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Court upholds warrantless GPS use

The warrantless placement of a GPS tracking device under the bumper of a work van driven by a registered sex offender did not violate his Fourth Amendment rights, the Virginia Court of Appeals said today.

In Foltz v. Commonwealth, an appellate panel upheld a 2008 decision by Arlington County Circuit Judge Joanne Alper.

Defendant David L. Foltz Jr. worked for a food services company and had permission to drive his company van for work, to his home and to probation-related appointments. Police checked his work schedule when they were investigating a series of unsolved sexual assaults in Fairfax, and discovered the times of the attacks were consistent with Foltz’s work and meeting times.

After a period of tracking Foltz with a GPS on his work van, police later observed him park his own vehicle, get out and don a jacket and gloves. They saw him run, grab a woman who was walking down the street, knock her to the ground, pin her and try to unbutton her pants. Officers stopped the assault and arrested Foltz, who was convicted of abduction with intent to defile.

Judge Randolph A. Beales said in the panel opinion that neither installation of the device nor tracking the van’s movements on public streets violated Foltz’s Fourth Amendment rights, especially since the police had reasonable, articulable suspicion that Foltz was involved in the sexual assaults before installing the device and tracking the van.

In a concurrence, Chief Judge Walter S. Felton Jr. said he did not disagree with the majority’s analysis. But he articulated narrower grounds for upholding the trial court decision. Foltz sought to suppress the officers’ eyewitness accounts of the assault they interrupted. The record provided no basis to exclude that eyewitness testimony, and Foltz’s conviction could be affirmed without addressing the Fourth Amendment GPS issue, Felton said.
By Deborah Elkins

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