For a guy whose political connections weighed heavier than his judicial experience in winning appointment as the state’s top judge, Court of Appeals chief Jonathan Lippman just wrote a hell of a civil liberties decision.
In a 4-3 split decision, Lippman today issued the majority opinion that found police violated both a defendant’s state constitutional protections against unreasonable searches, along with his right to privacy by planting a secret tracking gadget on his car.
The case stems from a 2005 case in upstate Latham in which state cops – without getting a warrant — hid a GPS device (dubbed a “Q-Ball” in cop-speak) on defendant Scott Weaver’s van for 65 days as they tracked him to a meat market and a K-Mart where burglaries had taken place.
In his opinion, Lippman said it was time for constitutional law to catch up with a technology that allows virtually limitless surveillance.
“The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy,” wrote Lippman for the majority.
Lippman also invoked some proud state constitutional history, pointing out that New York lawmakers decided back in 1938 that the right to privacy extends to telephones which at the time could be wiretapped without a warrant. It took the U.S. Supreme Court another 30 years to reach the same decision.
Lippman said the latest tracking gizmos require similar judicial treatment:
“GPS is not a mere enhancement of human sensory capacity,” he wrote, “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.”
Left unchecked, he suggested, the devices could become Big Brother’s most powerful tool yet:”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.”
Lippman was joined in the majority by Judges Carmen Beauchamp Ciparick, Eugene Pigott Jr. and Theodore Jones Jr.
The majority ruling won quick applause from the New York Civil Liberties Union which wrote an amicus brief in the case. “New York’s highest court has stood up for privacy and due process in the 21st Century,” said executive director Donna Lieberman. “Placing a GPS device on a car is like allowing an invisible police officer to ride in the back seat. The court today rejected that practice without the oversight of a judge and probable cause.”
On the dissenting side were Robert Smith, Victoria Graffeo and Susan Read who said the conviction should stand. Smith – a Pataki appointee — wrote that the police were simply extending their right to lawfully observe the suspects, “The attempt to find in the Constitution a line between ordinary, acceptable means of observation and more efficient, high-tech ones that cannot be used without a warrant seems to me illogical, and doomed to fail.” In her own dissent, Read wrote that the majority ruling “unnecessarily burdens” police and courts.
A spokesman for the state police told the Associated Press that the GPS tracking ploy “is a non-routine technique” but that officials will comply with the ruling.
Lippman, who has spent only a few years on the bench, is a lifelong friend and neighbor of Assembly Speaker Shelly Silver who, as a Voice report by Wayne Barrett in Februaryestablished, worked all of his political magic to get his pal appointed earlier this year by Governor Paterson.
Which is a reminder that even the crassest political deals can sometimes yield good laws.