New York Court of Appeals: Cunningham v. N.Y. Dep’t of Labor

This appeal addressed a public employer’s use of GPS tracking on an employee’s vehicle, whether a warrant is required for such action, and whether the search here was reasonable.

The petitioner, Michael Cunningham, was an employee of the State Department of Labor (“State”). Suspecting that Petitioner was submitting false time reports to conceal unauthorized absences from work, the state Inspector General was brought into an investigation and attached a GPS device to Petitioner’s vehicle without his knowledge. After tracking Petitioner’s vehicle for two months and surveying his apartment and E-ZPass records, the State brought eleven charges against Petitioner, with four of the charges exclusively based on the GPS tracking. Based on the charges, Petitioner was terminated. The appellate division affirmed the termination, and Petitioner appealed.

Petitioner argued that, without a search warrant, the use of the GPS was an impermissible search and that the results of the search must be suppressed. While the attachment of a GPS to a vehicle to track a suspect’s movements is a search subject to constitutional limitations, a warrant is not required if the workplace exception is invoked. Under the workplace exception, a public employer can conduct a warrantless search to investigate work-related misconduct. Petitioner argued the exception should be limited to the workplace itself and to property that is an extension of the workplace. The Court rejected this argument, instead holding that an employee who chooses to use his car during the business day fits into the workplace exception.

However, even if a search, as here, does not require a warrant, the search is only constitutional if reasonable. The reasonableness of a search is based on whether the action was justified at inception and “whether the search as actually conducted is reasonably related in scope to the circumstances which justified” the interference. While the employer in this case had sufficient reasons to distrust Petitioner, the search was not reasonable in scope because it tracked activity, such as all evenings and weekends, that did not concern the State’s investigation. The Court thus held that, because of the relentless tracking capability of a GPS, a search is unreasonable where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours. Therefore, the four charges dependent on the GPS search were dismissed.

View Full Decision on Westlaw

2013 WL 3213347, N.Y. Slip Op. 04838 (2013)

Leave a Reply