You sit at home, knowing that your spouse is cheating, knowing that they are out drinking and driving, knowing that they are acting against the best interest of your children. What can you do? Global Positioning Systems, or GPS, allows us to find our way around with turn by turn directions making our commute easier and more enjoyable. This technology is also available for tracking purposes. Can you put a GPS tracking system on your spouse’s car? Yes. Can the information obtained from that Tracking System be used against that spouse?
The issue is “Electronic Communication” (EC) in order to have admissibility of EC it must be established that it was not “intercepted” and that it is in fact EC. The Controlling law is CPLR 4506; and Penal Law 250.00. Use of a Tracking Device itself is permissible as there is no “eavesdropping” or interception of communication. The ideology here is that technological advancements have made it possible for a person to obtain information that they could obtain by simply physically following the spouse. The fact is that EC is admissible for what it is, as there is not “interception” of any communication; the EC is not admissable to prove anything in particular, only for “what it is.”
The placement of a tracking Device on a spouse’s car is placed on a vehicle as a security measure, not as a “personal tracking device” as the device tracks the whereabouts of the vehicle not the person. So, use of the device is not an infringement on privacy.
If the vehicle to be tracked is a “joint car” or your sole property then the placement of the device is permissible. Frankly, it’s your car, at least in part, so track it if you want. However; if you place the device on a vehicle that is not yours at all, this evidence may very well be inadmissible as it may constitute “trespass to chattel.”
So, let’s say it your car, in order to put this information in evidence it needs to (1) assert interest in the property, (2) state the reason for such evidence. The latter is the tricky part, as the evidence can only be admitted to show the whereabouts of the vehicle and does not explicitly imply any wrongdoing. Possible “misuse of vehicle;” the fact is, once it is in – it’s in.
Most of the available precedent is in regards to unlawful searches, there is however some interesting decisions of record that address the legal ideology of “Admissibility of Electronic Communication” is of record.
Gurevich v. Gurevich, 24 Misc.3d 808: The factual predicate is that in a wife's matrimonial action against her husband, wife sought to introduce as evidence e-mails she had obtained from husband's e-mail account, using his password after parties had physically separated. Court held that held that the exclusionary rule providing for exclusion of evidence obtained in violation of eavesdropping statute did not preclude admission of husband's e-mails. This court looks at the legislative history for Penal Law section 250.00 for guidance. In a memorandum from the State of New York Executive Chamber, it states that “[t]his bill amends the Penal Law and the Criminal Procedure Law to conform with the requirements for the interception of wire, oral and electronic communication” (L. 1988, c. 744 legislation at 000006). It is this court's understanding from the reading of the statute, legislative history and case law that the purpose of Penal Law section 250.00 is to prohibit individuals from intercepting communication going from one person to another.
CPLR 4506: The law states that the contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law may not be received in evidence in any trial, hearing or proceeding before any court; provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.
Penal Law section 250.00(6) States that "Intercept or Access" is the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment, except when used by a telephone company in the ordinary course of its business or when necessary to protect the rights or property of such company. The statute specifically 250.05 defines EC "(c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object;"
People v. Kramer, 92 N.Y.2d 529: An “electronic communication” is generally any non-aural communication, not expressly excluded from the definition, which is transmitted “in whole or in part” by a wire, radio, electromagnetic, photo electronic or photo-optical system.
Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 [S.D.N.Y.2008]: CPLR 4506 seems to limit its application to the contents of the overheard or recorded communication not electronic communication. However, the U.S. District Court further stated that Penal Law section 250.05 explicitly includes “electronic communication.”
Moore v. Moore, N.Y.L.J., August 14, 2008, at 26, col. 1 [Sup. Ct., New York County]: in this fact pattern the husband sought to suppress material from the hard drive of a laptop computer, used by the family members, that was found by the wife in the trunk of her husband's car. The court in Moore held that Penal Law section 250.05 did not apply to the facts presented because “[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications.” ( id.). The communication was saved to the hard drive by the husband and the wife's “subsequent access to that material downloaded and saved to the hard drive of the computer was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05”
So, your spouse is out there, in your car, doing things that they shouldn’t be doing; track it and get a lawyer; get the best!