Virginia appeals court upholds warrantless use of GPS, 11-0

Posted: 4:48 pm Tue, April 5, 2011
By Associated Press

RICHMOND, Va.  — Fairfax County Police did nothing wrong when they failed to get a warrant before using GPS technology to track a registered sex offender’s movements, the Virginia Court of Appeals ruled Tuesday.

The unanimous decision by the full 11-member appeals court affirmed a three-judge panel’s ruling in a case that prompted warnings of Orwellian snooping by the government.

Police were investigating a series of sexual assaults in northern Virginia in 2008 when they focused on David L. Foltz Jr., a registered sex offender on probation. Without first obtaining a search warrant, they planted a global positioning system device on the bumper of the van that Foltz drove for a food services company and tracked him as he drove around.

After GPS data indicated the van had been near the scene of another sexual assault, police decided to follow Foltz in person. They intervened when they saw Foltz knock a woman to the ground and try to unbutton her pants. Foltz was convicted of abduction with intent to defile and sentenced to life in prison.

On appeal, Foltz argued the evidence against him should be suppressed because the use of the GPS device violated his privacy rights and his Fourth Amendment protection against unreasonable search and seizure.

Writing for the appeals court, Chief Judge Walter S. Felton Jr. said the issue could be resolved without addressing the constitutional issues raised by Foltz.

“The assault the officers observed was a new and distinct offense from the previously committed crimes the officers were investigating, and sufficiently independent of any information obtained by them from the GPS tracking device,” Felton wrote.

Judge J. Randolph Beales wrote a separate opinion concurring in the decision to affirm Foltz’s conviction, but arguing that the appeals court should have done so based on the constitutional issues.

“The government could potentially abuse this technology in an Orwellian manner by truly invading the private lives of individuals without any constitutional justification,” Beales wrote. However, he said that did not happen in this case.

Beales noted that Foltz did not own the van and that it was parked on a public street, where he had no reasonable expectation of privacy, when the GPS device was attached.

Kent Willis, state executive director of the American Civil Liberties Union, said police should have to explain to a magistrate their justification for GPS monitoring before being allowed to use the technology to track citizens.

“By all reasonable standards, placing a GPS device on your car should require a warrant,” Willis said. “Otherwise we run the risk of police being able to willy-nilly use GPS to follow anyone for any purpose.”

Foltz’s attorney, Christopher Leibig, did not immediately return a phone call.