In the Matter of Michael A. CUNNINGHAM, Appellant,
NEW YORK STATE DEPARTMENT OF LABOR, Respondent.
[Copyrighted Material Omitted]
[974 N.Y.S.2d 898] New
York Civil Liberties Union Foundation, New York City (Corey L. Stoughton,
Arthur Eisenberg and Christopher Dunn of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
Richard E. Casagrande, New York City (Wendy M. Star and Keith J. Gross of counsel), for New York State United Teachers, amicus curiae.
[997 N.E.2d 470] 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 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009) and United States v. Jones, 565 U.S. ----, 132 S.Ct. 945, 181 L.Ed.2d 911 (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.
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 [974 N.Y.S.2d 899] [997 N.E.2d 471] 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 A.D.3d 1347, 933 N.Y.S.2d 432 [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.
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 N.Y.3d at 444-445, 882 N.Y.S.2d 357, 909 N.E.2d 1195 [the search " comes within no exception to the warrant requirement, and the People do not contend otherwise" ]; Jones, 565 U.S. 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 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) and Matter of Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 530 N.E.2d 850 (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 U.S. at 722, 107 S.Ct. 1492; see also id. at 732, 107 S.Ct. 1492 [Scalia, ...