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What if all new cars came equipped with GPS tracking devices on the undercarriage, and everyone could spy on everyone else? Or what if you could willy-nilly put a device on your neighbor's car to see where he went?

The expectation of privacy afforded under the federal and state constitutions would prohibit such acts, right?

But what if police use GPS technology in an investigation, and they slap a device on the back of a suspect's car without a warrant?

The constitutionality of such a case involving a Watervliet man who was convicted of burglary after State Police tracked him for 65 days is before the Court of Appeals, the state's top court. Judges heard nearly 45 minutes of arguments Tuesday and kept the debate lively by peppering attorneys with hypotheticals and privacy situations. A ruling is expected in about six weeks.

The court raised the "Big Brother" issue, and judges repeatedly asked defense attorneys and a prosecutor about situations where tracking was out of control and devices were on everyone's cars, regular citizens as well as suspects.

North Greenbush attorney Matthew Hug, who represents defendant Scott Weaver, 41, insisted the use of a tracking device requires a warrant "because of abuse" if police were allowed to use it unregulated.

Weaver was convicted of burglary and attempted grand larceny in connection at a Kmart in Colonie and sentenced to 21/3 to 7 years. He claimed he was deprived of his constitutional rights because the GPS, known as a Q-ball in police jargon, on his bumper was not excluded as evidence. He is free pending appeal. The Appellate Division, in a 4-1 ruling last June, upheld the conviction. Weaver was in the courtroom but declined comment until the appeal is decided.

Co-defense counsel Trey Smith of Troy said that, if not regulated, police could follow "those who visit a mosque or those who go to an anti-war rally."

Associate Judge Victoria A. Graffeo said "reasonableness would have to be applied."

"If an officer wants to learn about your life, he can follow you around," Associate Judge Robert S. Smith noted. He and other jurists said GPS is a technological wonder that police will probably employ more and more.

Chief Judge Jonathan Lippman said "really, what you have here is the technology that replaces police work." He said Hug was suggesting "this is just the beginning and has the potential to be the Big Brother society we read about."

Hug cited case law centering on "a heightened expectation of privacy" under state and federal constitutions.

Senior Associate Judge Carmen Beauchamp Ciparick pointed out surveillance cameras have become a "fact of life," so privacy has been infringed.

"My objection is the placing and tracking of that device for 65 days with no warrant," Hug said.

Christopher Horn, an assistant district attorney and special counsel to District Attorney David Soares, argued that federal appeals courts have upheld the constitutionality of police use of GPS devices.

Associate Judge Eugene F. Pigott Jr. suggested, tongue-in-cheek, that people could put a "no trespassing" sticker on their bumper to ward off cops.

On a serious side, Pigott said that by obtaining a warrant would allow a judge to decide if probable cause exists.

"My whole point is it doesn't constitute a search while in public," Horn retorted. Obtaining a warrant "would unduly weaken law enforcement's duty to solve crimes."