Cunningham v. New York State Department of Labor

997 N.E.2d 468, 21 N.Y.3d 515

• Court: New York Court of Appeals
• Decided: June 27, 2013
• Status: Published

Opinions

OPINION OF THE COURT

Smith, J.

The State of New York, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee’s car. Under People v Weaver (12 NY3d 433 [2009]) and United States v Jones (565 US —, 132 S Ct 945 [2012]), the State’s action was a search within the meaning of the State and Federal Constitutions. We hold that the search did not require a warrant, but that on the facts of this case it was unreasonable.

I

Petitioner became a state employee in 1980, and in 1989 was appointed as Director of Staff and Organizational Development of the State Department of Labor. In 2008, the Department began an investigation relating to petitioner’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because, after petitioner eluded an investigator who was following his car, the Department referred petitioner’s conduct to the Office of the State Inspector General. The Inspector General’s investigation resulted in a second disciplinary proceeding, the one now before us.

As far as the record shows, the first step in the Inspector General’s investigation was to attach a GPS device to petitioner’s car, without petitioner’s knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car’s movements for a month, including evenings, weekends and several days when petitioner was on vacation in Massachusetts. Later, the Inspector General pursued other avenues of investigation: surveillance of an apartment building petitioner was suspected of visiting during working hours, subpoenas for E-ZPass records and interviews of petitioner and his secretary.

After receiving the Inspector General’s report, the Department brought new charges against petitioner, of which 11 were sustained by a Hearing Officer. Four of those 11 charges were dependent on evidence obtained from the GPS device. As to three charges, the GPS information showed that petitioner’s times of arrival at and departure from his office were inconsistent with the number of hours he claimed, on time records he submitted, to have worked. A fourth charge was based on petitioner’s approval of time records showing his secretary was working during hours when the GPS information showed that he was visiting her home. Four other charges were supported by GPS evidence and other evidence as well; they related to the time when petitioner claimed that he and his secretary returned home from a business trip to Syracuse. Both GPS information and E-ZPass records showed they had returned in the middle of the workday, not at the end of it as documents submitted or approved by petitioner had said. The GPS information was irrelevant to the remaining three sustained charges.

The Commissioner of Labor affirmed the Hearing Officer’s determination, and terminated petitioner’s employment. Petitioner brought this CPLR article 78 proceeding to challenge that ruling. On transfer from Supreme Court, the Appellate Division, with two Justices dissenting, confirmed the Commissioner’s determination and dismissed the petition (Matter of Cunningham v New York State Dept. of Labor, 89 AD3d 1347 [3d Dept 2011]). Petitioner appeals as of right, pursuant to CPLR 5601 (a) and (b) (1), and we now reverse the Appellate Division’s judgment.

II

We decided in Weaver, and the Supreme Court decided in Jones, that the attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect’s movements, was a search subject to constitutional limitations. Weaver and Jones establish that what happened in this case was a search also, within the meaning of article I, § 12 of the New York Constitution and the Fourth Amendment; the State does not contend otherwise. But neither Weaver nor Jones presented the question of when, if ever, a GPS search is permissible in the absence of a search warrant (see Weaver, 12 NY3d at 444-445 [the search “comes within no exception to the warrant requirement, and the People do not contend otherwise”]; Jones, 565 US at —, 132 S Ct at 954 [holding the argument that the search without a warrant was “reasonable—and thus lawful” to be forfeited]). Here, the State argues, and we agree, that this search is within the “workplace” exception to the warrant requirement recognized in O’Connor v Ortega (480 US 709 [1987]) and Matter of Caruso v Ward (72 NY2d 432 [1988]).

O’Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The Supreme Court upheld the search. The plurality opinion explained:

“In our view, 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. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable” (480 US at 722; see also id. at 732 [Scalia, J., concurring] [warrantless searches “to investigate violations of workplace rules” do not violate the Fourth Amendment]).

In Caruso, we made clear that we would follow O’Connor in deciding the constitutionality of searches conducted by public employers, whether for “noninvestigatory, work-related purposes” or for “investigations of work-related misconduct,” under the New York as well as the Federal Constitution (72 NY2d at 437 [internal quotation marks omitted]). Caruso applied O’Connor to uphold random urinalysis testing of certain police officers. (See also Matter of Seelig v Koehler, 76 NY2d 87 [1990] [upholding urinalysis testing of uniformed correction officers]; Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367 [1994] [upholding urinalysis testing of police officers].)

Petitioner here does not challenge the existence of a workplace exception to the warrant requirement, but argues that it is inapplicable because the object of the search in this case was petitioner’s personal car. Petitioner asks us to confine the exception to “the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace” (brief of petitioner-appellant at 13). We reject the suggestion, at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.

The O’Connor plurality observed that such items as a personal photograph on an employee’s desk, or a personal letter posted on an employee bulletin board, are part of the workplace (480 US at 716). The location of a personal car used by the employee during working hours does not seem to us more private. Petitioner was required to report his arrival and departure times to his employer; this surely diminished any expectation he might have had that the location of his car during the hours he claimed to be at work was no one’s concern but his. We are unpersuaded by the suggestion in the concurring opinion that, on our reasoning, a GPS device could, without a warrant, be attached to an employee’s shoe or purse (concurring op at 527). People have a greater expectation of privacy in the location of their bodies, and the clothing and accessories that accompany their bodies, than in the location of their cars.

The reasons that led the O’Connor Court to dispense with the warrant requirement—the serious disruption that such a requirement would entail, and the burden it would impose on supervisors who “are hardly in the business of investigating the violation of criminal laws” (480 US at 722 [plurality op]; see also id. at 732 [Scalia, J., concurring])—apply no less to an investigation of the kind at issue here than to the investigations in O’Connor and in Ontario v Quon (560 US 746 [2010]), which involved a scrutiny of text messages on an employer-issued pager. We thus conclude that when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search.

The Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to petitioner’s car.

III

While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search. We conclude that the State has failed to demonstrate that this search was reasonable.

The O’Connor plurality, quoting from Terry v Ohio (392 US 1, 20 [1968]) and New Jersey v T. L. O. (469 US 325, 341-342 [1985]), summarized the approach of courts to the question of reasonableness in this way:

“Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place ....

“The search will be permissible in its 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” (480 US at 726 [citations, internal quotation marks, ellipses and brackets omitted]).

Under O’Connor, a workplace search based on a reasonable suspicion of employee misconduct is “justified at its inception” (480 US at 726 [plurality op]; id. at 732 [Scalia, J., concurring]). The search in this case clearly meets that test. Petitioner’s employer had ample grounds to suspect him of submitting false time records.

We cannot find, however, that this search was reasonable in its scope. It was, in the words of the T. L. O. Court quoted in O’Connor, “excessively intrusive.” It examined much activity with which the State had no legitimate concern—i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity—especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, 24-hour surveillance for a full month. The State managed to remove a GPS device from petitioner’s car three times when it suited the State’s convenience to do so—twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?

It is true that none of the evidence used against petitioner in this case resulted from surveillance outside of business hours. Ordinarily, when a search has exceeded its permissible scope, the suppression of items found during the permissible portion of the search is not required (see United States v Martell, 654 F2d 1356, 1361 [9th Cir 1981] [excessive length of detention did not taint search where nothing new was learned “during the unlawful portion” of the detention]; United States v Clark, 891 F2d 501, 505 [4th Cir 1989] [same]). But we hold that rule to be inapplicable to GPS searches like the present one, in light of the extraordinary capacity of a GPS device to permit “[c]onstant, relentless tracking of anything” (Weaver, 12 NY3d at 441). Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings (see Matter of Boyd v Constantine, 81 NY2d 189 [1993]).

The consequence of suppression in this case is not to preclude the State from disciplining petitioner. As the majority and the dissenting Justices in the Appellate Division agreed, only four of the 11 counts on which petitioner was found guilty depended on GPS evidence, and only those four charges need be dismissed. As to the others, the GPS evidence was either substantially duplicated by E-ZPass records or was wholly irrelevant. Whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor on remand.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, charges one, two, three and six against petitioner dismissed, and the matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.