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

Brief

N.Y.May 29, 2013

To Be Argued by: Corey Stoughton 20 minutes QCourt of ~ppca15 of tbc ~tatc of ~ctu ~ork MICHAEL A. CUNNINGHAM, Petitioner-Appellant -v.- NEW YORK STATE DEPARTMENT OF LABOR, Respondent ON APPEAL FROM THE APPELLATE DIVISION, THIRD DEPARTMENT, Index No. 512036/2011 BRIEF OF PETITIONER-APPELLANT MICHAEL A. CUNNINGHAM COREY STOUGHTON ARTHUR EISENBERG CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300 Attorneys for Petitioner Dated: March 27,2012 New York, NY TABLE OF CONTENTS INTRODUCTION 1 PROCEDURAL HISTORY AND STATEMENT OF THE COURT'S JURISIDICTION 4 FACTS 5 ARGUMENT 8 I. THE GOVERNMENT'S GPS SURVEILLANCE OF THE CUNNINGHAM FAMILY CAR WAS UNCONSTITUTIONAL BECAUSE IT FAILED TO COMPLY WITH THE WARRANT REQUIREMENT 10 II. THE GOVERNMENT'S GPS SURVEILLANCE OF THE CUNNINGHAM FAMILY CAR WAS UNCONSTITUTIONAL EVEN UNDER THE WORKPLACE-SEARCH EXCEPTION TO THE WARRANT REQUIREMENT 19 III. THE EXCLUSIONARY RULE APPLIES TO ADMINISTRATIVE PROCEEDINGS AND SHOULD HAVE BARRED CONSIDERATION OF THE GPS EVIDENCE ...... 23 CONCLUSION 31 1 TABLE OF AUTHORITIES Cases Allen v. Murphy, 37 AD.2d 117, 322 N.Y.S.2d 435 (App. Div.lst Dep't. 1971) 25,28 Barretto v. City of New York, 157 AD.2d 116,555 N.Y.S.2d 382 (2d Dep't 1990) 24 Battaglia v. New York City Transit Auth., 225 AD.2d 384,638 N.Y.S.2d 663 (App. Div.lst Dep't 1996) 25,28 Boyd v. Constantine, 81 N.Y.2d 189 (1993) 23,24,27,28 Burka v. New York City Transit Auth. , 747 F. Supp. 214 (S.D.N.Y. 1990) 28 Caruso v. Ward, 72 N.Y.2d 432 (1988) passim Charles Q. v. Constantine, 85 N.Y.2d 571 (1995) 24 City of Ontario v. Quon, 130 S. Ct. 2619 (2010) 14, 18,21,22 Cracket v. Bratton, 199 AD.2d 1079, 607 N.Y.S.2d 505 (App. Div.4th Dep't 1993) 24 Delaraba v. Nassau County Police Dep 't, 83 N.Y.2d 367 (1994) passim Delia v. City of Rialto, 621 F.3d 1069 (9th Ciro2010) 15 DeMaine V. Samuels, 2000 U.S. Dist. LEXIS 16277 (D. Conn. 2000) 15 Gaglia V. Starr, 59 AD.2d 839, 398 N.Y.S.2d 898 (App. Div.1st Dep't. 1977) 25, 28 Gudema V. Nassau County Police Dep t, 163 F.3d 717 (2d Ciro 1998) 14 In the Matter of Finn 's Liquor Shop et al., 24 N.Y.2d 647 (1969) 23,24,27 Leventhal V. Knapek, 266 F.3d 64 (2d Ciro 2001) 14 Matter of Diane P., 110 AD.2d 354, 494 N.Y.S.2d 881 (App. Div. 2d Dep't 1985) 25 Matter of Shankman V. Axelrod, 73 N.Y.2d 203 (1989) 13 McPherson v New York City Haus. Auth., 47 AD.2d 828, 365 N.Y.S.2d 862 (App. Div.lst Dep't 1975) 25,28 11 Moore v. Constantine, 191 A.D.2d 759,594 N.Y.S.2d 395 (App. Div. 3d Dep't 1993) ....... 14,24 Nat 'l Ass 'n of Letter Carriers, AFL-CIO v. Us. Postal Service, 604 F. Supp.2d 665 (S.D.N.Y. 2009) 15 New Jersey v. T.L.O., 469 U.S. 325 (1985) 19 O'Connor v. Ortega, 480 U.S. 709 (1987) 14, 19,21 Patchogue-Medford Congress of Teachers v. Board ofEduc. of Patchogue-Medford Union Free School Dist, 70 N.Y.2d 57 (1987) 17 Pell v. Board of Ed. of Union Free School Dist. No. l of Towns of Scarsdale and Mamaroneck, 34 N.Y.2d 222 (1974) 27 People v. Weaver, 12 N.Y.3d 433 (2009) 1,8, 10, 11 Seelig v. Koehler, 76 N.Y.2d 87 (1990) 16, 17 Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177 (2d Ciro2005) 14 State V. Campbell, 759 P.2d 1040 (Ore. 1988) 15 State V. Meredith, 96 P.3d 342 (Ore. 2004) 15 Stedronsky v. Sobol, 175 A.D.2d 373,572 N.Y.S. 2d 445 (App. Div. 3d Dep't 1991) 25 United States V. Jones, No. 10-1259,565 U.S. ---- (Jan. 23, 2012) 10, 12,29 Worrell V. Brown, 177 A.D.2d 446,576 N.Y.S.2d 543 (1st Dep't 1991) 24 Constitutional Provisions New York State Const., Art. I, Section 12 10 Statutes Cal. Penal Code § 637 13 N.Y. Agriculture and Markets Law § 20 13 N.Y. Civil Service Law § 75 26 N.Y. CPLR § 7804 4 111 N.Y. CPLR § 5601 5 N.Y. Envirorunental Conservation Law § 71 13 N.Y. Executive Law § 54 13 N.Y. Family Court Act § 1034 13 N.Y. General Business Law § 279 13 Fla. Stat. § 934 13 Haw. Rev. Stat. § 803 13 Minn. Stat. § 626A 13 Okla. Stat., tit. 13 § 176 13 Okla. Stat., tit. 13 § 177 13 Pa.Cons.Stat. § 5761 13 S.C. Code. Ann. § 17-30 13 Utah Code Ann. § 77-23a 13 Other Authorities U.S. Census Bureau, 2010 Annual Survey of Public Employment and Payroll 29 IV INTRODUCTION This case seeks to enforce the constitutional right of New Yorkers to be free from government surveillance by Global Position Service (GPS) devices, established by this Court in People v. Weaver, 12 N.Y.3d 433 (2009). Petitioner Michael A. Cunningham's constitutional rights were violated when the New York State Department of Labor (DOL) placed a GPS device on his personal, family car and continuously tracked his and his family's movements and locations for more than a month. DOL obtained no warrant, provided no notice, and obtained no consent for such a search. Although the purpose of this surveillance was to investigate suspicions that Mr. Cunningham, an employee of DOL, was violating workplace rules by not being where he should have been during working hours, the GPS device tracked his entire family twenty-four hours a day, after business hours, over weekends, and during a week-long family vacation during a period of leave that had been approved in advance by DOL. Records of the family's daily movements, activities and habits obtained from this search were then introduced In an administrative hearing and used to justify Mr. Cunningham's termination. Despite the Court's clear statement in Weaver that warrantless GPS surveillance is an unprecedented and constitutionally unjustifiable invasion of privacy, the Appellate Division, Third Department affinned the decision of the 1 Hearing Officer not to exclude the GPS evidence from the administrative proceeding. In so doing, the Appellate Division reached a number of faulty legal conclusions. First, the Appellate Division applied the wrong constitutional standard to find that no warrant was required, treating this search as falling within the narrow exception to the warrant requirement for workplace searches conducted by a government employer. Although DOL was Mr. Cunningham's employer, this search was not a search of the workplace or of workplace-related property provided by the employer. Nor was it a generally applicable, administrative search of a class of government employees with reduced expectations of privacy (i.e., urinalysis drug testing of elite police or corrections officers). Rather, it was a targeted search of the movements of an individual civilian employee's personal vehicle. The government should not be permitted to invade the personal privacy of its employees and their families in this manner in order to investigate allegations of time theft. Because the government was required to obtain a warrant issued upon probable cause, and did not, this search was unconstitutional. Second, even assuming the GPS search of Mr. Cunningham's personal family car could have been treated as a workplace search, the Appellate Division should have held that such surveillance is constitutionally unreasonable because it was excessive in scope. This Court's decision in Caruso v. Ward, 72 N.Y.2d 432 2 (1988), requires that the scope and intrusiveness of any workplace search be reasonable relative to the government's legitimate need; in this case, the need to investigate allegations of time theft. The inherent intrusiveness of GPS surveillance - as well as the fact that, in this case, DOL searched its employee's private family car; provided no notice of the possibility of such searches as a condition of employment; tracked the family during non-business hours, on weekends and during a holiday about which it had advance notice; and did so continuously, twenty-four hours per day, for more than one month - renders it unconstitutional when balanced against the government's desire to investigate this type of employee misconduct. Finally, the Appellate Division erred in suggesting that the exclusionary rule does not apply in this case. It has long been established that the exclusionary rule applies not only to criminal prosecutions but to administrative hearings adjudicating the rights of New Yorkers, when its application would have a meaningful deterrent effect on unconstitutional conduct. As the primary - indeed, in practice, the exclusive - means by which the right to be free from unconstitutional searches is vindicated, the exclusionary rule must be applied here to effectuate its purpose of deterring government actors from engaging in unconstitutional acts, particularly when those unconstitutional acts involve 3 extraordinarily intrusive and easily abused electronic surveillance technology like GPS. As a result, Petitioner respectfully requests that the Court reverse the Appellate Division, vacate DOL's decision to terminate Mr. Cunningham, and direct that there be a new administrative process, purged of any unconstitutionally obtained evidence. PROCEDURAL HISTORY AND STATEMENT OF THE COURT'S JURISIDICTION Petitioner filed this Article 78 petition, including an affirmation and memorandum of law in support, in Supreme Court, Albany County on December 6, 2010. (R. 6). Respondent moved pursuant to CPLR § 7804(g) to have the petition transferred to the Appellate Division. (R. l). Petitioner did not oppose that motion and, on January 25, 2011, Supreme Court, Albany County ordered that the case be transferred. Id. Respondent served Petitioner with notice of entry of Supreme Court's order on February 22,2011. (R. 3). On November 23, 2011, the Appellate Division, Third Department, upheld the Hearing Officer's determination, in a split decision. The three-judge majority held that they were "unpersuaded that OIG or respondent [DOL] acted unreasonably" in conducting the warrantless GPS surveillance of the vehicle. (R. VIII, Slip Op. at 6). Although the majority acknowledged that "the GPS evidence gathered in this proceeding would have likely been excluded from a criminal trial 4 under Weaver," it found that it should not be excluded here because DOL "clearly had a responsibility to curtail the suspected ongoing abuse of work time, not only to preserve its integrity, but also to protect taxpayers' money." Id. (Slip Op. at 5). The majority further suggested that application of the exclusionary rule would have no deterrent effect, because DOL personnel did not personally conduct the GPS search but rather "refer[red] the matter to alG for investigation." Id. Two judges dissented, arguing that the GPS surveillance was "so broad and intrusive as to defy a finding of reasonableness." Id. (Slip Op. at 7). The dissent further argued that "deterring this type of intrusive conduct outweighs the detrimental impact on the process of determining the truth," such that "the evidence should have been suppressed at his hearing." Id. Petitioner filed a notice of appeal on December 15,2011, pursuant to CPLR 560l(a) and 560l(b)(1). (R. I). FACTS The following uncontested facts are drawn from the record presented to the Hearing Officer in the proceeding challenged herein. At approximately 10 a.m. on June 3, 2008, investigators from the Office of the State Inspector General (Olïf) placed a GPS tracking device to the personal, family car of Petitioner Michael Cunningham, at the behest of Andrew Adams, Associate Commissioner for Human Resources at DOL, for the purposes of investigating allegations of time theft. (R. 5 19, 252-53, 1111). On June 20, 2008, investigators replaced the first GPS device with a new device to continue monitoring the vehicle. (R. 1117). That device remained on the car until July 8, 2008. (R. 1122). The GPS devices collected information about the whereabouts of the Cunningham family car each day, noting how long the car was stopped at each location. (R. 1114-15, 1119-20, 1123-27; R. 1240-1251).1 The device recorded the location of the car outside of normal business hours and on weekends. (See, e.g., R. 1241-42 (recording the location of the car on Saturday and Sunday, June 7-8); R. 1119 (on Saturday and Sunday June 14-15); R. 1246-47 (on Saturday and Sunday, June 28-29); R. 1244 (on Saturday, June 21, and at 7:36 a.m. on Monday, June 23); R. 1246 (at 6:29 pm on Thursday, June 26)). OIG's report indicated that it was aware that Mr. Cunningham was in Massachusetts on annualleave for the week of June 30. (R. 995-96) (showing annualleave taken for June 30, July 1, July 2 and July 3)). The GPS device showed that the car was out of state during that week, but continued to record its whereabouts. (R. 1247-48). DOL does not dispute that no 1 The Appellate Division majority suggested "[t]he GPS devices were not constantly monitored," (R. VII (Slip Op. at 5)), but this is misleading and irrelevant. Even if no person was "constantly monitoring" the data from the devices in real time, it is undisputed that the devices themselves "constantly monitored" the movements of the family car 24 hours per day, seven days a week, for over a month, and created a record of that information, which is now part of the record in this case. (R. 1114-15, 1119-20, 1123-27; R. 1240-1251); (R.347). The prospect of the government amassing vast quantities of such recorded data, which paints a detailed portrait of a person's life and is available to be mined for years to come, lies at the core of GPS technology's threat to individual privacy. Indeed, the automated nature of GPS surveillance, and the resulting precision and persistence of its capacity to track human activity, is one of the things that distinguishes it from human surveillance and makes it constitutionally problematic. 6 notice was provided to Mr. Cunningham about this search specifically or about the possibility that employees could be subject to such surveillance. (R. 1534). The Department of Labor then sought to terminate Mr. Cunningham from his position as Director of the Staff and Organizational Development, a position he held for more than 20 years. (R. 781). A hearing was held in front of Hearing Officer Jeffery M. Selchick. (R. 780). Mr. Cunningham objected to the use of the GPS evidence as the product of an unlawful search under Article I, Section 12 of the New York State Constitution. (R. 794-809). The Hearing Officer heard arguments and ruled that the evidence should not be excluded because the exclusionary rule did not apply in a work-related administrative hearing. (R. 29). The Hearing Officer also questioned whether, notwithstanding Weaver, GPS tracking constitutes a search but ultimately did not rule on the question. (R. 26) ("[T]he Hearing Officer finds that the question of whether the OSIG's use of GPS devices amounted to an illegal search and/or seizure under the New York State Constitution is a question more appropriate for a New York court of competent jurisdiction.") ). After a hearing on the merits of the case, the Hearing Officer found that DOL had met its burden in 11 of the 13 charges before him and accordingly found that termination, the penalty sought by the state, was appropriate. (R. 90-93). In all 7 but 2 of the 11 charges where DOL was found to have met its burden, the Hearing Officer relied on evidence obtained from the GPS tracking device. (R. 68-88). ARGUMENT In People v. Weaver, the Court held that GPS tracking is an intrusive search requiring a warrant pursuant to the New York State Constitution. 12 N.Y.2d 433 (2009). Although DOL did not obtain a warrant to monitor the Cunningham family's car, the Appellate Division held that this surveillance is constitutionally reasonable under the narrow exception to the warrant requirement for workplace searches of government employees. But that exception applies in only two circumstances: first, searches of the workplace, or of physical extensions of the workplace such as employer-issued, workplace-related property, on the theory that a person has a reduced expectation of privacy in such non-personal places and things; and second, generally applicable administrative searches of particular sub- classes of government employees with sensitive security positions and, therefore, reduced expectations of privacy, conducted on notice as a condition of employment. Here, DOL clandestinely searched the personal, family car of a single government employee, who bore no public safety responsibilities that would trigger any diminished expectation of privacy. The workplace-search doctrine has no application. Thus, because DOL did not obtain a warrant, this search was unconstitutional. 8 Even if, arguendo, the workplace-search doctrine did apply, this particular search would still be constitutionally unreasonable because it fails the test for such searches established in Caruso v. Ward, 72 N.Y.2d 432 (1988), which requires that workplace searches not be "excessive in scope" relative to the government's interest in policing workplace misconduct. DOL tracked the daily movements of the Cunningham family's personal car without notice for more than a month, including evenings, weekends and even a week of personal vacation. This is excessive in scope relative to DOL's interest in uncovering purported time theft and, therefore, is not justified under this narrow exception to the warrant requirement. Because the GPS search of the Cunningham family car was unconstitutional, the Appellate Division should have found that the evidence obtained from it should have been excluded from consideration by the Hearing Officer. It has long been the case in New York that the exclusionary rule applies in administrative proceedings, as in criminal proceedings, because the purpose to deter unconstitutional acts by government agents remains the same in both contexts. To carve out an exception to the exclusionary rule in this case not only contradicts this well-established precedent but would ensure that violations of New Yorkers' constitutional rights go undeterred and unpunished. Given the propensity for widespread abuse of GPS and other electronic surveillance technology, and the extraordinary consequences 9 of such surveillance for individual pnvacy, the Court should ensure that the exclusionary rule applies in administrative hearings to deter the government from infringing on the constitutional rights of public employees. I. THE GOVERNMENT'S GPS SURVEILLANCE OF THE CUNNINGHAM FAMILY CAR WAS UNCONSTITUTIONAL BECAUSE IT FAILED TO COMPLY WITH THE WARRANT REQillREMENT. In People v. Weaver, this Court held that government use of a GPS device to track a motor vehicle is a search requiring a warrant issued on probable cause. 12 N.Y.3d 433, 444-45 (2009). On January 23, 2012, the United States Supreme Court unanimously endorsed the holding in Weaver, finding that GPS surveillance of a vehicle is a search under the Fourth Amendment. United States v. Jones, No. 10-1259, 565 U.S. ---- (Jan. 23,2012).2 Notwithstanding these decisions, the government argues and the Appellate Division held that no warrant was required here because this search was carried out against a government employee suspected of workplace misconduct rather than a person suspected of criminal activity. This conclusion ignores the heart of this Court's holding in Weaver; namely, that the "massive invasion of privacy entailed by the prolonged use of the GPS 2 The New York State Constitution's provision banning unreasonable searches and seizures mirrors that of the U.S. Constitution: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," NEW YORK STATE CaNST., ART. I, SECTION 12. 10 device [is] inconsistent with even the slightest reasonable expectation of privacy." 12 N.Y.3d at 439. Modern GPS technology allows for "any person or object, such as a car, [to] be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions," revealing "the whole of a person's progress through the world, into both public and private spatial spheres." Id. at 436. Specifically: Disclosed in [GPS] data ... will be trips the indisputably private na- ture 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. Id. at 441-442. Justice Sotomayor echoed this Court's language in her crucial concurrence in Jones, adding the observation that GPS surveillance implicates not only privacy but risks deterring people from freely exercising their rights of association and expression: Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring-by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered 11 discretion, chooses to track-may alter the relationship between citizen and government in a way that is inimical to democratic society. 565 U.S. --- (Sotomayor, J., concurring) (Slip Op. at 3-4) (internal citations omitted). Especially troubling is the notion that "the government can store such records and efficiently mine them for information years into the future." Id. In this case, DOL continuously tracked the progress of the Cunningham family through the world, into both public and private spheres, for a prolonged period of more than five weeks, using the uncannily accurate technology of a GPS device. The device tracked the family's movements and activities twenty-four hours a day, seven days a week, in the evenings, on weekends, and during a one- week period when DOL was well aware that the family was on vacation. In all, more than 75% of the time the GPS device was attached to Mr. Cunningham's car was purely private, family time not during working hours and thus had nothing to do with the workplace. DOL's GPS tracking device revealed information about where Mr. Cunningham and his family went after work and on weekends, what restaurants they ate at, what places they visited, where they vacationed, and how fast they drove. (R. 1114-15, 1119-20, 1123-27; 1240-1251). It created the potential for revealing exactly the type of information - such as religious and political affiliations, medical treatments, or after-hours job interviews - that the Court specifically condemned in Weaver. 12 DOL did not obtain a warrant for this search.' As the Appellate Division noted, "the GPS evidence gathered in this proceeding would have likely been excluded from a criminal trial" based on this Court's holding in Weaver. (R. VI (Slip Op. at 4». Nonetheless, the Appellate Division reasoned, the workplace- search exception to the warrant requirement excuses DOL's failure to get a warrant. But this exception to the warrant requirement applies only in two circumstances, neither of which fits this case. The first circumstance is searches of the workplace itself, or of workplace- issued property that can be seen as an extension of the workplace. Although this Court appears not to have considered such a case, its decision in Caruso v. Ward, 72 N.Y.2d 432 (1988), explicitly adopted the U.S. Supreme Court's decision in o 'Connor v. Ortega, 480 U.S. 709 (1987), which involved a search of an 3 The Appellate Division majority noted in a footnote that "[a]n administrative agency does not have the power to apply for an ex parte warrant absent a clear statutory grant of authority." (R. IV Slip Op. at 3 n. 2 (citing Matter of Shankman v. Axelrod, 73 N.Y.2d 203, 206 (1989)). The legislature appears not to have granted such authority to the Office of the State Inspector General. See Executive Law § 54. Of course, the question of whether or not DOL or OfG had statutory authority to obtain a warrant has no bearing on the question of whether they were constitutionally required to obtain one before conducting this search. Absent statutory authority, alG would either have to cooperate with law enforcement to apply for warrants for GPS surveillance or to ask the legislature to grant it authority to do so independently. In other contexts, the legislature has not hesitated to grant warrant-application authority to administrative agencies. See, e.g., Agriculture and Markets Law § 20-a; Environmental Conservation Law § 71- 0525; Family Court Act § 1034; General Business Law § 279-g. Of course, the legislature may choose not to reconsider its decision not to grant alG such authority. Several state legislatures have expressly limited authority to obtain warrants for GPS devices to law enforcement agencies acting pursuant to a validly obtained warrant. See, e.g., Cal. Penal Code § 637.7; Utah Code Ann. §§ 77-23a-7, 77-23a-15.5; Minn. Stat. §§ 626A.35; Fla. Stat. §§ 934.06, 934.42; S.C. Code. Ann. § 17-30-140; Okla. Stat., tit. 13 §§ 176.6, 177.6; Haw. Rev. Stat. §§ 803-42, 803-44.7; 18 Pa.Cons.Stat. § 5761. 13 employee's office. Critical to the Supreme Court's decision to uphold that search was its observation that "[g]overnment offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home." 480 U.S. at 725 (noting also that "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"). Similarly, in City of Ontario v. Quon, the Supreme Court upheld a search of an employee's work-issued pager messages only because such a search of government property "was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap of his home phone line," 130 S. Ct. 2619, 2631 (20 l O), thus making clear the distinction between permissible searches of employer-provided objects and impermissible searches of private property." 4 See also Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177 (2d Ciro 2005) (upholding searches of teachers' classrooms); Leventhal V. Knapek, 266 F.3d 64 (2d Cir. 2001) (upholding searches of office computers); Gudema V. Nassau County Poliee Dep 't, 163 F.3d 717 (2d Ciro 1998) (upholding the seizure of a police officer's badge case and its contents); Moore V. Constantine, 191 A.D.2d 759,594 N.Y.S.2d 395 (App. Div. 3d Dep't 1993) (upholding search of police lockers). All of these cases turn on the fact that the property is both owned by the employer and physically located within the workplace. 14 No New York court has ever held that the government may search an employee's personal car without a warrant.' And several federal courts have expressly noted that the workplace-search doctrine must be limited to the workplace itself. See Delia v. City of Rialto, 621 F.3d 1069, 1076 nA (9th Ciro 2010) ("The Quon-O'Connor workplace warrant exception, however, has no application here. Although the search at issue in this case arose as a result of a workplace investigation, defendants were not seeking to search Delia's workplace environment, but his home"), cert. granted 132 S.Ct. 70 (2011); Nat 'I Ass 'n of Letter Carriers, AFL-CIO V. Us. Postal Service, 604 F. Supp.2d 665, 675 (S.D.N.Y. 2009) (holding that "O 'Connor applied solely to searches of the workplace" and, therefore, a warrant and probable cause may be required when a search is performed by a government employer outside of the workplace or employer-owned property). 5 Indeed, in the only cases from any jurisdiction that Petitioner-Appellant has been able to identify involving a government employer searching an employee's car, the search was upheld only because it was an employer-issued car and was, therefore, the property of the government and the employee had notice of regulations reserving the right to inspect company-issued equipment at any time. DeMaine V. Samuels, 2000 U.S. Dist. LEXIS 16277, 16-18, 23 (D. Conn. 2000) ("The fact that the A&O Manual authorizes searches of police-issued equipment at any time for reasonable purposes and any personal property located on or within department property, including a state-issued automobile, weighs heavily in the determination of the reasonableness of the search here."); State V. Meredith, 96 P.3d 342, 345 (Ore. 2004) (upholding GPS surveillance of the employer-issued vehicle, during work hours only and while on public lands, of a fire prevention employee suspected of setting fires, and contrasting those facts with an earlier Oregon Supreme Court decision, State V. Campbell, 759 P.2d 1040 (Ore. 1988), which found similar surveillance of a privately owned vehicle unconstitutional). 15 The second circumstance the workplace-search exemption has applied to is a generally applicable, administrative search of a class of government employees with reduced expectations of privacy. See Delaraba v. Nassau County Police Dep Jf, 83 N.Y.2d 367 (1994) (upholding testing of a drug interdiction squad); Seelig v. Koehler, 76 N.Y.2d 87 (1990) (upholding testing of New York City corrections officers); Caruso, 72 N.Y.2d at 432 (upholding testing of officers in the Organized Crime Control Bureau of the NYPD). These cases turn on the fact that law enforcement and corrections personnel have reduced expectations of privacy by virtue of their special police powers and unique public safety functions. "Not all governmental employees enjoy the same level of expectation of privacy. The privacy expectation of any particular group is markedly diminished by such factors as the employees' voluntary pursuit of a position they know to be pervasively regulated for reasons of safety and the employees' acceptance of severe intrusions upon their privacy." Seelig, 76 N.Y.2d at 91; see also Delaraba, 83 N.Y.2d at 372 (noting that the officers tested were "voluntary members of an elite organization whose primary purpose is drug interdiction"); Caruso, 72 N.Y.2d at 440 (noting that the officers tested "have a very diminished expectation of privacy due to their pursuit of service in the elite unit"); Seelig, 76 N.Y.2d at 90 (noting that "[c]orrection officers are traditionally 16 among the most heavily regulated groups of governmental employees and also among those who accept the greatest intrusions upon their privacy"). In contrast to these elite law enforcement and corrections officers, Mr. Cunningham was Director of Staff and Organizational Development for the Department of Labor, a straightforward managerial position in the state bureaucracy. There is no basis for finding any diminished expectation of his privacy. Indeed, this Court's decision in Patchogue-Medford Congress of Teachers v Board ofEduc. of Patchogue-Medford Union Free School Dist., which found drug testing of probationary public school teachers unconstitutional, suggests that this category of acceptable warrantless workplace searches is narrowly limited to public employees that operate dangerous instrumentalities. 70 N.Y.2d 57,68-69 (1987). These cases also tum on the notion that a generally applicable scheme of administrative drug searches, with safeguards against excessive discretion and abuse, does not raise the same privacy implications as an ad hoc, clandestine invasion of the private sphere of an individual employee. See, e.g., Seelig, 76 N.Y.2d at 95-96 (describing the careful administration of the administrative testing scheme); Patchogue-Medford, 70 N.Y.2d at 70 (emphasizing the need for "safeguards ... to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion"). 17 It is also crucial that such schemes provide notice to employees and prospective employees that exposure to the administrative search is a condition of employment. See Caruso, 72 N.Y.2d at 440 (upholding warrantless testing where the possibility of such a search was "known in advance"); Delaraba, 83 N.Y.2d at 372 (noting that the police officers subject to search had "prior knowledge of the testing"); see also Quon, 130 S. Ct. at 2631 (upholding a search of a police officer's government-issued pager only because the officer "was told that his messages were subject to auditing"). No such notice was provided here. Thus, these cases provide no basis for the Appellate Division's excusing of DOL's failure to obtain a warrant. The only distinction between this case and Weaver is that the government conducted this search for the purpose of investigating workplace misconduct rather than criminal activity. The different purpose, however, does not endow the government with additional power to search. Indeed, it would be odd in the least for the Court to hold that the government had greater constitutional authority to pursue time theft than it does to protect public safety. Rather, this case turns on the Cunningham family's expectation of privacy in their personal, family car. This expectation of privacy is no different than Mr. Weaver's expectation of privacy in the vehicle the State of New York tracked without a warrant when it was investigating him for possible crimes. The 18 recognition in Weaver and Jones of the extraordinary intrusiveness of GPS technology cautions strongly against expanding the scope of the workplace-search exception far beyond its previously held contours. Thus, the Court should reverse the Appellate Division and find that the warrantless GPS monitoring of Mr. Cunningham's personal, family car was unconstitutional because it was conducted without a warrant. II. THE GOVERNMENT'S GPS SURVEILLANCE OF THE CUNNINGHAM FAMILY CAR WAS UNCONSTITUTIONAL EVEN UNDER THE WORKPLACE-SEARCH EXCEPTION TO THE WARRANT REQUIREMENT. Even if the Appellate Division had been correct to apply the workplace- search exception and find that no warrant was required, it should have found that the invasive GPS surveillance of the Cunningham family car was constitutionally unreasonable. Warrantless workplace searches must be justified both "at inception" and "in scope." Caruso, 72 N.Y.2d at 437; O'Connor, 480 U.S. at 726. A warrantless workplace search will be permissible in its scope "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive." O'Connor, 480 U.S. at 726 (citing New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)). The burden is on the government to justify a search under this test. Delaraba, 83 N.Y.2d at 374. In finding that DOL satisfied this test, the Appellate Division ignored both this Court's description of the extensive scope of GPS 19 tracking in Weaver and the particularly intrusive circumstances of the search in this case. The reasons why this search was "excessively intrusive" relative to the government's objective of combating time theft are, in substance, the same five reasons Petitioner presented in the prior section for why the warrant requirements should apply to this case. First, as the previous section's discussion of Weaver and Jones illustrates, GPS tracking reveals an extraordinary wealth of data about a person's purely private sphere and allows the government to keep, store and mine that information. This includes information that an employee would naturally want to keep, and has every legitimate expectation of keeping, private from his employer, such as trips to new job interviews, medical professionals, attorneys, or a mosque, church or synagogue. Second, as is discussed extensively in both the Statement of Facts and Part I, supra, the vast majority of the government's continuous surveillance of the Cunningham car took place outside of working hours and thus was wholly irrelevant to DOL's purported need to monitor Mr. Cunningham's whereabouts during the workday. This overbroad temporal scope amplifies the inherently intrusive nature of GPS technology and renders this search excessively intrusive. 20 Third, DOL searched the Cunningham family's private car, not a workplace or a government-issued vehicle. As argued above, most cases upholding workplace searches arise out of searches of the workplace itself, suggesting, by way of contrast, that courts should be more protective when the exception is applied outside of the physical workspace. See, e.g., O 'Connor, 480 U.S. at 725; Quon, 130 S. Ct. at 263l. Fourth, the Cunningham family was not on notice that their private car was subject to search by Mr. Cunningham's employer. Again, as noted above, this Court has only upheld warrantless searches of government employees where the employees have been on notice about the possibility of such searches. See Caruso, 72 N.Y.2d at 440; Delaraba, 83 N.Y.2d at 372; see also Quon, 130 S. Ct. at 2631. DOL's failed to provide any warning to its employees that their families' privacy could be invaded in this manner. Finally, Mr. Cunningham, as a managerial employee of the DOL, is categorically unlike the employees with unique public safety responsibilities whose diminished expectation of privacy has sometimes led courts to uphold certain workplace searches of government employees. The cases in which this Court has upheld a workplace search involve elite police or corrections officers with diminished expectations of privacy arising out of the unique responsibilities they bear specialized as law enforcement officials. See, e.g., Caruso, 72 N.Y.2d at 440; 21 Delaraba, 83 N.Y.2d at 372; see also Quon, 130 S. Ct. at 2631(finding it highly relevant that the employee whose government-issued pager was searched was a law enforcement officer "who would or should have known that his actions were likely to come under legal scrutiny"). Mr. Cunningham's managerial position, by contrast, was not sensitive and in no way created an expectation that his constitutional right to be free from unreasonable government surveillance would be compromised. DOL cannot justify, in the name of establishing whether an employee is where he should be during working hours, such an extensive intrusion into the private sphere of a government employee and his family, especially given the inherent possibility of tracking information about members of a government employee's family whose expectations of privacy are not diminished in any way by their relative's government employment. As the prior section argues, these are reasons why the warrant and probable cause requirements should apply to such searches, but even if the Court rejects that position, they are without a doubt reasons why this search should be found constitutionally unreasonable even under the general exception to the warrant requirement for workplace searches. 22 III. THE EXCLUSIONARY RULE APPLIES TO ADMINISTRATIVE PROCEEDINGS AND SHOULD HAVE BARRED CONSIDERATION OF THE GPS EVIDENCE. Understanding that the warrantless use of the GPS device here was unconstitutional, the question remains whether there exists any remedy for the violation of Mr. Cunningham's rights. The Appellate Division suggested that the exclusionary rule should not apply to the type of administrative hearing that led to Mr. Cunningham's termination," This Court's cases, however, clearly hold that the exclusionary rule forbids any government agency from benefitting from evidence it obtained in violation of the constitution, whether that agency seeks to benefit in a criminal or administrative proceeding. See Boyd v. Constantine, 81 N.Y.2d 189 (1993); In the Matter of Finn's Liquor Shop et al., 24 N.Y.2d 647, 662 (1969), cert. denied 396 U.S. 840 (1969). 6 It is not entirely clear whether the Appellate Division majority intended to articulate a rule that the exclusionary rule never applies in hearings such as this one, or whether it was engaged in a more case-specific analysis. At one point, the majority casts its decision as a categorical choice between application of "the reasonableness and exclusionary tests" in public employee disciplinary hearings, see (R. VII (Slip Op. at 5 n. 3)), suggesting that the "reasonableness" test applies. Id. At other points, however, the majority seems to be rendering a decision based on unique factors of this case - e.g., when the majority held that DOL's attenuated role in this surveillance rendered exclusion of this evidence futile from a deterrence perspective (a conclusion that was contrary to the Hearing Officer's findings and, therefore, was reached in error, see infra note 10). To the extent the majority was suggesting an individual case-specific analysis of the application of the exclusionary rule, the Cami should reject such an approach, as its lack of clarity and predictability for government officials considering illegal surveillance eviscerates the deterrent effect of the rule. Rather, the Court should abide by the clear rule of Boyd and Finn's Liquor, and hold that no government agency may benefit from evidence gained through unconstitutional means in any proceeding, criminal or administrative. 23 As this Court has held, "[t]he logic of the Mapp [v. Ohio] 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 on an administrative hearing." Finn's Liquor Shop et al., 24 N.Y.2d at 662 (applying the exclusionary rule to bar consideration of illegally seized sales slips showing violations of state liquor laws in an administrative hearing to revoke an establishment's liquor license). More recently, in Boyd, the Court reaffirmed the general application of the exclusionary rule to administrative hearings, including employment-related hearings, while at the same time limiting the rule's application to cases in which the agency that seeks to use the unconstitutionally obtained evidence was the one that caused the evidence to be gathered in the first place. 81 N.Y.2d at (1993).7 Lower New York courts have frequently applied the exclusionary rule in administrative proceedings, including employment disciplinary hearings like the 7 The application of the exclusionary rule in employment hearings again arose, but was not directly addressed, in Charles Q. v. Constantine, in which the Court held that evidence obtained in violation of a CPL 160.50 sealing order need not be suppressed in an employment termination hearing. 85 N.Y.2d 571, 575 (1995). The Court did not question the premise that, as a general matter, the exclusionary rule applies in such hearings; rather, it based its decision on a prior holding that such evidence need not be suppressed in a criminal hearing. Id. 24 one at issue in this case. 8 In Allen v. Murphy, for example, the Appellate Division overturned the dismissal of two employees on the grounds that their dismissals were based in part on a wiretap obtained without a warrant, relying on Finn's Liquor. 37 A.D.2d 117, 119, 322 N.Y.S.2d 435 (App. Div.1st Dep't. 1971) (per curiam). In Gaglia v. Starr, the Appellate Division excluded unconstitutionally obtained evidence from a work-related proceeding related to the firing of a construction inspector for allegedly taking bribes. 59 A.D.2d 839, 398 N.Y.S.2d 898 (App. Div.lst Dep't. 1977). In McPherson v New York City Haus. Auth., the Appellate Division reversed a hearing officer's finding of misconduct on one of several charges because it depended upon evidence that had been excluded as unconstitutional during a related criminal prosecution.47 A.D.2d 828, 365 N.Y.S.2d 862 (App. Div.1st Dep't 1975). More recently, in Battaglia v. New York City Transit Auth., a trial court applied the exclusionary rule to a city transit worker's employment disciplinary hearing, although the decision was later reversed based on the terms of a collective bargaining agreement. 225 A.D.2d 384, 8 There are many more examples of cases from across the Departments of the Appellate Division in which the court assumed the application of the exclusionary rule to public employee disciplinary hearings, but declined to exclude evidence because it was in fact constitutionally obtained. See, e.g., Cracket v. Bratton, 199 A.D.2d 1079, 607 N.Y.S.2d 505 (App. Div.4th Dep't 1993) (considering the exclusion of evidence from a drug test); Moore v. Constantine, 191 A.D.2d 769, 594 N.Y.S.2d 395 (App. Div. 3d Dep't 1993) (considering the exclusion of evidence seized from an employee's locker); Barretto v. City a/New York, 157 A.D.2d 116, 555 N.Y.S.2d 382 (2d Dep't 1990) (drug test); Worrell v. Brown, 177 A.D.2d 446,576 N.Y.S.2d 543 (1st Dep't 1991) (same). 25 638 N.Y.S.2d 663 (App. Div.lst Dep't 1996) (affirming No. 25523/90, 1994 N.Y. Misc. LEXIS 183 at *12 (N.Y. Sup. Ct. Mar. 4, 1994)).9 The Civil Service Law itself recognizes the proper role of exclusion from disciplinary hearings as a remedy for investigators' violation of public employees' constitutional rights. Section 75(2), which creates a statutory right to counsel for public employees during questioning pertaining to allegations of workplace misconduct, notes that when that right is violated, "any and all statements obtained from said questioning as well as any evidence or information obtained as a result of said questioning shall be excluded" from a disciplinary hearing. Civil Service Law § 75(2). In finding that the exclusionary rule did not apply to this hearing, the Appellate Division majority wrongly analogized this case to the facts of Boyd. That case involved an administrative hearing to terminate a State Trooper after he was discovered in possession of drugs during a traffic stop by local police. Although 9 The Appellate Division has created a narrow exception for administrative hearings in which the state's interest in using the information involves the protection of the welfare of children. See Matter of Diane P., 110 A.D.2d 354, 494 N.Y.S.2d 881 (App. Div. 2d Dep't 1985) (declining to apply the exclusionary rule in child protective proceedings in Family Court); Stedronsky v. Sobol, 175 A.D.2d 373 572 N.Y.S.2d 445 (App. Div. 3d Dep't 1991) (relying on Diane P. to uphold a hearing officer's reliance on arguably illegally-obtained admissions of student sexual abuse to terminate a teacher). This exception reflects a judgment that a child's welfare trumps the need to protect individual privacy from unreasonable searches and seizure. The Appellate Division majority in this case relied in part on Stedronksy to hold that the exclusionary rule does not apply in this administrative proceeding. (R.V. (Slip Op. at 4)). This Court has never passed on the legitimacy of the child-welfare exception, (the Court denied leave to appeal in Stedronsky, 79 N.Y.2d 864 (1991)), and it need not do so here, as the exception obviously has no application to this case and the Appellate Division majority was plainly wrong to rely on it. 26 the Court acknowledged that the exclusionary rule generally applies, it did not apply in that case because the State Police sought to use the evidence, yet the unconstitutional search was carried out by Buffalo City Police in the course of a routine traffic stop, not at the behest of the State Police. Since no adverse consequence would befall the agency that violated the law (Buffalo City Police), precluding the State Police from using the evidence would serve no deterrent purpose. As the. Court noted, "The Buffalo City Police could not have foreseen, when they searched the vehicle, that defendant would be subject to an administrative disciplinary proceeding by the Division of State Police ... Thus, only negligible deterrence would result from the exclusion of the evidence." Id. at 196. In this case, the same agency that authorized and caused the search to be executed sought to use the evidence in an administrative proceeding. The fact that OIG personnel carried out the search is irrelevant, as the Hearing Officer found - 27 and no one disputes - that the oro was merely acting as DOL's arm. (R. 19).10It is not the case that oro "could not have foreseen, when they searched the vehicle, that [Cunningham] would be subject to an administrative disciplinary hearing," Boyd, 81 N.Y.2d at 196, since that was the precise purpose of oro's investigation. This case is no different than Finn's Liquor, when the Court excluded evidence from a State Liquor Authority hearing, even though it was not that agency that obtained the evidence, but the police acting the agency's behest. 24 N.Y.2d at 662. The crucial question is not what personnel carried out the search, but rather for whose benefit and at whose direction? The deterrence rationale of the exclusionary rule, therefore, compels its application to this case, since there is a direct link 10 The factual finding of the Hearing Officer on this matter was clear, but the Appellate Division appears to have ignored or overlooked it, in error. See Pell v. Board of Ed. of Union Free School Dist. No.lof Towns of Scarsdale and Mamaroneck, 34 N.Y.2d 222, 231 (1974) (internal citations omitted) (holding that factual findings made by the Hearing Officer are entitled to deference from both this Court and the Appellate Division, "beyond seeing to it that there is substantial evidence" in the record to support those findings). Nor does the record create any doubt as to that finding. Andrew Adams, the Associate Commissioner for Human Resources at DOL, testified that he and John Dormin, the Director of Special Investigations at DOL, initiated OIG's investigation of Mr. Cunningham. (R. 252-53 (testimony of Andrew Adams 148:25- 149:20)). And a "Case Activity Report" prepared by alG on the day it first attached the GPS device to Mr. Cunningham's car states that it took this action "[b]ased upon the attached email from Andrew Adams, Associate Commissioner for Human Resources." (R. 1111). 28 between the illegal gathering of the GPS evidence and its use by DOL in the d lvi h . 11un er ying eanng. The Appellate Division majority also suggested that there would be no "meaningful deterrent effect" because "an investigator from alG indicated that currently (i.e., after the Court of Appeals' decision in Weaver) different standards exist within alG for GPS use." (R. VIII (Slip Op. at 6 n. 5)). In fact, the investigator provided no testimony whatsoever about OIG's post-Weaver standards for GPS use, and the majority does not cite any part of the record to suggest otherwise.V Even if an Ol'G investigator had testified that the agency implemented new or better standards after Weaver, that change would only illustrate the importance of the deterrent effect created by application of the exclusionary rule in lIThe Appellate Division majority also cited the federal case Burka v. New York City Transit Auth., 747 F. Supp. 214 (S.D.N.Y. 1990), which drew a distinction between "law-enforcement- related" and "work-related" hearings, categorically declining to apply the exclusionary rule to the latter. Id. at 220. This distinction was based on the federal court's observation that the plaintiffs in that case "cited no instance in which evidence was excluded, under the search and seizure clause, in a 'work-related' disciplinary hearing or decisionmaking process." Id. But the federal district court in Burka - whose decision, needless to say, is not binding on this court - simply got it wrong. Although the Burka plaintiffs might have failed to bring them to the court's attention, the many cases cited above establish that both before and afier Burka, the exclusionary rule frequently has been applied by New York courts to work-related administrative hearings. See, e.g., Allen, 37 A.D. at 119; Gaglia, 59 A.D.2d at 839; McPherson, 47 A.D.2d at 829; Battaglia, 1994 N.Y. Misc. LEXIS 183 at 12. And this Court expressly rejected Burka'« conclusion in Boyd. 81 N.Y.2d at 196 (noting that the Court was "applying the deterrence rationale" of the exclusionary rule in that case). 12 The only portion of the record the Appellate Division could have been referring to is the testimony of OIG Investigator James Carroll, who asked Petitioner's attorney to clarify whether, in asking a question about OIG's procedure for conducting GPS surveillance, the attorney was referring to the procedure in place at the time of the hearing or in 2008, when the surveillance of Mr. Cunningham occurred. (R. 413). Mr. Carroll did not testify that there were any changes since 2008, nor did he describe what such changes might have been. 29 Weaver and highlight the need for the Court not to undermine that effect in this case by giving OIG carte blanche to use GPS surveillance on public employees. To retreat from the exclusionary rule in this context would be to overturn Finn's Liquor, undermine the deterrence rationale of the rule, and substantially erode constitutional protections against illegal searches and seizures. This is particularly dangerous in the context of GPS surveillance, which, as Justice Sotomayor recently noted, is especially prone to governmental abuse: [B]ecause GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility .... [T]he Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. Jones, 565 U.S. --- (Sotomayor, J., concurring) (Slip Op. at 3) (internal citations and quotations omitted). The exclusionary rule remains one - perhaps the only - crucial check on the power of New York State to track the movements of the more than 200,000 people in its employ, as well as the many more thousands of New Yorkers employed by counties and municipalities.l ' Unless the Court concludes that the exclusionary rule applies, thus compelling the government to obtain a warrant for searches of its employees, any public employee's individual movements could be subject to remote monitoring - and permanent recording - at 13 Census data indicate that more than 233,600 individuals were on the payroll of New York State in 2010. See U.S. Census Bureau, 2010 Annual Survey of Public Employment and Payroll, http://www2.census.gov/govs/apes/10stny.txt. 30 the sole and unfettered discretion of any supervisor. Considering the increasingly widespread availability and low cost of GPS and mobile phone-based tracking technology, the Court should be vigilant in deterring such violations of the constitutional rights of public employees. For these reasons, the Court should find that the Appellate Division majority erred in suggesting that the exclusionary rule does not apply to the administrative hearing in this case. CONCLUSION For the foregoing reasons, the Court should reverse the Appellate Division's decision, declare that the Respondent's actions of placing a GPS tracking device on the Petitioner's car violated his rights under the New York Constitution, declare that the exclusionary rule should have been applied to the administrative proceeding approving Petitioner's termination, and remand for a new proceeding devoid of unconstitutionally obtained evidence. 31 Respectfully submitted, ~ COR STOUGHTON ART R EISENBERG CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 Counsel for Petitioner Dated: March 27,2012 New York, N.Y. 32