A GPS device placed on the family car of a state worker suspected of falsifying time sheets violated his constitutional right to privacy, a New York Civil Liberties Union lawyer told the state's top court Wednesday.
Corey Stoughton said investigators didn't get a warrant, labor department employee Michael Cunningham had no notice of the tracking device and it operated round-the-clock for 30 days, including a weeklong family vacation. The NYCLU's lawsuit claims that was too intrusive to be justified by the limited warrant exception for searches of government employees.
"This was not a workplace search. The difference here is this was the employee's personal family car," Stoughton said, noting the case could affect some 200,000 state workers.
A hearing officer and a divided midlevel court denied Cunningham's request to suppress the GPS evidence and he was fired.
State Assistant Solicitor General Kate Nepveu argued that the GPS use was reasonable under the circumstances, that Cunningham had reported using his car for off-site meetings and that he knew he was under investigation. Earlier attempts failed to address his timesheet problem, she said. The only way to shut off the GPS outside of Cunningham's scheduled workdays would have required physically removing it, she said.
"He had a diminished expectation of privacy," Nepveu said. The only tracking information gathered was the car's location, and information on its off-hours use was not used against him, she said. "This was an investigation of a pattern of conduct."
Since that 2008 investigation, the Court of Appeals has struck down the state police use of GPS to track criminal suspects unless officers get a warrant. That ruling overturned two lower court decisions.
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Its ruling in this case is expected in a month.
Stoughton said that while it wouldn't be the same constitutional issue for a private employer to put a GPS tracker on an employee's personal car, she believes that would be illegal under New York's tort law.
