As for the defendant’s claim under the New York Constitution and his contention that state guarantees are broader than federal ones, the court rejected that. Rather, it read various Court of Appeals rulings as adopting the same “reasonable expectation of privacy” standard that it believed foreclosed the federal claim.

In dissent Justice Leslie E. Stein rejected the notion that changes in technology have no bearing on Fourth Amendment analysis. To the contrary, she reasoned that, even if one were working within the “reasonable expectation of privacy” framework, new technologies can breach prevailing expectations:

[ W]hile the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued on probable cause . . . .

At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable.


Federal Endorsement With a Major Caveat

While the legal controversy over GPS is relatively new to New York, courts around the country have been grappling with it for several years. On the federal side, the Supreme Court has never addressed whether the Fourth Amendment regulates the use of GPS devices. In 1983, however, it decided a case that involved a form of electronic tracking, and that decision has guided subsequent lower federal court rulings.

In United States v. Knotts7 federal agents investigating drug activity obtained the consent of a chemical company to place a “beeper” inside a container of chemicals used to manufacture illegal drugs. When a suspect purchased chemicals from the manufacturer, it gave him the container with the beeper. The federal agents then tracked the movement of the container until it ended up on the private property of another person. The agents subsequently raided the property, located the container along with evidence of a drug-manufacturing operation, and used the seized materials to obtain a conviction of the property owner. The property owner’s challenge to the legality of the use of the beeper then ended up before the Court.

In an opinion by Chief Justice William Rehnquist, the Court hewed to its traditional “reasonable expectation of privacy” analysis and its prior cases holding that people have a diminished expectation of privacy when traveling in automobiles on public streets. And in doing so, it rejected the notion that enhanced surveillance abilities changed the analysis:

Visual surveillance from public places along [the driver's] route or adjoining [the property owner's] premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of [the driver's] automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory facilities bestowed upon them at birth with such enhancements as science and technology afforded them in this case.

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