Virginia court: Suspect's rights weren't violated by warrantless GPS tracking

By Tom Jackman
Washington Post Staff Writer
Wednesday, September 8, 2010

The rights of a convicted sex offender, who was being tracked as a suspect in a string of sexual assaults, were not violated when Fairfax County police secretly placed a global positioning system device on his vehicle without a warrant, the Virginia Court of Appeals ruled Tuesday.

The ruling creates a precedent in Virginia, but only adds to conflicting rulings about whether putting a GPS tracking device on someone's car violates that person's right to privacy.

In the federal D.C. Circuit Court of Appeals last month, the court ruled that placing a GPS device on a man's Jeep for four weeks violated his Fourth Amendment right to privacy, and state appeals courts in New York and Massachusetts ruled last year that warrantless use of a GPS device violated their states' constitutions.

But a federal appeals court in California ruled in January that the tracking of an Oregon man with a GPS device was legal, as did a federal appeals court in Illinois in 2007. In the latter ruling, Judge Richard A. Posner wrote: "One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States."

The U.S. Supreme Court is expected to take up the issue soon.

In Virginia, the challenge was raised by attorneys for David L. Foltz Jr., who was suspected of attacking 11 women in eastern Fairfax County in 2008, many in the Falls Church area. Detectives focused on Foltz because he worked in the area and had been convicted of rape. He had served 17 years in prison and was released in 2007. He was registered as a sex offender and required to attend counseling, and when Fairfax investigators checked on him, they found the times of the attacks were consistent with his work and meeting times.

So on Feb. 1, 2008, detectives placed a GPS device inside the bumper of a van Foltz used for work; the detectives did not get a warrant to attach the device. The van was parked on the street in front of Foltz's house. Fairfax police later told defense attorneys that they had used the tactic 46 to 61 times between 2005 and 2007.

While watching the van, via the GPS device, in real time Feb. 5, police observed that the driver appeared to be cruising in and out of neighborhoods. That night another sexual assault occurred, and GPS data showed that Foltz's van was parked nearby.

The next day, police followed Foltz, without the help of the GPS because he drove his truck, and witnessed him tackle and drag a woman. He was arrested, convicted of abduction with intent to defile and given a mandatory life sentence for his second felony sex offense.

Judge Randolph A. Beales, writing the appeals court's opinion, said, "the actual act of simply placing the GPS device in the bumper of [Foltz's] work van conveyed no private information to the police and because [Foltz] did nothing to prevent the public from observing the bumper, we find he did not exhibit an expectation of privacy in this area of the van."

Beales also said that "the police used the GPS device to crack this case by tracking appellant on the public roadways -- which they could, of course, do in person any day of the week at any hour without obtaining a warrant. . . . As observing a person's work van on the public streets is not unconstitutional, the police's use of the GPS system to track [Foltz] while he was in the van on the public streets likewise did not violate the Fourth Amendment."

Beales said that Foltz's case differed from the recently decided District case because police tracked the suspect there for more than two months. He acknowledged Judge Posner's fear of overuse of the technology but said that wasn't at issue here.

Christopher Leibig, Foltz's attorney, said he would appeal. Leibig said the appeals court's opinion was "well reasoned, and does recognize that blanket GPS tracking is a substantial issue. But we respectfully disagree that Foltz's rights were not violated by the tracking."

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