Last May, in a groundbreaking decision, the New York Court of Appeals held that a search warrant, supported by probable cause, must be issued before a GPS tracking device may be affixed to a motor vehicle to track the vehicle’s movements on public streets and highways. The decision, however, was silent on the nature or form of the warrant or the statute that would authorize the warrant to be signed. Thus, the question arises whether existing legislation permits a search warrant for a GPS device or whether a court has the inherent power to authorize it. This article will discuss these issues and whether legislation may be needed to clarify the circumstances under which GPS orders are issued.

In People v. Weaver,1 the Court of Appeals joined other state and federal courts in confronting new forms of technology and whether the use of this technology constitutes a search requiring a search warrant. For example, in Kyllo v. United States,2 the Supreme Court held that the use of a thermal imaging device to detect patterns of heat emanating from a private dwelling constitutes a search that requires a search warrant. The Court concluded that when the police use the sense-enhancing technology to obtain any information regarding the interior of a house that cannot otherwise be obtained without a physical intrusion into the building, the police have conducted a search. Thus, the police should have obtained a search warrant.

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