GPS and the Right to Privacy

Last week I wrote that the early rulings of the new Chief Judge of the Court of Appeals, Jonathan Lippman, indicate that a liberal voice has taken the center seat at the Court. Any doubts about this are put to rest by today's ruling in People v. Weaver in which Chief Judge Lippman makes a resounding affirmation of the right to privacy in New York.

Harking back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), Chief Judge Lippman's opinion for the four-judge majority concludes it was unconstitutional for the police, without a warrant, to place a global positioning system (GPS) device inside the bumper of a van and to then continuously monitor the van's movements for the next 65 days. The opinion notes that while a GPS device tracks the vehicle, this tracking information allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on." This type of surveillance, the opinion concludes, requires a search warrant. 

Significantly, too, the opinion explicitly states the ruling is not based on the United States Constitution, but is based solely on Article One § 12 of the State Constitution ("we premise our holding on our State Constitution alone").  This places the ruling beyond United States Supreme Court review. 

This is a major ruling and much will be written about it in the months and years ahead. The opinion breathes new life into state constitutional law, and the 4-3 split illustrates the liberal-conservative fissure on the Court. But for the moment it is best to simply observe the emergence of a strong Chief Judge prepared to boldly lead his court.