Back in September 2010, I noted that the Court of Appeals in Virginia had agreed to hear a case involving the use of GPS to track a man suspected of sexually assaulting women. The GPS device had been place in the bumper of his work van.
Thanks to Bob Gelman for letting me know that the court issued its opinion on April 5 in Foltz v. Commonwealth of Virginia. After rehearing the case en banc, the court upheld the conviction.
As background, after first having some suspicion as to the defendant’s role in a series of crimes based on modus operandi and matching up his probation meetings with the times and locations of assaults, on February 1, 2008, the officers attached a GPS system to the bumper of appellant’s assigned work van while it was parked on the public street in front of his residence. They did not obtain a search warrant prior to doing so nor did they obtain his employer’s permission.
Based on their ongoing review of the GPS data as well as assault data, their suspicion of him increased and they decided to follow him in real-time visual surveillance. As a result, they apprehended him in the act of assaulting a woman.
Foltz moved to have all of the evidence suppressed, arguing that the lack of a warrant violated his Fourth Amendment rights. The court ruled it admissible, and Foltz appealed on a number of grounds, including that the police officers’ eyewitness testimony was the “fruit of the poisonous tree” as there had been no warrant.
The Court of Appeals did not really get to the issue of the warrant in their opinion. They write:
From our review of the record on appeal, we conclude that the trial court did not err in denying appellant’s motion to suppress the eyewitness testimony of the police officers. We reach this conclusion without addressing whether the use of the GPS device, attached to employer’s van assigned to appellant, without first obtaining a search warrant, violated appellant’s rights under the Fourth Amendment of the United States Constitution and Article I, Section 10 of the Virginia Constitution.
Two of the justices, in their concurring opinion, however, noted that they felt the court should have addressed the Fourth Amendment issue as it had been raised and briefed. They indicated that in their opinion, there had been no violation of Foltz’s Fourth Amendment rights and that should have been the basis for affirming the trial court’s ruling. In their analysis, they note that although the use of warrantless GPS surveillance could raise Fourth Amendment issues, as applied to the facts of this specific case:
This case does not involve appellant’s home or even appellant’s own property. Especially as this case concerns a van owned and regulated by appellant’s employer, the circumstances in this case certainly did not violate appellant’s own privacy protections under the Fourth Amendment.
Justices Beales and Haley offer other arguments and analysis as to why the use of warrantless GPS as used in this specific case did not violate the Fourth Amendment. Their opinion makes for interesting reading, as does Justice Humphrey’s response to them.