|Matter of Cunningham v New York State Dept. of Labor|
|2013 NY Slip Op 04838|
|Decided on June 27, 2013|
|Court of Appeals|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and subject to revision before publication in the Official Reports.|
Decided on June 27, 2013
New York State Department of Labor, Respondent.
Corey L. Stoughton, for appellant.
Kate H. Nepveu, for respondent.
New York State United Teachers, amicus curiae.
"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 US at 722; see also id. at 732 [Scalia, J., concurring] [warrantless searches "to investigate violations of workplace rules" do not violate the Fourth Amendment]). In Caruso, we made clear that we would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution (72 NY2d at 437; internal quotation marks omitted). Caruso applied O'Connor to uphold random urinalysis testing of certain police officers. See also Matter of Seelig v Koehler (76 NY2d 87  [upholding urinalysis testing of uniformed correction officers]; Matter of Delaraba v Nassau County Police Dept.(83 NY2d 367  [upholding urinalysis testing of police officers]).
"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place . . . . The search will be permissible in its scope when the measures [*5]adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct"(480 US at 726; citations, internal quotation marks, ellipsis and bracketing omitted).
"GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or 'seeing' by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp" (id. at 441).It took "little imagination" for us to conjure the types of "indisputably private" information that would be "disclosed in the data" from a GPS device planted on a person's vehicle:
"[T]rips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense [*7]attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits" (id. at 441-442; see Jones, 132 S Ct at 955 [citing Weaver for the proposition that "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about [his or] her familial, political, professional, religious, and sexual associations"]).Recognizing that, "[w]ithout judicial oversight, the use of [GPS] devicespresents a significant and, to our minds, unacceptable risk of abuse" (Weaver, 12 NY3d at 447), we held that"[u]nder our State Constitution . . . the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (id.).
"Public employers have an interest in ensuring that their agencies operate in an effective and efficient [*8]manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees" (480 US at 724).O'Connor involved the warrantless search of a government employee's office and seizure of personal items from his desk and file cabinet (see id. at 713). The Supreme Court applied "the standard of reasonableness under all the circumstances" (id. at 725-726) rather than a probable cause standard, and upheld the search. Importantly, in analyzing the Fourth Amendment restraints upon a workplacesearch, the Court stated that it was "essential first to delineate the boundaries of the workplace context" (id. at 715 [emphasis added]).
"The workplace includes those areas and items that are related to work and are generally within the employer's control. At a hospital, for example, the hallways, cafeteria, offices, desks and file cabinets, among other areas, are all part of the workplace. These areas remain part of the workplace context even if the employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board" (id. at 715-716).
"O'Connor applied solely to searches of the workplace. The Supreme Court defined the workplace as 'those areas and items that are related to work and are generally within the employer's control.' Although the term 'work-related' was used by the O'Connor Court, neither O'Connor nor the cases considered by the Court in reaching its [*9]holding involved any area physically outside of the workplace" (Natl. Assn. of Letter Carriers, AFL-CIO v US Postal Service, 604 F Supp 2d 665, 675-676 [SD NY 2009] [emphasis added]).
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Judgment reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Commissioner of Labor for further proceedings in accordance with the opinion herein. Opinion by Judge Smith. Judges Graffeo, Read and Pigott concur. Judge Abdus-Salaam concurs in result in an opinion in which Chief Judge Lippman and Judge Rivera concur.
Decided June 27, 2013