an alternative ground for affirmance. 30 employee is guilty of work-related misconduct.” Ortega, 480 U.S. at 726. Respondent had such grounds here. Indeed, petitioner effectively concedes as much; neither his brief to this Court or to the Appellate Division offers an argument to the contrary. In any event, the record supports the Inspector General’s reasonable determination to investigate petitioner’s suspected work- related misconduct by seeking to confirm his location during the workday with the use of a GPS device. Petitioner had already been charged in a prior disciplinary matter with falsifying time records on three separate days in April 2008, each time claiming to have an off-site meeting or other work-related reason for leaving the office that turned out to be a pretense, and those charges remained pending (R-976). Given that petitioner’s supervisory duties routinely required him to attend off-site meetings and conferences, it was reasonable to suspect that the April 2008 charges reflected an ongoing pattern of taking unauthorized absences and falsifying time records. As the Appellate Division noted, “[r]espondent clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers’ monies.” 89 A.D.3d at 1350 (R-VII). It 31 was accordingly not only reasonable, but necessary, for respondent to confirm petitioner’s location during working hours. Although respondent turned first to less-intrusive investigative techniques, those proved inadequate. Respondent initially sought to assign someone to follow petitioner when he left for purported off-site meetings. Petitioner recognized that he was being followed, however, and abruptly changed his plans, making a u-turn, driving home, and then calling the office to say his meeting had been cancelled and he was taking the rest of the day off (R-962). And having once spotted an investigator following him, petitioner was likely to look for, spot, and evade subsequent similar efforts at surveillance. Thus, the failure of this less-intrusive investigation technique diminished the chance of documenting any future misconduct through similar in-person means. Respondent also obtained petitioner’s E-Z Pass records. But those records could document petitioner’s movements only to the extent he accessed toll roads and bridges, and thus could be of only limited value to the investigation. As a result, when respondent referred this matter to the Inspector General, the Inspector General reasonably resorted to a more-intrusive 32 investigative technique, a GPS device, to confirm the location of the vehicle that petitioner routinely used to attend off-site meetings and conferences during work hours. The search was therefore reasonable as to its inception. Indeed, it was all the more reasonable, given the fact, as the Appellate Division noted, 89 A.D.3d at 1351 n.4 (R-VII), that when the Inspector General installed the GPS device here, it had reason to believe that the use of a GPS device was constitutional even for a criminal investigation. The weight of authority suggested as much, and just days after the GPS device was installed, the Appellate Division so held in what was, at the time, the only appellate decision in the State on the topic. See People v. Weaver, 52 A.D.3d 138 (3d Dep’t 2008), rev’d, 12 N.Y.2d 433 (2009). The search was also reasonable in scope. A search “will be reasonable in scope when ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the misconduct.’” Ortega, 480 U.S. at 726 (quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)). The GPS search used here was limited in scope in two important ways. First, although 33 petitioner had four vehicles registered in his name, a GPS device was attached to only one of them, the vehicle that petitioner used not only to commute to work, but also to drive to various off-site meetings and conferences during the workday. And the GPS device was attached while petitioner’s car was parked at the Harriman State Office Building Campus, not on private property. Second, the search was limited in duration. As the Appellate Division noted, the use of the GPS device for a single month was reasonable to determine whether petitioner’s work- related misconduct reflected the suspected pattern of abuse and not merely a handful of isolated incidents. 89 A.D.3d at 1351 (R-VIII). Moreover, the reasonableness of the scope of the search must be evaluated in light of the strength of the state interests at stake and petitioner’s reasonable expectations of privacy in the circumstances presented. Both weigh in favor of upholding the reasonableness of the search. First, as the Appellate Division properly recognized, the State has a strong interest in assuring that its workers are not unfairly stealing time and money from taxpayers by falsifying time and travel records. This interest is heightened where, as here, a high-level employee is 34 reasonably suspected of engaging in an ongoing pattern of such misconduct. At the same time, petitioner’s reasonable expectation of privacy in the location of his personal vehicle was diminished by the specific nature of his job duties. Unlike an employee who simply uses a personal vehicle to commute to work, petitioner regularly used his personal vehicle to travel to off-site meetings and conferences during the workday. He should therefore reasonably have expected his employer to supervise his whereabouts during the day to assure that he was actually physically present at those off-site locations. And petitioner’s reasonable expectation of privacy was diminished still further by the fact that petitioner had reason to know his employer was in fact seeking to confirm his whereabouts during the day. As noted above, petitioner had noticed respondent trying to follow him previously, a fact that effectively removed the possibility that he could afterwards “have been surprised to be under investigation.” 89 A.D.3d at 1351 (R-VII). The fact that it was not reasonable for petitioner to think that his movements “were in all circumstances immune from scrutiny” accordingly weighs in favor of the constitutionality of this 35 search’s scope. City of Ontario v. Quon, 130 S. Ct. 2619, 2631 (2010) (applying reasonableness standard of Ortega). Petitioner argues (Br. at 9) that the duration of the search was unreasonable because it included four days when he was on vacation, June 30 through July 3, 2008 (R-1129). While the inclusion of this period of time was unfortunate, there is nothing in the record to suggest that it was deliberate. In these circumstances, the fact that the search extended to these few additional days should not invalidate the entire search. Petitioner also argues that the search was unreasonable because it collected data about petitioner’s movements during non-working hours (Br. at 20). But the record contains no evidence that the GPS device used on petitioner’s car was capable of being limited to recording movement during specified hours. Rather, the record reflects that the GPS device was “always picking up information from the satellites” and was triggered by the vehicle’s movement, but could be set to report stops of different durations (R-333, R-404; see, e.g., R-1240; see also R- 1296 to R-1298 (later user manual for GPS device from same manufacturer and similar in operation to device placed on petitioner’s 36 car (R-378 to R-379)). Thus it appears that in order to record movement only during petitioner’s workday, respondent would have had to physically install the device at the start of each workday and then remove the device by the end of workday, a task that would seriously have compromised the investigation. The GPS evidence was therefore properly admitted because the scope of this particular search was reasonably related to the individualized suspicions and legitimate justification that prompted it. POINT IV ALTERNATIVELY, THE COURT SHOULD SUSTAIN SO MUCH OF THE APPELLATE DIVISION’S DECISION AS FOUND THAT THE GPS EVIDENCE WAS HARMLESS AS TO SEVEN OF THE UNDERLYING CHARGES If the Court concludes that the GPS evidence was improperly considered by respondent, it should nonetheless sustain so much of the Appellate Division’s decision as found that the GPS evidence was harmless as to seven of the charges against petitioner, namely charges 4, 5, 8, 9, 10, 11 and 12. This is so for two reasons. First, petitioner’s brief to the Court abandons any challenge to this aspect of the Appellate Division’s decision. To be sure, in his 37 factual description of the hearing officer’s decision, petitioner asserts that, except for three of the sustained charges (charges 4, 5, and 12),6 “the Hearing Officer relied on evidence obtained from the GPS tracking device” (Pet. Br. at 7-8; see Pet. Reply Brief to App. Div. at 5). And in his conclusion, petitioner asks the Court to “remand for a new proceeding devoid of unconstitutionally obtained evidence” (Pet. Br. at 31). But petitioner does not offer any argument challenging the unanimous determination by the Appellate Division that four additional charges, specifically charges 8, 9, 10, and 11, though supported by some GPS evidence, were supported by sufficient independent evidence to render harmless any error in admitting the GPS evidence. Petitioner thus abandons any challenge to respondent’s determination of guilt as to seven of the charges, namely charges 4, 5, 8, 9, 10, 11 and 12. Second, the Appellate Division was correct in its unanimous view that any impropriety in considering the GPS evidence was harmless as to charges 8, 9, 10, and 11, the four charges that related to the 6 Petitioner has clarified that he made an inadvertent misstatement in his brief to this Court (Br. at 8) when he said that only two charges— rather than three—did not involve any GPS evidence (Pet. Opp. to Motion to Dismiss at 3 n.1). 38 overnight business trip that petitioner took with his secretary to Syracuse. While the record contains some GPS evidence to support these charges (R-1124, R-1128), that evidence was insignificant, because the charges were fully documented by the E-Z Pass records (R- 1160). Those records unequivocally demonstrated that petitioner and his secretary returned from the trip and went to their homes before 1:00 p.m. on June 25, 2008. The E-Z Pass records thus established that petitioner had submitted or approved false time records and travel vouchers that were premised on a return time of approximately 5:00 p.m. (R-1009, R-1056, R-1099, R-1102). The records additionally established that petitioner had lied to the Inspector General about the incident (R-1179). In light of the E-Z Pass evidence, the GPS evidence was superfluous and could not have influenced the hearing officer’s determination of guilt. Accordingly, even if the Court disagrees with the Appellate Division with respect to the GPS evidence considered here, it should, as the dissenting justices urged, see 89 A.D.3d at 1352 (R-IX), remit the matter to respondent for a redetermination of the penalty on the seven independently sustainable charges. See Matter of Wojewodzic v. O'Neill, 39 295 A.D.2d 670, 672 (3d Dep’t 2002) (“[W]here, as here, the record contains substantial evidence to support certain of the sustained charges and specifications but the penalty imposed was not separately assessed as to each of the charges, the proper course is to remit the matter for redetermination of the penalty.”). 40 CONCLUSION The decision of the Appellate Division should be affirmed; alternatively, the matter should be remitted to respondent for a redetermination of the penalty on the seven independently sustainable charges. Dated: Albany, New York February 8, 2013 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: _____________________________ KATE H. NEPVEU Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 473-6085 Reproduced on Recycled Paper