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Court upholds GPS tracker on worker’s car

ALBANY, N.Y. — A midlevel New York court on Wednesday upheld the state use of a tracking device on an employee’s private car to investigate whether he was skipping work and falsifying time sheets.

The Appellate Division panel split over whether that secret Global Positioning System tracking in 2008 violated Michael Cunningham’s constitutional privacy rights.

The three-judge majority said the state Labor Department, where Cunningham was director of staff and organizational development for 20 years, had reasonable grounds to start the GPS tracking because Cunningham was disciplined previously for false time records and officials suspected it was continuing. They also concluded that using the device for a month, in an investigation conducted by the Office of Inspector General, was reasonable.

“A search conducted by a public employer investigating work-related misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion,” Justice John Lahtinen wrote. The labor department “clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers’ monies.”

Lahtinen noted that traditional methods like tailing Cunningham failed, and he was suspected of using his personal car during working hours for some of the suspected abuse. “He could hardly have been surprised to be under investigation,” he wrote.

Justices Robert Rose and John Egan Jr. agreed.

Two judges dissented, saying the GPS use was warranted at first, but tracking the family car for a month was too broad and intrusive to be reasonable.

“In our view, the GPS evidence … was obtained by an unconstitutional search and, therefore, the charges sustained by virtue of that evidence must be reversed,” Justice Edward Spain wrote. Justice Elizabeth Garry agreed with Spain.

Cunningham was fired last year after a hearing officer concluded he claimed pay for hours when he wasn’t working.

New York Civil Liberties Union attorney Corey Stoughton, who argued Cunningham’s case, said Wednesday it will be appealed to New York’s top court, which they expect to see things differently.

“The big issue is they tracked his movements and that of his family 24 hours a day without any of them knowing about it,” Stoughton said. “Three judges think that simply by virtue of working for the government people waive their rights to privacy in the movements of their personal car.”

Asked whether a private employer could similarly put a tracker on a worker’s car, Stoughton said it might be cause for an invasion-of-privacy tort, a civil complaint, but the constitution doesn’t prevent it, and the result might vary among states and jurisdictions. The constitutional limitations apply to the government, she said.

The New York Court of Appeals ruled in 2009 that police cannot place GPS trackers on crime suspects’ vehicles without first getting a court warrant showing probable cause that the drivers are up to no good.

The midlevel Appellate Division had also upheld the GPS use in that criminal case, where more rigid standards pertain, and was reversed, Lahtinen noted. The U.S. Supreme Court recently agreed to hear another criminal case involving a tracking device, he wrote.

John Milgrim, spokesman for state Inspector General Ellen Biben, said they are reviewing the decision and continue to investigate state employee time abuse cases to protect taxpayers.