By Tom Jackman
Washington Post Staff Writer
Thursday, March 13, 2008
When Fairfax County police were trying to catch a man last month who had molested 11 women, they examined the Virginia sex offender registry and found a possible suspect. They looked at his background, which included a series of similar assaults, and his residence, which was not far from where the attacks were occurring.
Then, to try to catch him in the act, police slipped a small Global Positioning System device inside the bumper of the van driven by the suspect and began tracking him -- without a search warrant and without consulting a prosecutor.
The tactic, officers say, was an almost instant success. The GPS device placed the van driven by David L. Foltz Jr., 40, in the vicinity of a sexual assault Feb. 5. And when officers began surveilling Foltz the next day, a Fairfax detective saw him drag a woman into a dark area in Falls Church and attack her. The officer rescued the woman and arrested Foltz.
Foltz's attorney, Chris Leibig, said yesterday in Falls Church General District Court that placing the tracking device on the vehicle was a violation of Foltz's protection against unreasonable search and seizure. Arlington County General District Court Judge Richard J. McCue disagreed, denying Leibig's motion to suppress police testimony about events that occurred after the device was placed on Foltz's van.
In the preliminary hearing that followed, a 46-year-old Falls Church woman testified that she was grabbed from behind and pulled into a dark area. Detective Matthew Charron said he saw the attack and knocked Foltz off the woman. McCue certified Foltz's charges of abduction with intent to defile and sexual battery for the Arlington grand jury, which meets next week.
Foltz has not been charged in any of the 11 other similar assaults that have occurred in Fairfax and Alexandria, but police said no similar attacks have happened since he was arrested.
Officers had been working to solve the attacks, which began in August in Alexandria and continued in the western area of the city and in the eastern part of Fairfax County, near Falls Church and Annandale. In nearly every assault, a man wearing a mask snatched a woman who was walking by herself. The assailant sometimes punched and molested the victims before running away.
Investigators began scanning the state's sex offender registry for possible suspects, Fairfax Detective Eric Stallings said, and Foltz's was one of many names being checked. But when a retired Fairfax detective called to say that Foltz had committed crimes similar to the recent attacks -- approaching from behind, knocking the victims to the ground, molesting them -- police took a closer look.
Court records show that Foltz was arrested in 1990 for a series of such attacks and confessed to a 1986 rape near his family's home on Lewis Place. He was convicted of burglary and forcible rape in the 1986 case, and he served 17 years in connection with both cases before being paroled last March.
Stallings said he had asked a detective from the police department's electronic surveillance section, Jack Kirk, to place a GPS device on the van Foltz used for work. Kirk testified that it took approximately three seconds to do so while the van was parked in front of Foltz's home in the 3100 block of Lewis Place on Feb. 1. A second vehicle was not targeted because it was in the driveway, on private property, Kirk said.
The detectives said they did not ask a prosecutor or a judge for permission to place the device on the van. They also did not begin actively monitoring the van until Feb. 5, when it appeared to be moving slowly through neighborhoods, Kirk said. "The person driving that van was hunting," Kirk said. "Looking for victims."
Leibig said the issue raises concerns about "the power of the government, that you can track anybody like that for as long as you want."
Arlington Assistant Commonwealth's Attorney Fran O'Brien said Leibig was using a "scare tactic, the 'Big Brother' argument." She cited case law stating that "a person traveling on a public thoroughfare has no reasonable expectation of privacy. . . . There's been no search, no seizure." McCue cited the same argument in rejecting Leibig's motion.
Mike Stollenwerk, president of the Fairfax County Privacy Council, said, "I think the courts need to explore this, and I would hope they'd find you at least need probable cause in such cases."