In the Matter of Michael A. Cunningham, Appellant,v.New York State Department of Labor, Respondent.

Brief

N.Y.May 29, 2013

Court of Appeals STATE OF NEW YORK MICHAEL A. CUNNINGHAM, Appellant, Appellate Division -against- Third Dep’t Index No. NEW YORK STATE DEPARTMENT 512036/2011 OF LABOR, Respondent. PROPOSED AMICUS CURIAE BRIEF ON BEHALF OF NEW YORK STATE UNITED TEACHERS IN SUPPORT OF APPELLANT RICHARD E. CASAGRANDE Attorney for Proposed Amicus New York State United Teachers 52 Broadway, 9th Floor New York, NY 10004 Telephone: (212) 533-6300 Facsimile: (212) 228-9253 WENDY M. STAR KEITH J. GROSS Of Counsel Reproduced on Recycled Paper TABLE OF CONTENTS Page TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 DECISION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 POINT I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 POINT II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 POINT III.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 i TABLE OF AUTHORITIES Page CASES: Allen v. Murphy, 37 A.D.2d 117, 119 (1st Dep’t 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Caruso v. Ward, 72 N.Y.2d 432 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 City of Ontario v. Quon, 130 S.Ct. 2619, 2627 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Cunningham v. New York State Department of Labor, 89 A.D.3d 1347 (3d Dep’t 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Finn’s Liquor Shop v. State Liquor Auth., 24 N.Y.2d 647 (1969), cert. denied, 396 U.S. 840 (1969). . . . . . . . . . . . . . 20 Lukas v. TriBorough Bridge and Tunnel Auth., No. CV-92-3680 (CPS), 1993 WL 597132 at *7 (E.D.N.Y. Sept. 15, 1993). . . . 16 O’Connor v. Ortega, 480 U.S. 709 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Weaver, 12 N.Y.2d 433 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 613-14 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Jones, 132 S.Ct. 945 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ii STATUTES: NEW YORK CIVIL PRACTICE LAW & RULES §7804(g). . . . . . . . . . . . . . . . . 4 EXECUTIVE LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, passim CRIMINAL PROCEDURE LAW §690.05(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 iii COURT OF APPEALS STATE OF NEW YORK _____________________________________________ MICHAEL A. CUNNINGHAM, Appellate Division Appellant, Third Dep’t Index No. 512036/2011 -against- NEW YORK STATE DEPARTMENT OF LABOR, Respondent. ______________________________________________ STATEMENT OF INTEREST The instant matter involves issues of great importance to the members of New York State United Teachers (“NYSUT”). Many of NYSUT’s members, including public school teachers, use their private vehicles to travel for work during work hours and often after a school day. NYSUT members also use their personal vehicles to travel to work, as well as to work-related functions outside of their school day. These individuals could be directly affected by the holding in this matter. NYSUT is a statewide labor organization affiliated with the American Federation of Teachers, the National Education Association and the AFL-CIO, and has over 1,263 local affiliated unions. These unions represent over 600,000 public and private sector employees and retirees in New York. The majority of NYSUT 1 members are in-service or retired public school teachers and school-related professionals, including secretaries, nurses, custodians, and bus drivers. NYSUT also provides representation to non-school-related public employees, such as parole officers and nurses. In this case, the Appellate Division, Third Department, incorrectly held that the surreptitious warrantless GPS tracking of appellant’s private vehicle during work and non-work hours was a reasonable search. In light of appellants’ arguments on appeal, this matter implicates the rights of NYSUT’s members to be protected from unreasonable and illegal searches by the government. Because of the overarching significance of the issues presented by this case to a large portion of NYSUT’s membership, and in light of NYSUT’s particular familiarity and expertise within the area of administrative disciplinary hearings for public workers, NYSUT submits this brief to address arguments that might otherwise not be presented. 2 STATEMENT OF FACTS A brief review of the facts pertinent to the arguments of the amicus curiae is provided below. On June 3, 2008 at approximately 10:00 a.m., investigators from the Office of the State Inspector General (“OIG”) affixed a GPS tracking device to the personal car of appellant Michael A. Cunningham (R. 19, 252-53). In doing this, the1 investigators were acting at the request of Andrew Adams, Associate Commissioner for Human Resources at the Department of Labor (“DOL”) (R. 19, 252-53). The purpose behind the GPS tracking was to investigate allegations of time theft (R. 1111). On June 20, 2008, investigators from OIG replaced the initial GPS device with a second device (R. 1117). This GPS device remained on appellant’s vehicle until July 8, 2008 (R. 1122). The GPS devices collected information about the location of appellant’s vehicle during and outside of work hours, during the work-week and on the weekends. The GPS additionally monitored appellant during a time when appellant was on a pre-approved vacation (R. 1241-42, 1246-47, 1247-48). References to the Record on Appeal filed with the Court of Appeals are identified as 1 R. ____. 3 The DOL then sought to terminate appellant from his position as Director of Staff and Organizational Development. (R. 781). At the disciplinary hearing, appellant objected to the introduction of the GPS evidence, arguing that it was the product of an unlawful search under Article I, Section 12 of the New York State Constitution (R. 794-809). The Hearing Officer ruled that the evidence should not be excluded because the exclusionary rule did not apply in a work-related administrative hearing. The Hearing Officer also questioned whether GPS tracking constituted a search, but did not rule on that issue (R. 26). Ultimately, the Hearing Officer sustained 11 of the 13 disciplinary charges before him and found termination to be an appropriate penalty. In 9 of the 11 charges that were sustained, the Hearing Officer relied on evidence obtained from the GPS tracking (R. 68-88). On December 6, 2010, appellant filed an Article 78 petition in Supreme Court, Albany County (R. 6). Respondent moved pursuant to New York Civil Practice Law and Rules § 7804(g) to have the petition transferred to the Appellate Division (R. 1). On January 25, 2011, the Supreme Court, Albany County, ordered that the case be transferred to the Appellate Division. Id. On November 23, 2011, the Appellate Division, Third Department, upheld the Hearing Officer’s determination in a split decision. This appeal has ensued. 4 DECISION BELOW In Cunningham v. New York State Department of Labor, 89 A.D.3d 1347 (3d Dep’t 2011), the Appellate Division, Third Department, upheld the Hearing Officer’s determination to allow GPS tracking information to be used as evidence against appellant in the disciplinary proceeding brought against appellant by the DOL. The court, in a split decision, held that the warrantless GPS surveillance of appellant’s vehicle was not unreasonable. See Cunningham, 89 A.D.3d at 1350-51. In so holding, the Appellate Division reasoned that the DOL had a responsibility to investigate the suspected abuse of work time. Id. The dissent, however, argued that the GPS surveillance, which was conducted outside of work hours and even during a vacation, was so intrusive that it could not be found to be reasonable. Id. at 1351- 52. 5 ARGUMENT POINT I THE GOVERNMENT’S SURREPTITIOUS PLACEMENT OF A GPS DEVICE ON APPELLANT’S PRIVATE CAR WITHOUT OBTAINING A WARRANT WAS UNCONSTITUTIONAL Based on this Court’s decision in People v. Weaver, 12 N.Y.2d 433 (2009), and the United States Supreme Court’s recent ruling in United States v. Jones, 132 S.Ct. 945 (2012), the government’s search of appellant’s private vehicle via GPS tracking without a warrant was unconstitutional and a violation of appellant’s privacy rights. A. The Government was Required to Obtain a Warrant in Order to Affix a GPS Device on Appellant’s Personal Car. Pursuant to Weaver, GPS tracking constitutes an illegal search under the New York State Constitution if conducted without having obtained a warrant upon a showing of probable cause. In so holding, this Court declared that government tracking of a person using GPS technology is a search that must meet constitutional standards of reasonableness. Weaver, 12 N.Y.2d at 444-45. This Court specifically noted that “the massive invasion of privacy entailed by the prolonged use of the GPS device [is] inconsistent with even the slightest reasonable expectation of privacy.” Weaver, 12 N.Y.2d at 444. Moreover, this Court recognized: The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and 6 recorded over lengthy periods possibly limited only by the need to change the transmitting [GPS] 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. Weaver, 12 N.Y.3d at 441-42. Ultimately, this Court held in Weaver that because a warrant was not obtained on a showing of probable cause, the search was unlawful. Weaver, 12 N.Y.3d at 444-45. In the instant matter, the search of appellant’s vehicle was similarly broad and intrusive. Absent an applicable exception, a warrant was required before the government could engage in the GPS tracking of appellant’s car - just as this Court found in Weaver. Though the government might attempt to argue that the search of appellant’s private vehicle falls under the narrow workplace exception to the warrant requirement, as discussed below in Point II, such exception does not allow the government to escape the warrant requirement. Accordingly, the government was 7 required to obtain a warrant in the instant matter prior to conducting the invasive and overwhelming search of appellant’s private vehicle. Allowing the Appellate Division’s determination to stand would erode the constitutional protections of many public employees, including NYSUT members who are teachers or other public servants and use their private vehicles to travel to work assignments in the field. For example, many teachers have work assignments requiring them to travel to a location other than a school. A teacher who also serves as a coach may need to travel in her personal car to a ball field or sports venue other than the school she works at during the school day. Likewise, an educator that conducts home instruction for students, who are on suspension or ill, may be traveling in her private vehicle before and after her work hours. Under the Appellate Division’s ruling, the government employer would be permitted to electronically monitor these individuals via a GPS tracker - which the government would have previously attached to a teacher’s personal car without any notice - during their personal, private time immediately preceding and following the time they are working. Simply stated, the government has no lawful interest or basis for this intrusive, continuous monitoring and probing into an individual’s private life. Such overbroad monitoring defies any reasonable expectation of privacy. Accordingly, as 8 held in Weaver, the Court should find that the government’s conduct was unconstitutional and improper. B. Requiring a Warrant for GPS Use in These Circumstances Ensures that the Individual’s Constitutional Rights are Protected. If the government is permitted to affix a GPS device to a person’s private vehicle without a warrant, based on the circumstances presented here, the courts will have no ability to limit the breadth of the government’s GPS use. It is not that the government can never use GPS in an investigation into work-related misconduct. Rather, the government can use such technology upon a probable cause finding authorizing the use of the GPS device. The warrant requirement will serve to safeguard the essential constitutional rights that are implicated by the use of such intrusive means. As such, it will place the appropriate constitutional check on the government’s use of a sophisticated technology that “is becoming an increasingly routine feature in cars and cell phones.” See Weaver, 12 N.Y.3d at 442. The United States Supreme Court has held “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” O’Connor, 480 U.S. at 717. Rather, “[i]t is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations.” City of Ontario v. Quon, 130 S.Ct. 2619, 2627 (2010). “‘The [Fourth] Amendment 9 guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,’ without regard to whether the government actor is investigating crime or performing another function.” Quon, 130 S.Ct. at 2627 (quoting Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 613-14 (1989)). These principles are in line with this Court’s reasoning in Weaver and support that this Court must reverse the Appellate Division’s decision so as to ensure that appellant’s privacy, and that of other public employees, is not infringed upon in this flagrant, overly invasive manner. 10 POINT II THE WARRANT EXCEPTION FOR WORKPLACE SEARCHES DOES NOT PERMIT THE GOVERNMENT’S WARRANTLESS SEARCH OF APPELLANT’S CAR VIA GPS TRACKING Because of the government’s excessive and unreasonable intrusion into appellant’s private life, the search in the instant matter cannot be categorized as a workplace search. However, even if the search in issue is somehow considered a workplace search, the government’s actions and search of appellant’s private car were still unreasonable in scope and unlawful. This is especially true here, because the government entity that conducted the search was not a supervisor or manager. Accordingly, this Court should reverse the Appellate Division’s decision and repudiate the government’s egregious search. A. The Warrant Exception for Workplace Searches Was Not Intended to Apply to an Investigation Conducted by a Government Entity like the OIG. Under the case law establishing the parameters of workplace searches, it is evident the warrant exception was intended to apply to searches conducted by a supervisor or manager, who is not well-versed in the probable cause standard, and not to a search conducted by a non-employing government entity created to investigate alleged criminal misconduct, such as the OIG. 11 O’Connor v. Ortega, 480 U.S. 709 (1987), and Caruso v. Ward, 72 N.Y.2d 432 (1988), are the respective Federal and State landmark cases concerning workplace searches by a government employer. This Court relied upon and adopted the United States Supreme Court’s approach in O’Connor, 480 U.S. at 724-27, in setting the applicable standards for a workplace search. In the current matter, the Appellate Division cited both O’Connor and Caruso in discussing the reasonableness standard for a work-related misconduct investigation. See Cunningham, 89 A.D.3d at 1350. However, based on O’Connor, the authorization of a search without a warrant or probable cause was not intended to apply under the instant circumstances, where a supervisor or manager is not conducting the search. In O’Connor, 480 U.S. at 717, the Supreme Court permitted a search without a warrant based on its belief that a supervisor would be conducting a search in the public employment setting. Specifically, the Supreme Court held that “[i]t is simply unrealistic to expect supervisors in most government agencies to learn the subtleties of the probable cause standard.” O’Connor, 480 U.S. at 724-25. The Supreme Court reasoned that “requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome.” O’Connor, 480 U.S. at 722. 12 Notably, the Supreme Court in O’Connor, 480 U.S. at 721, distinguished employer searches from other types of searches. Specifically, the Supreme Court recognized that police “and even administrative enforcement personnel[ ] conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceeds,” unlike employers who “most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct.” O’Connor, 480 U.S. at 721. Here, the warrantless search conducted of appellant’s car was not performed by a DOL supervisor or manager, who understandably might not comprehend the “subtleties of the probable cause standard.” See O’Connor, 480 U.S. at 724-25. Instead, the search was performed by OIG investigator James Carroll, who was a police officer for the State of New York for approximately twenty-seven (27) years before joining the OIG (R. 327, 1111). Thus, unlike a supervisor or manager who2 might not understand the ins and outs of probable cause, it is realistic - and expected - that a seasoned, former police officer, who is now a state investigator, would comprehend the probable cause standard and the need for a warrant prior to placing a GPS device on appellant’s personal vehicle. In a pending case this office is currently handling, OIG investigators, who conducted a2 warrantless search by means of GPS, were also former police officers and detectives. 13 Accordingly, this Court should find that the probable cause standard must apply to a GPS search conducted by OIG investigators. B. The Search Was Unreasonable in Scope Because the Government Continuously Monitored Appellant Via GPS During His Private Life. The government’s use of GPS was not limited to during appellant’s work hours. In fact, the government tracked appellant’s movements via a GPS device throughout his personal life. This overly expansive utilization of GPS supports a finding that the scope of the government’s investigation was unreasonable and therefore unlawful. As the Appellate Division correctly recognized, a public employer’s investigation into suspected employee misconduct must be reasonable in both inception and scope. See Cunningham, 89 A.D.3d at 1350 (citing Caruso, 72 N.Y.2d at 437 (1988); O’Connor, 480 U.S. at 725-26). Applying this principle to an investigation concerning alleged theft of time, there is no reasonable justification for the government’s tracking of appellant during his non-work hours. Appellant was neither performing government work nor collecting pay from the government during such personal time. Accordingly, the government’s failure to properly limit the scope of its investigation requires a finding that the GPS evidence must be precluded. 14 POINT III THE OIG’s FUNCTION AS AN INVESTIGATORY AGENCY FURTHER SUPPORTS THAT A WARRANT IS REQUIRED TO CONDUCT A SEARCH VIA GPS As discussed above in Point II, this case does not present a search conducted by a manager or supervisor of the DOL, but rather a warrantless search performed by the OIG. The OIG’s purpose, which is to investigate criminal conduct, further supports the position that the OIG was required to obtain a warrant before it placed the GPS device on appellant’s private car. A. A Warrant is Required Because the OIG Investigates Criminal Allegations That May Result in Criminal Charges and Prosecution. The OIG’s purpose is to investigate criminal activity, such as corruption and fraud, which may ultimately result in criminal prosecution. As such, the OIG has the authority and discretion to both determine if allegations warrant criminal prosecution or further criminal investigation and participate in those criminal investigations. See Executive Law § 53. Considering the OIG’s purpose and authority in criminal matters, constitutional mandates require a warrant for GPS usage in OIG investigations. The OIG’s powers and role in criminal investigations justify the application of the probable cause standard for GPS use, regardless of whether criminal prosecution is a final result. 15 Moreover, “where the search is conducted by the government employer to further a criminal investigation, the traditional requirements of probable cause and warrant are applicable.” Lukas v. TriBorough Bridge and Tunnel Auth., No. CV-92- 3680 (CPS), 1993 WL 597132 at *7 (E.D.N.Y. Sept. 15, 1993). And “[t]raditional Fourth Amendment safeguards applicable in the context of criminal investigations cannot be avoided simply because the agency conducting the search is not a governmental law enforcement agency but a government employer ostensibly supervising its employees.” Lukas, 1993 WL 597132 at *7. Interestingly, the reference in Lukas to a government employer supervising its employees shows that the OIG, which did not supervise appellant in the workplace, is not an employer as the term was imagined and intended in Caruso and O’Connor. Further, the holding in Lukas demonstrates that the OIG, which furthers criminal investigations, cannot escape the probable cause and warrant requirements. Additionally, were this Court to carve out a warrant exception for the OIG’s use of GPS in investigations of public employees, it would set a dangerous precedent as information obtained by OIG may ultimately play a role in a criminal investigations and prosecution. While Executive Law § 54(5) precludes the use of an employee’s statement provided to the OIG or “evidence derived therefrom...in any subsequent criminal prosecution,” the Executive Law does not prevent a criminal 16 prosecutor from using GPS data and other evidence obtained in an OIG investigation which did not result from an employee’s statement. Thus, the Appellate Division’s ruling in conjunction with the Executive Law creates an unconstitutional situation where GPS information obtained by the government without a warrant may ultimately be used against an individual in a criminal proceeding. The constitutional implications of this forseeable scenario merit the reversal of the Appellate Division’s decision. B. The OIG Has the Means to Apply for a Warrant. Under the Executive Law, the OIG has the ability to obtain a warrant based on probable cause in order to use GPS in its investigations - including its 2008 investigation of appellant. While Executive Law § 54 does not specifically reference the OIG’s ability to apply for a warrant, the Executive Law does assure that the OIG has an open line of communication with the police and law-enforcement authorities, and that the OIG plays a role in criminal investigations and prosecution. Specifically, the OIG’s duties and responsibilities include “investigat[ing] complaints...concerning allegations of corruption, fraud, [and] criminal activity...in any covered agency.” Executive Law § 53(1). The Executive Law also charges the OIG with “determin[ing] with respect to such allegations whether...criminal prosecution, or further investigation by an appropriate federal, 17 state or local agency is warranted, and to assist in such investigations.” Executive Law § 53(3). Further, according to the OIG website, when the OIG substantiates complaints of corruption, including criminal acts such as fraud or theft, it will refer its findings to the “appropriate agency for criminal prosecution...”. See http://www.ig.state.ny.us/information/faqs.html (last visited Apr. 17, 2012). Thus, the Executive Law authorizes, and envisions, the OIG working in tandem with the police in relation to investigations arising from an individual’s alleged criminal conduct in the workplace. Because the law establishes a relationship of cooperation between the OIG and other criminal authorities, a warrant requirement is entirely feasible and proper for the OIG. Furthermore, Executive Law § 54 may not prevent the OIG from independently applying for a warrant, without the police or a district attorney’s assistance or intervention. Executive Law § 54(7) states that the OIG “shall have the power to...perform any other functions that are necessary or appropriate to fulfill the duties and responsibilities of office.” This broad language suggests that the OIG can apply for warrants on its own when seeking to utilize GPS technology in an investigation, because it is a necessary power that allows the OIG to fulfill its investigatory responsibilities. This is further supported by the Criminal Procedure Law, which provides that “a local criminal court may, upon application of a police officer, a 18 district attorney or other public servant acting in the course of his official duties, issue a search warrant.” Criminal Procedure Law § 690.05(1) (emphasis added). Arguably, an OIG investigator that intends on placing a GPS device on an individual’s car as part of an investigation is a public servant acting in the course of his official duties. Therefore, because the OIG clearly has the ability and authority to apply for a warrant, the Court need not be concerned with how the OIG will obtain a warrant for GPS use if the Appellate Division’s decision is reversed. As such, the Court should hold that the warrant required applied here, and thus the search in issue was unconstitutional. 19 POINT IV THE EXCLUSIONARY RULE SHOULD BE APPLIED TO EXCLUDE THE ILLEGALLY OBTAINED GPS INFORMATION The exclusionary rule, which was applicable to the administrative hearing in issue, should have barred the introduction of the GPS information. If this Court permits the Appellate Division’s ruling to stand, the OIG and public employers will continue to exploit individuals’ privacy and engage in unconstitutional searches. The exclusionary rule should be applied in the instant matter to preclude the illegally obtained GPS information. A. The Exclusionary Rule Applies to Administrative Proceedings. Pursuant to this Court’s decision in Finn’s Liquor Shop v. State Liquor Auth., 24 N.Y.2d 647 (1969), cert. denied, 396 U.S. 840 (1969), the exclusionary rule would apply to this matter to warrant the preclusion of the GPS evidence in this case. In Finn’s Liquor, 24 N.Y.2d at 662, this Court declared that “[t]he logic of the Mapp rule, which requires the exclusion of evidence in order to deter State officials from engaging in unlawful searches and seizures, applies equally whether the evidence is sought to be used in a criminal trial or an administrative hearing.” This Court, elaborating on this principle, stated: 20 [A] State agency [ ] is obligated to conduct its activities in conformity with the demands of the Constitution. When its agents exceed those limits, it should not be permitted to avail itself of the fruits of such unlawful activity in order to impose sanctions upon the persons whose constitutional rights have been violated. Finn’s Liquor, 24 N.Y.2d at 655. Thus, “when a search is undertaken in violation of the Fourth Amendment, the exclusionary rule applies and the evidence may not form a predicate for the imposition of penalties.” Finn’s Liquor, 24 N.Y.2d at 657. Since Finn’s Liquor, New York courts have applied the exclusionary rule outside of criminal trials, including in the employment context. For example, in Allen v. Murphy, 37 A.D.2d 117, 119 (1st Dep’t 1971), the Appellate Division relied on Finn’s Liquor in overturning the dismissal of two employees on the grounds that their dismissals were based in part on wiretap evidence obtained via an unreasonable search. Accordingly, the exclusionary rule should have been applied in the instant matter to bar the GPS evidence obtained via an unlawful search. B. Applying the Exclusionary Rule to the Instant Matter is Necessary to Deter Future Unlawful GPS Searches. Upholding the Appellate Division’s decision will signal to public employers that a supervisor or manager can simply attach a GPS device to an employee’s private car, without any notice or first instituting any less invasive investigatory measures. In the instant matter, the Appellate Division found the government’s GPS use proper, 21 in part, based on the fact that “traditional methods - such as tailing petitioner - had been tried and had been thwarted.” See Cunningham, 89 A.D.3d at 1351. While that should not justify the government’s utilization of GPS without a warrant here, it does support that tailing or conducting visual surveillance should be required in a disciplinary investigation before the government can seek a warrant and employ the use of GPS. Since O’Connor and Caruso demand that a workplace search be reasonable in scope, this Court should find that the government’s automatic GPS use - without first attempting to conduct visual surveillance or use other traditional, less intrusive investigatory methods - would generally be unreasonable in scope. As O’Connor suggests that supervisors do not understand the probable cause standard, allowing public employers to rely on GPS as a first option in an investigation will result in the same constitutional violations and unlawful invasion of privacy that occurred here. As argued above, once a GPS device is planted on an individual’s personal vehicle, the government will be collecting information about, and have access to, an individual’s whereabouts and conduct during his private time and personal life. The Court should not issue a decision that authorizes managers, or provides supervisors with unfettered discretion, to secretly attach a GPS device to a person’s private property, when other reasonable investigatory methods - such as visual surveillance - are available; and where an investigation can be fashioned in a 22 reasonable manner that limits the scope of the public employer’s investigation and intrusion. Further, as noted in appellant’s brief at page 29, the record does not contain testimony about the OIG’s post-Weaver standards for GPS use. Thus, the OIG has3 not changed its standards for GPS use even after Weaver, nor can we expect the OIG to do so unless this Court takes appropriate action to protect the rights of public employees and private citizens in this matter. The GPS devices used by the OIG allow the government to constantly monitor individuals in their private lives. The Appellate Division was mistaken in commenting that the GPS device in Cunningham was not constantly monitored and that no such capability existed. This is not a true distinction because the GPS device constantly tracked appellant’s whereabouts throughout the day. It is apparent that4 the OIG’s unlawful intrusion into public employees’ lives has continued and will only increase further if the Appellate Division’s decision is affirmed. In the pending case referenced in footnote 2, which arose after the OIG’s 20083 investigation conducted here and following this Court’s 2009 decision in Weaver, the OIG used GPS tracking without a warrant in its investigation of a public employee. In the pending case referenced in footnotes 2 and 3, it was revealed that the OIG also has4 the technological ability to constantly monitor an employee’s location in a car in real time. 23 To ensure that the OIG’s unlawful utilization of GPS in its investigations ceases, this Court should reverse the Appellate Division’s decision and uphold constitutional protections against warrantless searches via GPS. 24 CONCLUSION For the foregoing reasons, this Court should reverse the decision of the Appellate Division, Third Department. Dated: New York, New York June 4, 2012 Respectfully submitted, RICHARD E. CASAGRANDE Attorney for Proposed Amicus New York State United Teachers 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300 By: __________________________ WENDY M. STAR KEITH J. GROSS Of Counsel 25